Bathroom Bill (HB 478, 2017)

Submitted to House Health, Human Services and Elderly Affairs Committee by Shannon McGinley, February 21, 2017.

Please vote Inexpedient to Legislate on HB 478, which has been introduced as an anti-discrimination measure.

Let me begin by saying that every human being has inherent dignity and deserves to be valued and respected. The motivation of this bill no doubt comes from that desire to respect those who may feel they are suffering discrimination, and that motivation based on respect is admirable. I would urge the committee, however,  to consider the full implications of this change of law.

First are the larger implications in this somewhat small addition of language. While the words added to the law are small in number, they are not inconsequential – in fact, they strike at the very foundation of our laws and how those laws apply to us as individual citizens. By adding the term “gender identity” to our discrimination laws, we would be moving beyond objective, measurable qualities and into subjective qualities that would be impossible to legally parse.

This change would also enshrine in law a dangerous dualism. The “gender identity” ideology denies the truth of the physical world and embraces only the subjective feelings of the mind. It creates a false dichotomy, denying that we are embodied persons. But we are embodied persons. Our anatomy, physiology, perception, and behavior is intimately integrated in us as human persons. We see this in scientific acknowledgement that meditation, which is an exercise of the mind, reduces bodily inflammation and prevents disease or that diet and exercise increases memory and positively impacts mental health.

Our laws have at their foundation the governance of embodied, integrated human persons. The law does not govern human minds – it cannot because human minds alone cannot act. Our law governs human persons, who are always and everywhere embodied, and those embodied persons always and everywhere have a sex that is integral to their embodiment. By embracing and enshrining in law an ideology that denies the truth of the integrated human person, we are – however unintended – putting at risk the vulnerable in our society and undercutting existing laws enacted to protect and equalize those who face discrimination based on objective, physical characteristics.

Unfortunately, it is women and children who disproportionately bear the brunt of the unintended consequences of this new “gender identity” ideology and the disembodied persons paradigm. At both the state and federal level, and in both private and public life, we have already seen just the beginning of these infringements. A few examples include:

  • Trans activists shouting down women at the Women’s March, calling them “discriminatory” for referencing the female anatomy.
  • Women are beginning to be pushed out of sports (or at least dominated) by men identifying as women, like in the case of martial arts competitor Fallon Fox who defeated her female opponent within the first couple minutes of the fight, damaging her orbital bone and requiring seven stitches. The damage may have continued had the referee not stopped the fight.
  • Existing, hard-won rights for breastfeeding mothers are being undermined in court. A woman was fired for insisting on accommodation to pump breast milk for during the work day. She sued on the basis of discrimination, but the court found that her employer did not act with discrimination because men can lactate too.
  • Bathrooms, showers, and locker rooms are being forcibly desegregated under the new “gender identity” ideology, erasing existing protections against sexual predators for women and girls.

Until recently, the law has sought to harmonize the principles of equality with inherent biological differences. By denying and undermining those true biological differences, we undermine laws that exist to equalize those biological differences.

In addition to these somewhat philosophical concerns about enshrining dualism in law, we also believe there are some very real, immediate consequences that would come to pass due to the passage of this bill. Specifically, we are concerned about the safety and privacy concerns that could be realized implementing this “gender identity” ideology into law as well as the effect this bill would have on religious entities.

Safety and privacy concerns aren’t limited by gender, and women and girls, in particular, are vulnerable to sexual predators in certain settings. Unfortunately, HB 478 has no enforceable provision to distinguish between a truly transgendered individual and a predator who is claiming to be transgender for the purpose of predatory or voyeuristic behavior. While the bill’s language does include provision that “that gender-related identity shall not be asserted for any improper purpose,” this provision is toothless against the subjective, individually chosen and unprovable “gender identity.”

We also hope that the sponsors will address these concerns for the safety and privacy of everyone, which are raised in good faith:

  • Under HB 478, could a shelter for abused women be forced to hire a male staff member who identifies as female? Would a women’s shelter be required to house men identifying as female, ignoring the trauma that a male’s presence might cause to abused women?
  • If a child’s physical safety in a public bathroom were to be violated by a predator pretending for criminal purposes to be the same gender as the child (and note that we are not referring here to anyone who intends no harm), would the child’s parent have a cause of action against the predator? Or might the predator escape civil liability by claiming that the pretended gender identity is authentic? How would the text of this law give sufficient legal grounds to effectively parse the subjective feelings of the accused?
  • If a business owner has sincerely-held religious beliefs about the nature of sex and sexuality, and if that person or entity operates a facility with bathrooms separated by gender, would HB 478 require that owners permit males to use facilities designated for females, and vice-versa?
  • If a or nonprofit operator with those same beliefs operates a sex segregated facility, would HB 478 require desegregation of the facility or allow the operator to maintain sex segregation within the facility?
  • Under HB 478, would the state of New Hampshire terminate contracts with nonprofit organizations who hold sincere religious beliefs? If so, how many New Hampshire residents would be affected by the resulting loss of services?

Because this bill would represent both a radical change in ideology in law as well as a potential infringement on the safety and privacy of many New Hampshire citizens, it is impossible for us to support this bill. We cannot accept promises to settle these issues later – now is the time to look at the unintended consequences of HB 478. We affirm the worth and dignity of all New Hampshire neighbors, but we feel that. HB 478 falls short in serving that dignity. We respectfully urge you to recommend ITL on this bill.