HB 396 Balances Equality, Privacy and Safety

The below op-ed, by State Representative Robert J. Lynn, was originally published in the Union Leader on May 29, 2024. Representative Lynn, R-Windham, is chair of the House Judiciary Committee. He is a former Chief Justice of the New Hampshire Supreme Court.

HB 396 has been passed by the New Hampshire General Court and is awaiting Governor Sununu’s signature. Contact him with your support of this bill today! Call 603-271-2121 or email governorsununu@nh.gov.

After being passed by the House and the Senate, HB 396 is now on its way to Gov. Chris Sununu’s desk. This important legislation amends New Hampshire’s Human Rights Act to permit, but not require, public and private institutions to make classifications based on biological sex in three narrowly tailored and specifically defined circumstances:

In the usage of lavatories and locker rooms designed to accommodate multiple persons;

In athletic events in a sport or activity in which physical strength, speed, or endurance is generally recognized to give an advantage to males;

In the operation of prisons or other institutions to which persons may be committed involuntarily.

In these three circumstances, the Legislature found that separating persons based on their biological sex serves the compelling state interests of protecting the privacy rights and physical safety of both transgender persons and others that may be affected by the classification.

Unlike classifications based upon race, which are almost always unconstitutional, when dealing with classifications based upon sex, the principle of providing separate-but-equal treatment can be used when there are strong and legitimate reasons for doing so. If that were not the case, the federal law known as Title IX, which (among other things) provides for equality of opportunity for men and women in college sports, would not permit the University of New Hampshire to have separate men’s and women’s basketball teams.

The three circumstances covered by HB 396 are ones in which a public body, such as a school or a private company, should have the ability to protect the privacy rights of both men and women by not allowing the mixing of biological sexes during the inherently private activity of using a lavatory, showering, changing clothes, etc.

When HB 396 came before the House Judiciary Committee, we received disturbing information from New Hampshire parents about their daughters being bullied by biological males in restrooms and locker rooms. This is an experience that no student or parent should have to endure. Unfortunately, in the absence of a bill such as HB 396, New Hampshire school districts will continue to feel paralyzed to take action to protect students from these situations.

Similarly, athletic organizations should have the ability to determine that it is inherently unfair (and often unsafe) to allow a post-pubescent transgender male to compete against females in sports such as wrestling, basketball, tennis, and other sports in which strength, speed or endurance matter. And the special security concerns applicable to correctional-type facilities make it imperative that classifications based on biological sex be allowed. Indeed, in the prison setting, even racial segregation has been allowed if necessary, for example, to protect inmates from race-based prison gangs.

In their opposition to this bill, some Democrats have made no secret of their desire to outlaw all sex separation in these areas. Progressives did not always hold such views.

In 1996, Justice Ginsburg’s opinion in United States v. Virginia referred to sex differences as “inherent,” “physical,” and “enduring.” Quoting another Supreme Court justice, she noted that “the two sexes are not fungible.” For these reasons, she recognized sex separation can sometimes benefit both sexes. In contrast, many Democrats now believe even our prisons must be separated based on self-declared gender identity alone — even if a prisoner has never received any medical transitioning treatment.

In California, this position has resulted in women prisoners being locked in cells with men with male genitals. The recent vote on HB 396, in which all Senate Democrats opposed the bill, portends a real danger that Democrats could impose this same policy here in New Hampshire if they are ever in a position to do so.

Recognizing biological sex remains good constitutional law and is a longstanding part of our legal tradition. Legal scholars have shown that sex-separate bathing areas have a long history in cultures from ancient Egypt to Japan. Even President Joe Biden’s Department of Education has recognized that separating people based on their biology, rather than their gender identity, is sometimes allowed under Title IX.

Aside from the three specific circumstances discussed above, HB 396 makes no other changes to New Hampshire’s Human Rights Act. For example, firing a biological male from employment because he identifies as a woman is discrimination based on gender identity. Such discrimination is, and will remain, illegal, as will discrimination against transgender persons in all other areas covered by the Human Rights Act.

New polling by New Hampshire Journal shows that 74% of Granite Staters believe that biological sex separation should be allowed in restrooms and locker rooms, while only 10% believe it should be banned. I hope that you will join me in urging Gov. Sununu to sign this bill and to side with the 74% of Granite Staters who support privacy, dignity, fairness, and common sense.

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