Commentary by Timothy Horrigan; August 5, 2010
I actually missed the initial House Judiciary Committee hearings on HB415, "AN ACT adding certain terms regarding non-discrimination to the laws." The room was crowded, and I had been at gay marriage hearings all morning and much of the afternoon (February 5, 2009), so I didn't bother to testify. I hope I remembered to sign the "blue sheets" to express my support.
The text of the bill was quite simple. I am tempted to characterize it as a "housekeeping bill" because it merely extended existing anti-discriminatory language to transgendered people. The bill would have modified all the statutes which protect other minorities from discrimination, by adding "gender identity or expression" to the existing laundry list of (this varies slightly from statute to statute): "age, sex, race, color, marital status, familial status, physical or mental disability, religious creed or national origin, and on account of sexual orientation."
I was interested in this bill from the beginning for various reasons. I became even more interested in the bill after rightwingers started a smear campaign against this bill, characterizing it as "the Bathroom Bill." Basically, there was a paroxysm of panic about transsexual rapists invading ladies rooms. I got especially fired up after a wave of grossly insulting and often obscene emails in my legislative email box.
"Bathroom Bill" was a catchy name; I have used it myself, even though it is insulting and a misnomer. Technically, in the law books a "bathroom" is a room with a shower or bathtub in a private dwelling. A room in a public place where guests and workers go to relieve themselves is a "restroom." There are a variety of laws dealing with restrooms (and with bathrooms), but there are no laws making it a crime for boys to use the girls' room or vice versa. Moreover, there is no strict definition of "male" or "'female." (I think it is best to leave that distinction vague: not all men have XY chromosomes and penises, and not all women have XX chromosomes and vaginas.)
The bill came to the floor on Thursday, March 26, 2010, at the end of a grueling three-day session. The House Judiciary committee had split 10-10 after some Democrats crossed over to oppose the bill, even though the Speaker and the majority caucus leaders were in favor of it.
Rep. Lucy Weber and Nancy Elliott (whose career was destroyed in 2010 by an outburst during a gay-marriage hearing) wrote radically different blurbs:
JUDICIARY HB 415, adding certain terms regarding non-discrimination to the laws. WITHOUT RECOMMENDATION.
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Statement in support of Ought to Pass: This is a bill which simply adds the words "gender identity or expression" to the antidiscrimination and hate crimes statutes. This change is needed to protect transgendered persons or others with gender identity issues from job loss, housing discrimination and other discriminatory practices. Gender identity issues are not a matter of personal choice. They are often the result of chromosomal abnormalities and accompanying physical ambiguity. Existing language in the antidiscrimination statute, in the opinion of the Human Rights Commission, does not provide adequate protection for this population. Nothing in this bill will provide protection for sexual predators in public restrooms. Similar protections are already in place in 13 states and numerous political subdivisions. The level of fear and misunderstanding generated by this bill convinces the proponents of the urgent need for protection for this vulnerable population. Rep. Lucy Weber
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Statement in support of Inexpedient to Legislate: HB 415 is a complete violation of our citizens' rights. To make the entire 1.3 million residents of our state uncomfortable and afraid in the restroom is unconscionable and an example of the tyrannical minority pushing around the majority. This would also allow a man to enter the ladies locker room at the gym and the sauna. People are in various states of undress and are very often the only ones there. Men are at risk of women entering their private spaces and accusing them of sexual advances. Our children are at particular risk. When a child enters the restroom a predator of any sex could be there waiting and no one can say a word to them. All a man in a girls room would need to say if someone questioned him why he was there, is that he thought he was a woman and was just using the restroom. We need to protect the children of NH from sexual predators. Our neighbor to the south, MA, has experimented with this line of thinking and has all kinds of problems. Constituents reported that the unisex bathrooms in Europe are a haven for rapists. A law very similar to HB 415 passed in Colorado, has since become known as the "bathroom bill" because it has opened up public restrooms, once reserved to either men or women, to all genders depending upon their "gender expression" at that time. As you can imagine, this new law has also opened up an opportunity for sexual predators to use it as a "cover" to enter intimate areas in search of a victim. Gender confusion is NOT a biological disorder, but