By KATHARINE WEBSTER, InDepthNH.org

The House Judiciary Committee on Wednesday held back a bill that would have amended the state’s antidiscrimination law to limit bathroom and locker room use, sports teams and institutional placements based on a person’s physical sex at birth.

The aim of Senate Bill 268, according to its primary sponsor, Sen. Kevin Avard, R-Nashua, is to allow schools, businesses, sports facilities, prisons and other institutional settings to protect “women’s spaces” and privacy from trans girls and women, whom he described as “biological males,” without being sued for discrimination.

In executive session, the committee voted along party lines to retain the bill, in part to see what other, similar legislation passes. Democrats wanted the committee to kill it, but Republicans disagreed. The committee could vote on it or amend it at a future meeting, or it could let it die in committee.

At the same time Wednesday morning, the House Education and Policy Committee heard testimony on a similar, narrower bill sponsored by Avard, dubbed the “Protection of Women’s Sports Act.”

Senate Bill 211 would bar trans girls and young women from playing on girls’ or women’s sports teams or using girls’ and women’s locker rooms, and would allow any athlete to sue a school, school district or public college or university if she suffers “direct or indirect harm” because the school failed to follow the law. The bill exempts K-12 teams and intramural or club teams, and allows for a third option: co-ed sports teams.

Avard said the intent of SB 211 is to protect girls and young women from invasions of privacy as well as unfair competition and potential injuries by trans athletes who might be bigger and stronger.

“What we’re trying to do is protect biological females from biological males who do have an advantage,” Avard said. “Even if they’re on hormone blockers, they might have a biological advantage.”

As in his testimony on SB 268 last week, Avard said that there was a huge national outcry on the issue, with parents demanding that girls be protected. However, public comments registered on the state Legislature’s website tilted heavily in opposition to both bills.

Asked by one committee member why trans girls would be banned from girls’ sports teams but girls would not be barred from participating on boys’ teams, Avard said he was open to an amendment that would ban girls from boys’ teams, since the bill would allow co-ed teams.

Michael Haley, of GLAD Law, testified against the bill, saying it’s substantially similar to one that passed last year. That law was put on hold by a federal judge after two of the four transgender girls playing on high school teams in New Hampshire sued the state education commissioner. They are represented by GLAD Law and the ACLU of New Hampshire.

Haley recommended that the committee find the bill “inexpedient to legislate,” thereby saving the state time and money – and more costly litigation.

“If this law were to pass, we would likely find ourselves in the same situation before the same federal judge,” he said.

Haley said the state can pursue a “middle ground” with policies that protect everyone, such as the previous policy of the New Hampshire Interscholastic Athletic Association, which says that it is up to school districts to decide whether a transgender child can play on a sports team that matches their publicly expressed gender identity, as long as that identity is “bona fide and not for the purpose of obtaining an unfair advantage in competitive athletics.”

However, after President Trump signed an executive order banning transgender participation in girls’ and women’s sports in early February, the NHIAA directed schools to comply.

“We share the concern about safety and fairness in women’s sports,” Haley said. “There are options … that will ensure that sports are safe and fair for all athletes.”

Other witnesses suggested that middle ground could be similar to the policies of other state and national athletic organizations, such as requiring that a transgender girl be on puberty blockers for a year before competing on a girls’ team.

Dr. Jennifer Smith, a physician who identified herself as a trans woman, said that she understood the concern about trans athletes who go through male puberty before transitioning. However, she said, once a person transitions and is on hormone therapy, they lose strength quickly – and it shouldn’t be an issue at all for younger trans girls who haven’t yet gone through puberty.

“Little trans girls are not a danger to anyone else,” Smith said. “Lots of cisgender girls have more testosterone than trans girls if they’re on puberty blockers.”

She and other witnesses noted that House Bill 377, which was discussed by the House Health, Human Services and Elderly Affairs Committee on Wednesday morning, would bar health care professionals from treating minors with hormones and puberty blockers. That bill was co-sponsored by Avard.

The same committee also heard House Bill 712 on Wednesday, which would ban breast reduction surgery for minors for the purpose of gender reassignment.

“It feels like the whole weight of the government is coming down on this small group of people who already face significant challenges,” said Mary Wilke, who testified on SB 211. “There has to be a better way of ensuring the safety of all athletes than by banning an entire class of people.”

However, state Rep. Bryan Morse, R-Franklin, said he wholeheartedly supported the bill. He said it does not discriminate because it allows for co-ed sports teams, which he said he would like to see in all school districts.

“Biological men have been infiltrating women’s sports,” said Morse, a member of the House Education and Policy Committee. “We’re reverting back in time, stripping women of their rights and private spaces for men who want to compete in women’s sports. … I will be voting for this with the utmost joy to protect biological women.”

Fellow committee member Rep. Loren Selig, D-Durham, asked whether Morse had any evidence or documentation of cisgender males in New Hampshire “who pretended to be transgender for the purposes of harassing women”?

Morse replied that he didn’t have any with him.

Rep. Hope Damon, D-Croydon, testified that national surveys show that 86 percent of transgender youth report having suicidal thoughts and 56 percent report attempting suicide. She quoted the Republican governor of Utah, Spencer Cox, on why he vetoed a similar bill.

Ultimately, Cox said that it came down to those numbers and three others: 75,000 high school athletes in Utah, four trans athletes, and one trans girl athlete. Damon said the numbers are similar in New Hampshire, which has about 45,000 student athletes, of whom four are trans.

Damon compared the fear around trans people to attitudes towards gay men and lesbians several decades ago, based largely on unfamiliarity and lack of connection.

“A very, very large number of people don’t know a person who is trans, or don’t know that they know somebody who is trans,” she said.

If the bill becomes law, Damon said, “I hope we can find ways to show these kids that we love them and that they have a place in our state.”

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