CONCORD – In a recent wave of legislation that impacts transgender people in New Hampshire, another bill was heard before the House Judiciary Committee on Wednesday. This bill, HB 1664, would establish standards to recover damages for “injury caused by gender transition surgery, administration of puberty blocking drugs, and/or the administration of cross-sex hormones.”
It is only one in a trend of local and national legislative and legal efforts as transgender rights and care have entered the crosshairs of culture wars raging nationally for the past decade.
Local and National Concerns for Transgender Rights
Alejandra Caraballo, a transgender lawyer and clinical instructor at the Cyberlaw Clinic of Harvard Law School, is an expert on legislation targeting transgender rights. A former attorney for the Transgender Legal Defense and Educational Fund, Caraballo fears for how far legislation may go in oppressing transgender rights.
“What am I not concerned about right now?” Caraballo said in an interview. She’s observed the rise of anti-trans legislation since 2013, when she said trans people became more widely recognized in pop culture.
“People became familiar enough with it that it became a concept that people could actually attack and hate,” Caraballo said. “Hate has to be taught.”
Caraballo said there’s over 400 bills throughout the country that address trans rights, but the ones that most have her attention now deal with legal recognition of transgender people. These pieces of legislation could potentially ban transgender individuals from changing legal forms of identification to match their gender identity.
“I think one of the things that people don’t understand about having an identity document that matches your gender identity is how much it outs trans people and how much it puts them at risk of violence,” Caraballo said.
The New Hampshire House recently passed a bill that would do exactly that: HB 396, which undermines transgender identification by bolstering state recognition of only male and female “biological sexes.” While the State Senate has yet to vote on this bill, Caraballo is concerned about the erasure of trans identities if such bills are passed.
“Basically, trans people will never be recognized as the gender they identify as,” Caraballo said. The Trevor Project cites gender affirming recognition by peers and institutions as a contributing factor for lower rates of suicide or suicide attempts.
Recently, the New Hampshire House Education Committee heard a bill, HB 1205, that would ban “biological males,” or more accurately trans girls, from participating in girls’ sports in public and private schools, as well as higher education institutions.
“That kind of terminology is the way that they introduce being able to openly misgender trans people and talk about them in very dehumanizing, degrading ways,” Caraballo said.
Caraballo previously represented asylum-seeking trans Latina women for the New York Legal Assistance Group. She said some of her transgender clients sought out housing and employment after coming to the U.S., only with a passport from their country with their assigned sex at birth to identify themselves. In many cases, Caraballo said, showing that ID to a landlord or employer who saw their gender identity did not match the documents meant they were denied housing and jobs—even in places like New York City.
“Historically what that’s meant is trans people didn’t have many other options other than to engage in survival sex work, to be able to just live, because they couldn’t get formal employment or housing,” Caraballo said. “That’s how important identity documents are.”
Caraballo emphasized these types of bills could put trans people at greater risk of violence and discrimination, during moments as simple as buying alcohol in a convenience store.
In New Hampshire, gender affirming care has recently come under fire as well, after the House passed HB 619, which prohibits gender-affirming surgery for children under age 18.
During the public hearing for HB 619, Rep. Seth King, R-Whitefield, took a moral stance that gender affirming care is wrong, echoing fears of parents who claim their children are being “indoctrinated” into the LGBTQ+ community and transgender identities.
This fear, Caraballo said, manifests into hate over what people do not understand about the transgender community. In late 2021 and into 2022, Caraballo observed language like “groomer” and “sexual mutilation” entering the narrative about LGBTQ+ people and trans youth.
“The terms became much more incendiary,” Caraballo said. “You started to see, like trying to paint trans people and the existence of trans people as a threat to children.”
Caraballo said that the increase in LGBTQ-identifying youth comes from greater social acceptance and representation that has created a more inclusive environment for children to come out. But that increase, she said, is minute.
“We’re talking about astronomically small numbers of youth who even medically transition,” Caraballo said. “The narrative doesn’t actually meet reality when you look at the numbers.”
A report released in January by the Public Religion Research Institute, or PRRI, found that 28% of Gen-Z identify as LGBTQ—but majority (15%) of that sect identified as bisexual, with 5% identifying as gay or lesbian and 8% identifying as something else. The report did not include how many identify as transgender, but Caraballo clarified that many transgender-identifying youth are nonbinary and do not undergo any surgery or hormonal treatment.
