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N.H. bill regulating trans athletes and incarcerated people raises constitutional concerns

NHPR file

House lawmakers heard testimony Tuesday morning on a bill that would allow state entities to assign people to school sports teams, bathrooms, and prison facilities based on their sex assigned at birth, rather than their gender identity.

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HB 1180 modifies the state law covering birth records to allow them to categorize people as either "biological male or female human beings," a binary that is inaccurate and often considered offensive.

At a hearing before the House Health, Human Services, and Elderly Affairs Committee, proponents argued the bill could protect cis female athletes from having to compete on an “uneven playing field” by competing against transgender women.

Rep. Gerri Cannon, Deputy Ranking Democrat on the committee, called the bill in a statement "deeply disturbing, not only because of the ramifications that even the introduction of this has on further stigmatizing the transgender community, but also because it is unconstitutional."

Proponents also say it would protect cis female incarcerated people who don’t want to share a cell with someone who is transgender.

Rep. Katherine Prudhomme-O’Brien, a Derry Republican, is a co-sponsor of the bill. She says right now the prison system has only designated male and female facilities. She suggested housing incarcerated transgender people separately.

“I think it might be good to explore another option, which would be appropriate placement for trans inmates as well,” she said.

Frank Knaack is a policy director with ACLU-NH. He disagreed with Prudhomme-O’Brien's point and spoke in opposition to the bill. He says transgender people are more vulnerable to violence that’s endemic in prisons.

“I think it’s important that the state correct that issue and do so on an individual basis, but not to categorize entire people and segregate people based on those characteristics,” he said.

The New Hampshire Department of Corrections considers the placement of trans people on a case-by-case basis that is aimed at ensuring the incarcerated person's health and safety, and whether the placement would present management or security problems.

Holly Stevens, director of public policy at NAMI New Hampshire, says the bill's existence “sends a message to the trans community” and told committee members that “the longer it stays in this committee, the more harm it’s going to do.”

Sean Locke is director of the state's Civil Rights Unit in the Attorney General's Office. In his testimony, he said the bill could create confusion for schools, which are obligated by state law to prevent discrimination based on gender identity.

Peter Biello is the host of All Things Considered and Writers on a New England Stage at New Hampshire Public Radio. He has served as a producer/announcer/host of Weekend Edition Saturday at Vermont Public Radio and as a reporter/host of Morning Edition at WHQR in Wilmington, North Carolina.
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