Senate Testimony on HB 396, relative to state recognition of biological sex

Below are the notes from the testimony on HB 396 given before the NH Senate Judiciary Committee by our executive director, Shannon McGinley. You can watch a video of her testimony here.

• I want to address the federal Department of Education’s recent final rule—which is 30 CFR Part 106—and how it might relate to this bill. Although I’m not an attorney, the facts can be readily verified with any knowledgeable attorney.
• First, there’s some misunderstanding about what the final DOE rule actually claims to do. Some media reports have described the rule as prohibiting all differentiation based on biological sex. 
• Actually, in several places, the Biden DOE is now saying Title IX allows people to be separated based on biological sex, as opposed to gender identity, in—quote—”sex-separate living facilities and sex-separate athletic teams,” unquote. You can see this in the DOE’s own Final Rule Summary on its own website, or in the full rule under Section 106 point 31, subsection 2, which actually uses language pretty similar to HB 396 as passed by the House. 
• This should be important to the Senate for at least a couple of reasons. 
  • First, you can see that the position taken by the Biden DOE in this new rule is significantly more conservative than the views of the New Hampshire Department of Justice over the past two years. The DOJ has repeatedly shown up at committees and falsely claimed that federal law somehow prohibits sex separation in student athletics. 
    • The fact that even the Biden DOE now disagrees with that vindicates what Cornerstone has been saying these past years—that the DOJ has been taking a progressive activist position, not giving a straightforward description of the law.  
  • Secondly, when you look at how much overlap there is between HB 396 and the DOE rule, you can see that it would make no sense to try to weaken this House bill as a compromise.  
    • HB 396 as introduced—which simply clarified that using biological sex is allowed—was already so moderate that it would’ve sounded like a joke and a piece of satire even 10 years ago. 
    • But this House version you have now is already an even more watered-down version of that bill. The text in front of you is the most watered-down thing that could possibly be effective at affording any protection to women and girls. Weaker language would actively worsen the situation of girls in Milford, Inter-Lakes, and other districts who are being bullied and treated unfairly and whose privacy is being violated right now.

• Finally, let me mention the most objectionable part of the Biden DOE rule. On page 1270 of the final rule, it says that—while teams and athletic facilities can be sex-differentiated—girls in restrooms and locker rooms must be forcibly exposed to the genitals of males. 
  • While we obviously strongly oppose that policy in the rule, it does not create any legal problem for this bill or even a legal challenge. 
  • This is a bill that says that New Hampshire state law does not prohibit sex separation in these circumstances. 
  • Even if the Biden administration was right to say that federal law does prohibit sex separation, there would still be no contradiction or grounds for any legal challenge whatsoever to this bill. 
  • You can see that if you just use simple logic. There would be a contradiction and a challenge only if state law mandated what federal rules prohibit. 
  • If schools do choose to go against the DOE rule and set up a legal challenge, this bill is not requiring them to do that. That could happen tomorrow with or without this bill.
  • Of course, Cornerstone’s hope is that is that the new DOE rule will be eventually struck down. But, in the meantime, passing this bill will not create any conceivable grounds for any kind of federal legal action against New Hampshire.