Controversy Emerges from HB 1664
The bill heard before the House Judiciary Committee, HB 1664, that broadens medical malpractice specifically in gender affirming care may only address a small fraction of New Hampshire youth that seeks out such care, based on what Caraballo said and current statistics. The timing of the bill coincides with the recent passage of HB 619 in the House—which bans gender affirming surgeries for children under age 18—making HB 1664 almost unnecessary if the Senate passes HB 619 as well.
Rep. J.R. Hoell, R-Dunbarton, introduced the bill out of concern for minors who “may or may not have consented” to gender affirming care and were forced to deal with “unintended consequences” from it.
“They may not have the cognitive skills necessary to understand what they have been told to do or allowed to do,” Hoell said. “Who is liable during that period of time?”
Hoell argued that the doctor should be liable as the most knowledgeable adult in the situation, responding to push back from Rep. Marjorie Smith, D-Durham. Smith questioned why Hoell chose to go after physicians, especially if the providers are following the procedures as they should.
A core component of Hoell’s argument was how gender affirming surgeries in particular could cause consequences for transgender children’s reproductive systems, specifically if they decide to have children later in life.
“We might sterilize these minors before they are an adult,” Hoell said.
Healthcare professionals expressed concern over the bill on Wednesday, worried that HB 1664 could alter current medical malpractice legislation in detrimental ways for New Hampshire’s doctors.
“We’re concerned that it’s a slippery slope if you start to enumerate particular services,” said Matthew Houde, the Vice President of Government Relations for Dartmouth Health.
The bill expands upon the current malpractice law outlined in RSA 507-E, extending liability specifically for gender-affirming care and extending the duration of liability. Current law places a statute of limitations on medical malpractice action up to three years since the procedure, three years since discovery of injury or three years since when the injury should have been “reasonably discovered.” Under HB 1664, that limit would be extended to 20 years for minors who underwent gender affirming care.
Although Houde is not a medical professional, he offered insight to address Hoell’s concerns about infertility.
“Gender affirming care often results in infertility,” Houde said. “So, you’re setting up a provider for failure when having an actually successful outcome.”
Rep. Joe Alexander, R-Goffstown, prompted Houde about if gender transitioning surgeries happen at Dartmouth Health. Houde said they do not, but the concern of Dartmouth Health stems from the hormone therapy they do provide and the legal consequences of the bill.
“We’re also significantly concerned about changing the paradigm of medical malpractice,” Houde said.
Ava Hawkes, the Director of Advocacy for the New Hampshire Medical Society, echoed Houde’s points in her testimony against the bill.
“We continue to oppose efforts that dissuade our providers from providing this care out of fear of litigation,” Hawkes said.
Rep. Bob Lynn, R-Rockingham, challenged Hoell’s bill as well. “Rather than expose the doctor to the potential of lawsuit, isn’t what you really want is to prevent minors from being able to consent, or the parents from being able to consent?” Lynn asked.
Hoell responded that he didn’t want an outright prohibition, but instead to have the legal system decide if harm was done—and in his eyes, the result of infertility from the surgery is grounds for malpractice litigation.
Stephen Scaer, a Nashua resident and former Republican candidate for State Senate, testified in support of the bill, wanting to “hold the medical industry accountable.”
“No one can give informed consent if the parents are threatened with their children’s suicide, or if they’re given false information,” Scaer said. He read from the words of detransitioner Prisha Mosely, who claimed gender affirming care is a “fraudulent farse” full of “manipulative language.”
Molly Brennan of Weare said HB 1664 was just another in the slew of “trans eradication bills” in her testimony before the committee. Previously, she ran a community space for trans artists in Chicago, she said.
“The problem that they had was not that they had been medically injured,” Brennan said. She emphasized that there is a substantial process for adults, and especially children, to access gender affirming care to begin with, and they are informed of the likelihood of sterility and their options in case they want to have biological children. The real issue here, she argued, was a social one.
“The struggle is about people accepting them. Their families, their classmates, their coworkers,” Brennan said. “That is where the injury happens. It isn’t largely, by the numbers, because of the care that they receive.”
Brennan encouraged the committee to instead address the problem of how people are treated, rather than medical care for transgender people.
“The agenda is to get rid of trans people,” Brennan said. “It is not compassionate, it is not kind, it is not caring for children. It is to eradicate trans people.”
In addition to HB 1664, numerous bills have emerged early in the New Hampshire Senate and House that impact trans rights, especially targeting trans youth. One of the most polarizing of those bills is SB 341, which would compel teachers to out LGBTQ+ students to parents and legal guardians under threat of termination. The Senate has yet to vote on this bill.
