By KATHARINE WEBSTER, InDepthNH.org

How do you “vet” whether someone is transgender? How do you decide who can use a women’s or a men’s bathroom and who can’t? How do you ensure fairness in women’s sports?

Those were some of the questions that legislators and others asked Wednesday in a lengthy House Judiciary Committee hearing on SB 268, which would change the state’s human rights laws to permit businesses and public institutions, including schools, to limit bathroom and locker room use, sports teams and institutional placements based on a person’s “biological sex” at birth. The bill defines biological sex as their gender at birth.

“People are crying out for some protection … whether it’s in the bathrooms, the schools or the prisons,” said state Sen. Kevin Avard, R-Nashua, the bill’s primary sponsor. “It allows private and public institutions to protect women-only spaces without fear of being sued.”

Avard said that he didn’t want to see a “biological male” walk into a bathroom being used by a group of fourth-grade girls, “whether they (the male) were mentally disturbed or have ill intent,” adding that gender dysphoria is classified as a mental disorder.

Rep. Alice Wade, D-Dover, a transgender woman, asked how the bill would be enforced.

“Do you carry around your original birth certificate?” she said.

Wade recounted a contrasting horror story, widely reported on national news, about Dani Davis, a 6-foot-4 woman working at Walmart who was threatened with a beating by a man while she was using the women’s bathroom. He yelled anti-trans slurs at her, assuming that she was trans because of her height.

In fact, she said, “Transgender people are four times more likely to be assaulted than cisgender women.”

She also said that the concern over transgender girls playing on girls’ sports teams was overblown, since it involved exactly four teenagers in the state. One of them was being harassed at soccer games, so Wade asked her if she wanted to come to the State House and testify.

“She said ‘No,’ she just wanted to be left alone to blend in and play soccer with her friends,” Wade testified. “Maybe we should just leave them alone.”

One man who testified, William Hamlen, said the issue of transgender women in sports went beyond the four athletes. He said he had to watch in horrified silence as his daughter, who was on the Dartmouth swim team, had to compete in the national championships against “a hulking male.”

“It’s not just because of those four (young athletes),” he said. “It’s because of the ideology of what those four represent, it’s what their teachers are teaching them behind closed doors.”

Hamlen said there’s also an easy way to enforce a person’s choice of bathroom, sports team or gym locker room: All New Hampshire driver’s licenses carry an “M” or “F” designation for someone’s sex.

Rep. Eric Turer, D-Brentwood, pointed out that in New Hampshire, you can designate your sex as M, F or X on your driver’s license.

He also said that some people, in particular those who are intersex, might have “male” DNA but appear female and vice versa. He asked whether schools could require a yearly DNA test for students who want to participate on girls’ sports teams.

Avard said his bill didn’t deal with enforcement, but simply prevented people, businesses and schools from being sued if they wanted to protect girls-only and women-only spaces.

Others on the committee were more troubled by the fact that one county courthouse could have one policy, and another county courthouse could have another. Ditto with school districts deciding whether to let transgender girls play on their sports teams.

And some witnesses said that while the bill might relieve individual business owners or public institutions of one type of liability, it could open them and the state up to more lawsuits because the bill is unconstitutional and would create “foreseeable harm” to transgender, nonbinary, intersex and gender nonconforming people, as well as cisgender women who have a more “masculine” appearance.

Rep. Heath Howard, D-Strafford, said the bill would legalize discrimination based on the whims of a particular business owner.

“I could say to any one of you, ‘You’re too effeminate, you’re too masculine,’ and kick you out,” he said. “If you open the door to any discrimination, it opens the door to a lot worse society.”

Mia Englebert, of Manchester, asked where she should go when she needs to use the bathroom.

“My (driver’s) license, issued by this state, says X. Where should I go?” she asked. “If we use the facilities affiliated with our assigned gender at birth, we’re running the risk of having violence enacted upon us, usually by men; and if we use the facilities affiliated with our gender identity, we’re running the risk of having violence enacted upon us by the state.”

She called the bill “monstrous,” and said its purpose was “to ban transgender people from public life.”

But Evelyn Ullman, Massachusetts coordinator for Democrats for an Informed Approach to Gender, a group that views gender-affirming care for minors as a threat to women’s rights and the bodily integrity of lesbians, gays and gender nonconforming people, disagreed.

She said the bill protects women’s rights, including in sports, based on “immutable laws of biology” that mean those who are genetically male will, in adolescence, develop greater size and strength than those who are female.

Without such legislation, “Women’s achievements become everyone’s achievements; women’s spaces become everyone’s spaces,” Ullman said.

Several current and former women athletes also supported the bill, including Betsy Harrington, of Deerfield, who said she is not opposed to girls playing on boys’ teams: She sued successfully over the right to play ice hockey on a boys’ team.

“I want people to be included,” she said.

But she is opposed to having biological boys on girls’ teams, she said. While in high school, her field hockey team played a team that included five boys.

“Of course they won the state championship, and girls got hurt,” she said. “That’s why we passed a bill about girls sports.”

The bill will come up for a committee vote in executive session next week.

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