Representative Michael D. Cahill, a Democrat, had second thoughts after he voted Thursday, along with most Republicans in the New Hampshire House, to pass a bill critics said would constitute a “license to discriminate” against transgender people.
Cahill, who’s from Newmarket, N.H., said he knew HB 396 dealt with single-sex spaces for incarcerated people, but he admits he wasn’t fully up to speed on the bill’s far-reaching implications for other “complicated” and “sensitive” issues.
“I didn’t realize it was also sort of a bathroom bill,” he said. “I think we just have to let people live their lives and not fuss with all this.”
“I’d rather be working on the meat-and-potatoes stuff that affects everybody’s lives than all these culture war things,” he added, “so I decided that I would give us another chance to vote on this bill.”
New Hampshire law prohibits discrimination on the basis of sex or gender identity, but HB 396 would add carve-outs to allow public and private entities to differentiate on the basis of “biological sex” in multi-person bathrooms and locker rooms, athletic events, and detention facilities.
In other words, the bill itself wouldn’t prohibit transgender people from using facilities or competing in sports based on their gender identity, but it would give a green light for organizations across New Hampshire to impose such prohibitions.
Chris Erchull, an attorney with GLBTQ Legal Advocates and Defenders, said enacting HB 396 would offer “a license to discriminate” in a wide variety of contexts, including schools.
With this bill and others, New Hampshire lawmakers are participating in a nationwide trend to advance Republican-backed proposals that seek to curtail the rights of LGBTQ people, particularly those who are transgender. Hundreds of anti-LGBTQ bills were introduced in statehouses across the country last year, and 84 became law, according to data compiled by the American Civil Liberties Union.
Cahill’s change of heart on HB 396 won’t be enough on its own to secure a different result in the 400-member House. The bill passed 192-184, and one of the three Democrats who joined Republicans to approve the measure, Representative Matthew Coker of Meredith, said he’s not changing his position. But the final outcome could hinge on which members attend the next session day and whether any of them are swayed by the backlash to the original vote.
Coker said the Democrats who voted last week in favor of HB 396 and a separate bill that would ban gender-affirming genital surgeries for minors have since endured withering criticism.
“The vitriol I’ve experienced over these votes is at a different level than what I’ve experienced before,” he said, “and I regularly vote against party lines.”
Coker said he understands why there are such strong emotions on this topic, but he thinks it’s good public policy to allow local institutions to decide what works for them.
“It’s not a blanket statewide ban and puts the power to make these decisions in the hands of local leaders,” he said. “This is a tough issue, and I don’t have a perfect answer.”
The third Democrat who voted in favor of HB 396, Representative Michael D. Abbott of Hinsdale, said he would think about his options ahead of the vote on reconsideration.
Republican Representative Joseph Sweeney of Salem, who serves as House majority floor leader, said HB 396 aims to “protect biological females,” and he’ll urge his colleagues to continue supporting the bill.
Wolf said the participation of transgender athletes in sex-segregated sports can pose “a very difficult situation” to grapple with from a policy perspective, but the bulk of HB 396 is unnecessary and won’t make anyone safer.
Bordes said he worries about undermining nondiscrimination protections that Republicans approved just a few years ago.
Governor Chris Sununu, a Republican, signed transgender nondiscrimination protections into law in 2018. A spokesperson for Sununu did not respond to a request for comment on whether he would consider vetoing HB 396, if it’s approved by both the House and the Republican-controlled Senate.
The reconsideration vote on HB 396 could hinge on attendance at the next legislative session day in the House, which will be scheduled at the call of the chair. Cahill will have until noon that day to offer his motion under House rules.
“It’s just going to depend,” Bordes said, “on who shows up and who doesn’t show up.”