Sununu weighs gender identity bills

Monitor staff
Published: 7/17/2019 5:38:31 PM

Last week, a bill allowing “X” to appear on the driver’s licenses of anyone who doesn’t identify as male or female became law without the signature of Gov. Chris Sununu, prompting relief from LGBT advocates and some pushback from conservative circles.

Now, the governor is facing decisions on two new gender identity bills.

A batch of bills sent over by the Senate president in recent weeks includes a sweeping proposal to add new anti-discrimination laws to schools that cover gender identity. A separate bill would amend and broaden the procedure to change one’s gender on a state birth certificate.

The first, Senate Bill 263, is a major overhaul. The proposed law would add anti-discrimination protections for students on a number of grounds, creating the possibility of a lawsuit in the courts against a school in violation.

Overnight, any student “excluded from participation in, (or) denied the benefits of” public school because of a range of factors could press for legal action and relief in a state superior court.

That includes any discrimination on the basis of age, sex, gender identity, sexual orientation, race, color, marital status, familial status, disability, religion or national origin, the law states.

Families or people looking for damages could go through their county’s superior court, approach the state’s Human Rights Commission or seek action with the help of the state’s Attorney General, according to the law.

Meanwhile, ahead of the bill’s implementation – which would kick off sometime in mid-September if signed – schools would be mandated to create a “coordinated plan” to address and respond to incidents of discrimination on campus.

The inclusion of gender identity mirrors a law passed last year that expanded gender identity to a number of anti-discrimination laws. And while encouraging to LGBT rights activists, it also supercharged a long running, widespread debate about transgender rights in schools.

Republican opponents said the new rules would be a burden to follow and enforce, and would open a floodgate of litigation. In an interview, Shannon McGinley, for Cornerstone Action, a conservative policy group in New Hampshire, said the bill was too vaguely worded as written.

“There are huge gaps in this bill – lack of definition, fiscal note and poor public policy – that protect no one from discrimination,” McGinley said Wednesday.

She argued that litigation would have a fiscal impact on public schools which was not properly reflected.

“No one wants any student to suffer discrimination,” McGinley said. “At the same time, defining discrimination - which this bill doesn’t do - would help school districts avoid the lawsuits to which SB 263 leaves them open.”

But the bill’s champions, who include the American Civil Liberties Union of New Hampshire, pushed back, arguing that the potential for legal action would give an appropriate remedy for victims of discrimination and push school districts to take action to improve their policies.

“I find those critiques interesting,” said Jeanne Hruska, policy director at the state ACLU. “If you’re afraid that our schools are going to get inundated with litigation because of a student non discrimination bill, you’re implying that there’s a lot of discrimination happening in our schools for which they could get taken to court for.”

The real problems, she argued, are bigger.

“I think the more alarming fact is that our students have gone to school year in and year out without comprehensive non-discrimination protections,” Hruska said. “And to us, that’s alarming and something that we were shocked to hear last year.”

Meanwhile, a separate bill landed on the governor’s desk to allow anyone over the age of 18 to change the gender listed on their birth certificates, if accompanied by a signed certification from a health care provider. Currently, those changes may only be made via a court order obtained after a person has had “sex change.” House Bill 446 would allow transgender or non-binary people to more proactively change their own markings.

McGinley said the proposed law would make the certificates “subject to revision for subjective reasons.”

“We say that’s not the role of a vital record,” she said.

Hruska countered that gender is rooted entirely in identity, and said the law was important to allow those who change their driver’s licenses to align their birth certificates to their identified gender as well.

Not allowing that, Hruska argued, would mean some state residents could have inconsistent records, something that could effectively “out” them to employers or landlords that require both documents.

“The purpose of identification is to accurately identify the person holding it,” she said. “Well, that can’t be true if you have two forms of ID that conflict with each other.”

Gauging Sununu’s position on any of these bills has been tricky for those on both sides. LGBT advocates see an ally in the governor, who last year signed into law House Bill 1319, a broad effort to add gender identity protections to existing anti-discrimination laws around housing, employment and public accommodations.

A follow-up bill this year to add gender identity protections to other New Hampshire laws, HB 608, has passed the Legislature but not yet arrived at Sununu’s desk.

But Sununu’s decision not to sign the driver’s license bill last week – and let it become law by default – has raised uncertainty for transgender rights advocates, particularly around the fate of its companion bill for birth certificates.

A spokesman for Sununu declined to publicly comment on the governor’s intentions Wednesday.

McGinley, whose organization has coordinated opposition efforts in the final days, admitted that she doesn’t have a crystal ball.

“Our supporters have reached out to him for weeks to encourage him to veto both bills, but I have no idea what Governor Sununu will do,” she said.

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