CONCORD, N.H. — Given a chance to rethink their prior approval of a so-called “bathroom bill,” a majority of lawmakers in the New Hampshire House opted Thursday not to take another vote, despite critics saying the bill would authorize anti-LGBTQ discrimination.
While the proposal, House Bill 396, wouldn’t prohibit transgender people from using restroom facilities or competing in sports based on their gender identity, it would give a green light for schools and other organizations across New Hampshire to impose such prohibitions.
The House passed the bill with a 192-184 vote on Jan. 4, but then one of the three Democrats who voted with the majority, Representative Michael D. Cahill of Newmarket, said he had a change of heart and moved for reconsideration.
Cahill asked his fellow lawmakers Thursday to authorize a revote. He said the bill involves many complex issues that most state representatives have little or no experience with, so there may be others who have since looked further into the bill’s implications and changed their minds.
Republican Representative Robert J. Lynn of Windham countered that nothing had changed since the House passed the bill earlier this month. He said the bill was thoroughly considered by both proponents and opponents.
With a 187-190 vote, the House rejected Cahill’s motion for reconsideration, allowing their prior approval of HB 396 to stand. The decision means the measure now heads to the Senate, where Republicans hold a more comfortable 14-10 majority.
If enacted, HB 396 would allow public and private entities across New Hampshire to differentiate on the basis of “biological sex” in multi-person bathrooms and locker rooms, athletic events, and detention facilities. It would add a carve-out to the state’s nondiscrimination law, which was amended in 2018 and 2019 to prohibit discrimination on the basis of gender identity, including in public schools.
Although this bill would not require sex-based separation in these settings, lawmakers are considering three others that would require such separation in school sports. All three proposals — House Bill 1205, Senate Bill 375, and Senate Bill 524 — would require schools to designate each sports team as being open to either males, females, or both sexes, and all three would prohibit transgender women and girls from participating in female-designated sports.
But the three proposals differ in other key respects:
- Two of the bills (HB 1205 and SB 375) would allow any student to compete in coed or male-designed sports. The third (SB 524) says student athletes “may only participate in a team, sport, or athletic event designated for the athlete’s biological sex.”
- While one bill (SB 375) would apply to public schools and private schools with teams that compete with public schools, the other two (HB 1205 and SB 524) specify that their rules would apply not only to K-12 schools but also to institutions of higher education, including intramural and club sports teams.
- Two bills (HB 1205 and SB 525) would classify a student’s sex based on what their birth certificate said when or shortly after they were born. The other (SB 375) would classify sex based on “nonambiguous sex organs, chromosomes, and endogenous hormone profile at birth.”
- One bill (SB 375) would also bar transgender women and girls from female-designated locker rooms and restrooms, which could be interpreted as applying to school bathrooms broadly.
- And another (SB 524) would create a cause of action, so athletes could sue their school for violating these rules.
Critics panned HB 1205 and SB 375 during committee hearings this week, and a public hearing on SB 524 is slated for Feb. 6.
Jonah Sutton-Morse of Canterbury, who competed as a swimmer in high school, testified against SB 375 during a Senate committee hearing Tuesday.
“Athletics aren’t about who wins, and they’re not a ticket to a scholarship that somebody owes you,” Sutton-Morse said. “They’re a chance for us to learn lessons about hard work, and sportsmanship, and teamwork, and all of the corny stuff that coaches give speeches about and we roll our eyes at and then 20 years later we give the same speeches to our kids, because in fact that is what sports are about.”
Sutton-Morse urged lawmakers to reject the bill to preserve school sports as an inclusive learning opportunity for student athletes.
“A bill that feels the need to reference the genitals of high schoolers maybe needs a little more thought and consideration,” he added.
The lawmakers pushing for these legislative changes, who are predominately Republicans, said they aim to protect women, girls, and the fairness of competition in sex-separated athletic competitions.
Republican Senator Kevin A. Avard of Nashua said he’s sponsoring SB 375 in response to widespread concerns.
“This just sets parameters, so it leaves out confusion, and we can all work in harmony here when it comes to the sports in our schools,” he said.
The legislative debate in New Hampshire comes amid a nationwide trend to advance proposals to curtail the rights of LGBTQ people, particularly those who are transgender. When state representatives first voted in favor of HB 396, they also approved a separate bill to ban gender-affirming genital surgeries for minors.
Steven Porter can be reached at steven.porter@globe.com. Follow him @reporterporter.