The Unintended Consequences of Gender Identity as a Protected Class (HB 608)

Based on Cornerstone testimony provided to Senate Judiciary 5/21/19.

HB 608 is yet another bill arising out of New Hampshire’s ill-advised addition of “gender identity” – a fluid, self-defined, subjective phenomenon – as a protected class under anti-discrimination law. Such law had previously protected all New Hampshire residents based on objective criteria such as race and age. Now, HB 608 seeks to expand anti-discrimination law based on gender identity.

This is not a matter of statutory housekeeping or simple updating.  HB 608 raises serious questions that have not been addressed yet in the legislative process. Cornerstone recommends an “inexpedient to legislate” vote on the bill. The vote has not yet been scheduled in the NH Senate.

Our concerns include HB 608’s potential effect on gender equity, health care facilities, religious liberty, taxpayer rights, and insurance law.  

  1. As HB 608 applies to public accommodations, it would revise RSA (state law) 354-A in a manner implying that women’s’ shelters, sports leagues, and fitness facilities and their changing areas could no longer be reserved for individuals of one biological sex. Would there be anyplace left of which someone could say “this is a space reserved for biological women”? It seems not, under the language of HB 608. Let legislators who strive for that outcome be honest and aboveboard about their goal.

  2. As the bill applies to residential care and health facilities, would it require every state-licensed hospital to perform surgeries and administer drugs for gender reassignment? If a facility were operated under ethical directives that rule out medical cooperation with the denial of one’s biological sex (such as a religious hospital and its related facilities), would that facility fall afoul of HB 608?

  3. This bill seemingly would require taxpayers to pay for all surgical treatments for a person diagnosed with gender dysphoria who is located in a state mental health institution.
    • Are prisoners (i.e. people convicted of crimes) placed in the state mental health system if they assert gender dysphoria? Would the state have to pay for their treatments—including treatments that would result in a male patient being relocated into a female prison?
    • Does the state routinely pay for cosmetic surgery for other individuals in the state system? Does this open the state to have to pay for plastic surgery as part of gender reassignment (i.e. amputation of healthy body parts) if a doctor claims such procedures are necessary for the patient’s mental health?

  1. HB 608’s addition of “gender identity” to New Hampshire health care insurers’ non-discrimination requirements presumably means that no insurer could decline to cover or pay for gender reassignment procedures and drugs. This reminds us of another ill-advised insurance mandate, this one on the federal level, which proved unsustainable because of its conflict with religious liberty. That federal provision was the contraceptive mandate, which attempted to require employers providing health insurance to their employees to cover contraception, even if that violated the religious beliefs of the employer. By the same token, HB 608 as written would violate the religious beliefs of some of your New Hampshire neighbors, who wish not to be compelled to help provide amputation of healthy organs and administration of cross-sex hormones to children and adults alike.

HB 608 is not simple, and it not merely “housekeeping.”  Even putting aside the larger question of whether the feelings-based concept of “gender identity” should function as a protected class under anti-discrimination law, this bill has potentially far-reaching unintended consequences. We advise an ITL vote.