To The Daily Sun,
We're having the wrong debate about HB-478, the "Transgender bathroom bill."
As a state legislator, it's my job to read and understand what effects bills may have in context of the existing law and culture. What I uncovered changes the entire debate and implications of the controversial "transgender bathroom bill" HB-478.
I've consulted with a number of legal professionals, the House legislative research team, and the NH Commission for Human Rights. What I've learned is surprising. I could not find any statute or law requiring men or women to use their own respective bathrooms. For instance, it's not unusual for a janitor to simply knock before going into the opposite sex's bathroom to clean. No police officers are waiting for them when they come out.
Although there is no law determining who is allowed in which bathroom, most establishments traditionally have policies to restrict each sex to their respective bathrooms. HB-478 seeks to add "gender-identity" to the list of protected classes that cannot be discriminated against.
So does that mean the transgender bill will open the flood gates for non-trans people looking to exploit the new law for their own perverse ends?
My research says no. And not for the reasons one might think.
The statute as it is written already prohibits discrimination based on sex – but our bathrooms are still segregated! After my lengthy discussions with legal professionals, we've narrowed down the current interpretation of the law to two possibilities:
Segregated bathrooms are not discrimination under current law. Having a bathroom available to you, regardless of your preference means you are not being discriminated against. (Separate but equal). Or,
Segregated bathrooms are discrimination under current law, and most establishments public and private are already in violation. Men or women, regardless of how they identify, could use any bathroom they see fit.
Why is this hard to narrow down? I'm told by the office of legislative services that we may need to wait for a Supreme Court ruling to know exactly how the law is interpreted. We do know that history tells us that "separate but equal" has not been a valid defense in civil rights cases.
We do know that the court will have to rule one way or another. In our first interpretation, the wording of HB478 will not grant transgender people the freedom of choice between bathrooms or locker rooms. It grants only the promise of facilities in some configuration, chosen by the property owner. Forward-looking business owners could still allow transgender people to use their bathroom of choice, but would not be compelled to do so.
In our second interpretation, HB-478 will provide no effective change to bathroom and locker room access, as it would indicate the sexual segregation is already discrimination.
Regardless of the derailed nature of the bathroom debate, HB478 does provide important protections, prohibiting discrimination in employment, housing, and public accommodations. I believe we would be remiss to deny these basic civil rights to these people. We already have protections in place based on age, sex, race, creed, color, marital status, familial status, physical or mental disability or national origin. I have seen no valid reason to prevent transgender people from receiving the very same protection, and will be voting yes to the ought-to-pass committee recommendation this week.
State Rep. Robert Fisher
- Category: Letters
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