Pared-down N.H. bill would ban gender-affirming genital surgeries for minors

Just like the original bill, a proposed amendment represents a “dangerous” approach to regulating health care, opponents say

The New Hampshire State House in Concord on June 1, 2023.Craig F. Walker/Globe Staff

Republican lawmakers in New Hampshire are sponsoring a legislative amendment they hope will soften an anti-LGBTQ bill just enough to secure its passage and impose an outright ban on gender-affirming genital surgeries for minors in the state.

The original legislation, formally known as the “Protection Against Child Medical and Psychological Experimentation Act,” was more than 4,000 words long. With a newly proposed amendment, which came up for a public hearing Tuesday, the bill would clock in at less than 1,500 words.

Both versions would prohibit doctors from performing transition-related genital surgeries on minors or even referring patients to another provider for such services. But the amendment would omit language related to non-genital surgeries, such as mastectomies, and it would do away with provisions that had sought to prohibit puberty blockers and cross-sex hormones for minors as well. It would also nix a lengthy section that had sought to regulate discussions of sex and gender in public schools.

The amendment’s lead sponsor, Republican Representative Erica Layon of Derry, began her testimony on Tuesday with a message she directed to members of the transgender community younger than 18.

“We do not seek to invalidate your experience,” Layon said. “This effort is to prioritize your lifelong health and wellbeing by pumping the brakes on the rapid adoption of this medical care for your age group.”

But the bill and the amendment were panned by witnesses from a wide range of advocacy groups, including the New Hampshire Medical Society, New Hampshire Hospital Association, the New Hampshire Psychological Association, the National Alliance on Mental Illness in New Hampshire, the local chapter of the National Association of Social Workers, and others who warned about the potential harms to an already vulnerable group.

Courtney Tanner, senior director of government relations for Dartmouth Health, said physicians affiliated with the academic medical center provide gender-affirming care to adult and pediatric patients alike. Their general rule at Dartmouth Health is to avoid transition-related genital surgeries for minors, but there are certain rare situations in which such a procedure could be deemed medically necessary, so state lawmakers should not inject themselves into such sensitive and complex medical decision-making, she said.

“It’s really dangerous to legislate medicine in this way,” Tanner said.

Nationwide, an estimated 405 transition-related genital surgeries were performed between 2016 and 2020 on patients between the ages of 12 and 18, according to a cohort study in JAMA Network Open.

Chris Erchull, an attorney with Boston-based GLBTQ Legal Advocates & Defenders (GLAD), said most of the patients in that category were 18 at the time of their surgery, and almost none of them were from New Hampshire.

“We are talking about a very, very small number of surgeries, and the only place I know anywhere near here is Boston Children’s Hospital where a surgery like that has ever taken place,” Erchull said, “and it is very rare even there.”

Erchull objected also to provisions of the amendment that would modify the state’s existing ban on conversion therapy. While Layon said the amendment would use more inclusive language to clarify what the conversion therapy ban means in the context of caring for individuals with gender dysphoria, Erchull and others contended the existing language is sufficiently clear as-is.

“I’m concerned,” he said, “that a lot of the points in the conversion therapy amendments reflect a fundamental misunderstanding of gender identity.”

James Bomersbach, Ph.D., a forensic psychologist who spoke on behalf of the New Hampshire Psychological Association, said it doesn’t make sense to conflate gender-affirming care with conversion therapy, which seeks to change a person’s sexual orientation or gender identity.

“There is no legitimate purpose for conversion therapy. There is no scientific evidence that it could work,” Bomersbach said. “That is not the case for gender-affirming care or any of the things that may be falling under that umbrella.”

When asked by a colleague to clarify why state lawmakers who support parental rights should vote for a bill that would effectively override parents’ right to direct medical care for their transgender children, Layon said parental rights come with certain limits. In the same way that New Hampshire regulates tanning salons and illegal drugs without regard for a parent’s wishes, the state can regulate transition-related genital surgeries for minors, she said.

“A parent can’t authorize their child to go use heroin,” Layon said.

Eleanor McDonough, a transgender woman from Exeter, said tanning booths and heroin are inapt comparisons for gender-affirming care because neither constitutes medical treatment that’s endorsed by major medical associations and directly overseen by licensed medical professionals.

“When legislating against personal medical rights, any infringement is not only dangerous, it’s a slippery slope,” McDonough said. “It is not the role of government to decide if care which is widely acknowledged as the best treatment for gender dysphoria is medically necessary.”

McDonough said state lawmakers nationwide should quit with their “performative attacks” on gender non-conforming people and focus on the problems that matter to Granite Staters, like housing, quality jobs, and the environment.

At least 19 states have enacted laws restricting gender-affirming health care, though the details differ from state to state and some laws are caught up in litigation.

Layon wasn’t alone in her support for the amendment at Tuesday’s hearing before the House Health, Human Services, and Elderly Affairs committee. Two cosponsors, Republican representatives Leah Cushman of Weare and Lisa Mazur of Goffstown, who serve with Layon on committee, asked probing questions that signaled their skepticism of those who oppose the bill and the amendment. Representative Alicia D. Lekas, a Republican from Hudson, and a couple of community members spoke in favor of the amendment as well.

The committee, which decided in March to retain the original version of House Bill 619, will have the option to recommend that the full House pass or kill the bill with or without the amendment.