rather a psychological one and has been classified as such by the American Psychiatric Association. People with Gender Identity Disorder (GID) need compassion and treatment, not confirmation of their disorder through special rights. In addition, the NH bill also serves as a threat to the religious liberties of business owners in NH. A refusal to do business with someone based on a sincerely held religious belief would now violate the law. That threatens the religious liberties of every Christian, Jewish or Muslim business owner who operates a business on faith-based principles. New Hampshire already has the term "sexual orientation" in its anti-discrimination laws, it does not need to add "gender identity and expression" to it as well, as it will only cause confusion and open itself up for countless lawsuits. If someone were to challenge or not allow a professing trans-gender to use the restroom of their choice they could be charged with a hate crime. That case would go through the Commission on Human Rights. Another bill that has been recommended OTP by Judiciary Committee (HB 686) says that. If you are in question of a Human Rights violation the Plaintiff has the choice of court or the Commission. The Defendant does not. The Plaintiff can remove to the Court, after the commission's finding, but the Defendant cannot. The penalties can be as high as $50,000. So if you question why a man is in the ladies room, he can bring you before the Commission, they can fine you $50,000 and there is nothing you can do about it. Rep. Nancy Elliott
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I decided to give a floor speech, which would be my maiden speech. My prepared text was OK, but I diverged from it; the Republicans booed me, the Speaker had to gavel me down and tell me to stay on-topic, Lucy Weber was displeased with me, and the bill lost 181-189. Everyone hated the speech except Al Baldasaro (one of the most conservative members of the House), who said I spoke from the heart and into the microphone.
Here is my prepared text:
I rise in support of HB415. This bill is actually very simple: it guarantees that gay and transgendered people--- or even straight people who have an androgynous appearance--- have the same rights as anyone else. Not special rights... just the basic rights everyone else takes for granted.
I was disappointed by the ITL blurb for this note. It is, how should I put this gently, inconsistent with reality. The reality is that gay and transgendered people are no different from the rest of us. The reality is that similar bills have been passed in 13 states and many cities and counties without the dire consequences predicted in the blurb.
This bill, by the way, says nothing about bathrooms. It is not a bathroom bill. Plumbing fixtures are not mentioned at any point. If the opponents of this bill sincerely believe that this bill has anything to do with plumbing, I respectfully suggest that they move to have it referred to the Commerce and/or Science & Technology committees. I understand why lobbyists and outside pressure groups called this a bathroom bill: it's a catchy phrase, even though it is untrue and unfair.. But members of this body are obligated to be truthful and fair. Please vote for truth and fairness: please vote OTP on HB415. |
Shortly after my speech, the inimitable Fran Wendelboe (R-New Hampton) tried to make HB415 a restroom bill by adding an amendment designating the newly renovated ladies room on the third floor of the State House as a "unisex bathroom." (She used that term rather than "restroom.") Her amendment failed. The whole bill failed as well— or so it appeared at the time.
The next session day after March 26 was Wednesday, April 3. Officially, the March 26 session continued throughout the intervening 13 days. The Majority Leader, Mary Jane Wallner, traditionally moves at the end of the day's work "that the House stand in recess for the purposes of introduction of bills, receiving Senate messages, enrolled bill amendments and enrolled bill reports," and we traditionally approve the motion by a voice vote. We don't actually close the session until it is time to start debating the next session day's set of bills.
During this 13-day recess, two Democrats who voted against HB415 asked to reconsider their votes, and hence we were able to debate the bill again. The day of the second debate was also our annual Scots-themed "Plaid Day," and somewhat ironically there were several men wearing skirts that day. (I know those guys called their garments "kilts" —but a kilt and a skirt are the exact same thing.)
The Speaker stepped down from the podium to speak from the well in favor of HB415, which is highly unusual. Her speech was much better than mine. After (if I counted correctly) 23 roll calls on assorted amendments and other motions, the bill passed (unamended) and we sent it to the Senate. We only passed it by one vote.
On April 23, 2009, the Senate Judiciary Committee heard the bill, and I offered the following testimony:
HB 415: Written Testimony by Rep. Timothy Horrigan (D-Durham) April 23, 2009
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I urge the Judiciary Committee and the full Senate to vote Ought to Pass on HB415.
