For supporters of HB 148, the issue is simple and straightforward: Cities, counties and school districts should be able to have single-sex facilities like bathrooms, locker rooms, and jails.
Opponents who showed up at Wednesday’s House Judiciary Committee hearing, however, said the issue is anything but simple, arguing that determining a person’s biological sex is a complicated matter indeed.
“Biological sex — there’s no definition in the bill,” complained state Rep. Tim Horrigan (D-Durham). “What exactly is it?”
Rep. Jim Kofalt (R-Wilton), the bill’s prime sponsor, said the legislation shouldn’t be viewed as controversial, calling it a “Can’t we all get along?” bill.
The legislation says having single-sex bathrooms, locker rooms, sports competitions, and detention and correction facilities “shall not constitute unlawful discrimination based on sexual or gender identity.”
The sports issue is moot, given that the Trump administration has issued an order requiring schools to uphold Title IX, which specifically protects female athletes and mandates they be given single-sex opportunities to participate.
But the issue of whether biological males should continue to be allowed into women’s locker rooms and other private spaces continues to be hot.
Unlike last year’s legislation, which sailed through both chambers, only to be vetoed by outgoing GOP Gov. Chris Sununu, the current version is not a mandate, Kofalt pointed out.
“What this does is allow for school districts to distinguish between biological males and biological females,” he explained. “This bill simply says there’s discretion, that school boards should not be subject to lawfare, threats from special interest groups, or put between a rock and a hard place.”
Yet the word “biological” appeared to be a major hang-up for Democrats serving on the Judiciary Committee.
“You’re talking about biological sex,” Horrigan said. “But the terms you didn’t use were gender identity and gender expression. Why do you think that matters more than a person’s gender identity or gender expression?”
And Horrigan’s question, “What is biological sex?” left Kofalt visibly bewildered.
“Practically speaking, I think, we know what males and females are, we have known that for thousands of years, I don’t see a need to define it,” Kofalt answered.
State Rep. Eric Turer (D-Brentwood) also claimed to find the biology issue confusing.
“I look at biological definitions of sex and I see at least four possible ways you could do it, which could be different at different points in people’s lives, and can also be different at the same point in people’s lives,” Turer said before listing them. “Chromosomes, gonads, hormones, and secondary sexual characteristics.
“Those are four possible ways I can imagine them. I’m wondering, without a definition, how might anyone use this bill to make policy.”
(Among healthy mammals, the chromosomes, gonads, hormones and secondary sexual characteristics all align with being either male or female except in rare circumstances, according to biologists.)
Kofalt said Turer’s question “implies there’s confusion as to male and female.”
“I would assert once again I really do not believe that is the case,” he added. “I believe we know what a biological male is. I think we know what a biological female is.
“This bill allows for discretion and latitude for local policymakers to clarify those things and set a policy that everyone can live with.”
A NHJournal/Praecones Analytica poll completed last spring found a whopping 74 percent of Granite State voters support allowing school districts to have separate locker rooms and restrooms. Only 10 percent were opposed.
Meanwhile, Sununu’s reasoning behind vetoing last session’s proposal was that it tried to “solve problems that have not presented themselves in New Hampshire, and in doing so invites unnecessary discord.”
Opponents, including Executive Councilor Karen Liot Hill, a Democrat, frequently referenced Sununu’s own words Wednesday. Others, like state Rep. Alice Wade (D-Dover). spoke about their personal experiences.
“I am a trans woman, and I’m going to bet that most of you would not have known that unless I had told you,” Wade said. “All of my documents say female. I have had bottom surgery. I have had voice therapy.
“I have been transitioning for over six years now. Just this morning, I used the women’s restroom down that hall with no issues.”
State Rep. Loren Selig (D-Durham) called Kofalt’s proposal “extremely discriminatory.”
Supporters, however, cited their own personal experiences as well. Betsy Harrington, a mother from Deering, referenced last fall’s controversial participation of a biological male identifying as a transgender female playing on the Kearsarge Regional High School girl’s soccer team.
She recalled a game the Hillsboro-Deering High School girls soccer team played against Kearsarge where several players refused to take the field.
“I don’t want to swear, but it was a sh*t show,” Harrington said. “There was media. Kids weren’t playing. Kids were upset. It’s just going to keep happening.”
The biological male player in question, junior Maelle Jacques, also testified against the bill Wednesday.
“I’m a 17-year-old girl from Newbury,” Jacques began. “I’m perceived as a threat for no reason other than the utilization of fear as a political tactic.”
“Banning me from the restroom does nothing but pin me as a pariah in school. Using the male restroom would be dangerous because the entire school knows and has known for years that I am not a male.”
“Same with locker rooms, I would face the same issues or even worse.”
Beth Scaer of Nashua voiced support for the bill and blamed Sununu for signing into law a 2018 transgender anti-discrimination bill.
“Gov. Sununu thought he was integrating lunch counters in the Deep South, but what he was doing was stripping away the privacy and safety of women and girls,” Scaer said.
And some of the most passionate opposition testimony came from Wendy Stallings, a science teacher at Phillips Exeter Academy.
“It is far more likely that our children will be sexually abused in church than they will be sexually abused in a bathroom by a trans person,” Stallings claimed. “If someone proposes a bill that says anyone who identifies as Christian should not be allowed to use a bathroom — because I knew somebody once who said he was a Christian and he sexually abused someone — we would all agree that is discrimination.
“Now if you substitute that with trans, it’s still discrimination.”
Supporters of the bill said invoking sexual abuse in a bathroom by a trans person is problematic for opponents. National attention first began to turn on this issue after two girls were assaulted by a male identifying as female in public school bathrooms in northern Virginia. The Loudon County school district, which tried to cover up the crime, was slapped with a $30 million lawsuit.
The same perpetrator later assaulted another female student at a different school before eventually being convicted in juvenile court.
The Loudon County school superintendent at the time was later found guilty of retaliating against a teacher who cooperated with the investigation into sexual assaults on campus.