I am new here: this is my first term as a state representative. However, I am pretty sure I know what I am talking about when I say that bills dealing with restrooms would typically be handled by the House Commerce & Consumer Affairs Committee and the Senate Commerce, Labor & Consumer Protection Committee. ("Bathrooms" are rooms in residences which are used for bathing and related activities. Public facilities where no bathing regularly occurs are referred to in the RSA's and similar documents as "restrooms" or "toilets.") Some have said this bill is about keeping sexual predators out of public restrooms. In that case, the bill would end up right here in the Senate Judiciary Committee— but on the House side bills dealing with sexual assault would normally go to the Criminal Justice & Public Safety Committee. (By the way, our cities' and towns' police forces are already accustomed to dealing with gay and transgendered people. Our cops are not stupid and they are not naïve. They can tell the difference between an actual male-to-female transsexual and a man who falsely claims he was quote-unquote "just getting touch with his feminine side." Likewise, our correctional facilities, for both males and females, are accustomed to dealing with gay and transgendered inmates: transgendered men would not automatically get sent to the "Girls Prison" even if we in fact had a Girls Prison.) Bills dealing with human rights typically go to the Judiciary Committee on both sides of the "Wall"— and I might add that geographically the hearings on HB415 are taking place on the House side of the Wall. This is appropriate to the subject matter of this bill. Just as the hearing is taking place on both the House and Senate sides of the Wall, so too are many citizens of our state on both sides of the wall between the male and female sexes. I should be cautious about saying what you will be hearing today at the hearings: what gets said about controversial bills at public hearings is sometimes very different than what gets said elsewhere. I didn't go to the House HB415 hearings (although many of my constituents did go.) But, I did check the written record of the hearings. It appears that few if any witnesses came forward at those hearings to make the arguments against this bill which dominated the later discussion. Shortly before the full house voted on HB415, I checked with the legislative researchers to see if there were any research reports related to the issues which were causing HB415 to be so controversial. No such report existed for the simple reason that no such report had ever been requested. I do expect that the members of the Senate will be hearing a lot of speculation about males quote-unquote "suddenly" deciding to turn into females. I am a straight (but not narrow) male who is happy with his gender assignment and as far as I know I have an XY chromosome. A few years ago I did cross the gender line to play a female character in a community theatre production. It was a relatively easy transition: it was a good play and I didn't even need a wig. By the way, I always used the men's dressing room and the men's bathroom at the theatre. But it still wasn't easy and it was a relief becoming myself and being a man again at the end of the show. For a transgendered person, it's not a play, it's real! It's not easy, it's not sudden and they have to spend many years of their life playing a character of the opposite sex before getting to be who and what they really are. I happen to know a number of transgendered people: I have some idea of how hard— and yet how normal— their lives are. The least we can do for people going through the most difficult transition a human being can go through is to treat them with dignity and to let them use the bathroom when they need to go! This is a very simple human rights bill: it adds the phrase "gender identity or expression" to several RSA's dealing with human rights issues. This doesn't just protect transgendered people from discrimination: it protects everyone, because all of us have a gender identity and a gender expression. This bill, if passed into law, guarantees that gay and transgendered people— or even straight people who have an androgynous appearance— have the same rights as anyone else. Not special rights... just the basic rights everyone else takes for granted. I was disappointed by some of the arguments made in opposition to HB415. Those arguments have been, how should I put this gently, inconsistent with reality. The reality is that gay and transgendered people are no different from the rest of us. The reality is that similar bills have been passed in 13 states and many cities and counties without the dire consequences predicted by the opponents of this bill.
I understand why lobbyists and outside pressure groups called this a bathroom bill: it's a catchy phrase, even though it is untrue and unfair and doesn't make much sense. But members of the Senate, like members of the House of Representatives, are obligated to be truthful and fair. Please vote for truth and fairness: please vote OTP on HB415.
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Sadly, the Senate ended up killing the bill unanimously, 24-0. Even one of the bill's cosponsors voted against it. They were very apologetic afterwards, however.
See Also:
My website, TimothyHorrigan.com