For those of you not familiar, the New Hampshire General Court is voting on a transgender rights bill, more commonly referred to in the media as the “Transgender Bathroom Bill,” HB478 [view the bill text here] the week of March 6th (next week at the time of this writing).

Naturally, upon news of this bill hitting the public, the common arguments surfaced right away about how worried parents are about potential perverts entering the “wrong bathroom” and spying on their kids while exploiting the glaring legal loophole that such a policy would create. Followed by the usual accusations of bigotry and intolerance from the opposing side. “Transgender people are not perverts,” is their retort, “they deserve the same rights as anybody else!”

It’s an emotional argument for both sides, and everybody appears to be talking past each other. What’s really going on here?

As a NH State Legislator, it’s my job to read the text of these bills and consider what effects it may have in context of the existing law and culture. During my time of due diligence on this particular bill I discovered some fascinating things about the current law that I wasn’t aware of, and I’m betting most of you weren’t either.

First I’m going to break down the arguments being made. Then I’m going to focus on what’s currently already law. Then I’m going to debunk the transgender bathroom bill debate, because both sides are hallucinating a debate that doesn’t exist.

The bill doesn’t actually reference “transgender” in such words, but it does add the phrase “gender identity” to the long list of protected classes or factors that are considered civil rights for NH. The NH Commission for Human Rights is established by the RSA in question (RSA 354-A). They’re currently tasked with “eliminating discrimination in employment, public accommodations and the sale or rental of housing or commercial property, because of age, sex, sexual orientation, race, creed, color, marital status, familial status, physical or mental disability or national origin.” This bill would task the Commission with providing these very same protections to people regardless of their identified gender (or their gender behavior), “whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”

RSA 354-A is not limited to bathrooms, but instead touches on employment and housing as well. According to my phone call with their staff, a large majority of their complaints are employment and housing related. More on this in a bit.

The Opposition

I’ve heard a couple different complaints from opponents regarding the bathroom related parts of this bill. For brevity’s sake, I will refer to these arguments using male examples, but the complaints can be reversed for women just the same.

  1. Men who falsely identify as women could enter the women’s bathroom and watch or spy on other bathroom patrons.
  2. Men who identify as women could enter the women’s bathroom and children or women could be incidentally or purposefully exposed to male genitalia.

While either scenario seems utterly unlikely to happen on any regular basis, it is important to note that you don’t want to legislate something based on how often it happens, but rather whether or not it should happen at all.

Opposing the Opposition

We can dismiss the first argument of spying right off the bat, because we already do have voyeur laws and they cover not only opposite-sex scenarios, but also same-sex scenarios any bathrooms or places with an expectation of privacy. Since perverts can be straight or gay, it’s a good thing our protections against voyeurism are not restricted to just one of these scenarios. This law would not legalize voyeurism.

One could make an argument that it would make voyeurism easier to get away with since there would be a presumed legitimate reason to be in a differently-sexed bathroom to begin with. This might be a worthwhile argument to consider better stall privacy, but it certainly isn’t insurmountable. Just because people can get away with breaking a law doesn’t mean the law doesn’t exist.

The second issue seems to be harder to dismiss. Even a well-meaning transgender person might accidentally show off a little more than intended while using the gym locker room. I know that at my gym, men often use the showers wearing nothing at all.

It’s possible to apply common sense to this argument. Children and teens often use the locker rooms at public gyms. Even if they’re not being exposed to the opposite sex, they may be exposed to the same sex. If a boy of 12 sees a grown man’s penis, is it more harmful to him than if a 12 year old girl sees one?

This would be the never-ending debate of tradition verses progress. And it may not be settled here today in this essay, but we will soon see that this doesn’t matter. This entire argument is also invalid for the HB478 debate. None of this is relevant.

The Law

I’ve consulted a number of legal professionals, the NH House legislative research team, the NH commission for human rights, and other House members. What I’ve learned will probably surprise you.

As it turns out, in NH there is no state law requiring men or women to use their own respective bathrooms. A man in the women’s room (or vice versa) has not specifically broken any laws. I’m sure you’ve noticed when a janitor to go into the opposite sex’s bathroom, he/she simply knocks to make sure nobody’s in there. No cops are waiting for them when they come out. This may not be what surprises you, but keep reading.

This bill never actually explicitly attempts to legalize (or decriminalize) who can enter what bathroom. HB478 is a discrimination bill. It attempts to make it illegal “to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges” of “any place of public accommodation.” Directly, or indirectly.

So what’s the issue?

The issue lies in the definition of discrimination.

Separate But Equal

You might be familiar with the Civil Rights Act of 1964. One of the major effects of this act was overturning almost 70 years of state-sponsored separate-but-equal policy. It’s the reason we don’t see “whites only” drinking fountains and “colored only” schools.

Fascinatingly, both the civil rights act, as well as NH’s statute list sex as one of the protected classes, right next to race. But in NH (as well as most of the nation) we’ve got segregated bathrooms.

I got in contact with the NH Commission of Human Rights to see if we could unwind this confusion. Unfortunately, that’s not the case.

I was only able to get opinion from them because much of this portion of the statute actually hasn’t been challenged in court. The working theory we worked out was this:

If you provide bathrooms for all classes, it is not considered discrimination. So long as you do not restrict one of the sexes from entering, you did not commit sexual discrimination. If the owner of the establishment wants to remove you from their property because you entered the wrong bathroom, it was not sexual discrimination because you did have access to a bathroom, you chose not to use it properly.

But here’s where it gets murky. If I put signs outside my bathrooms saying “Whites Only” and “Colored Only” I would surely lose a discrimination suit! Separate but equal has long been considered the incorrect way to rule on civil rights cases.

So what’s actually going on?

Knowing that there is no state law requiring men to stay in men’s bathrooms

Since sex is considered a protected class in the statutes, there are two possible interpretations for this statute:

  1. Separate by sex but equal bathrooms are not discrimination. Having a bathroom available to you, regardless of your preference (straight, gay, trans) means you are not being discriminated against. Business owners are allowed to segregate access by sexes if they would like but there is no risk of discrimination as long as every group has access to a bathroom. (For example, if the women’s bathroom breaks, men and women take turns using the same bathroom while the other is being fixed is not discrimination.)
  2. Separate by sex but equal bathrooms are discrimination, and most establishments public and private are already in violation. Transgender people already can use the bathroom they desire, as restricting access on biological components is already illegal.

What would be to happen if we passed HB478 in these two scenarios?

  1. If separate by sex but equal bathrooms is not discrimination, then adding transgender to this list would mean the same rules apply. The only way to discriminate against a transgender person is to prevent them from bathroom access because they are transgender. A simple solution for private owners would be to be clear which bathroom is for which: “Biological Male” and “Biological Female.” Because this covers both sexes, there is no sexual discrimination. Because it does not restrict access for transgender people, no discrimination takes place. Access is the bare minimum requirement in this interpretation. Nothing would change for transgender people’s rights, they can use a bathroom, just not the one they prefer.
    • This interpretation would mean that “colored only” bathrooms would need to be equally legal.
  2. If separate but equal is discrimination, then transgender people can already use either bathroom, nothing would change, except bathroom signs would be unconstitutional.

Unfortunately, even if the text itself irons out to reasonable/unreasonable conclusions, we may not have a real answer until it makes its way up to the Supreme Court. What we can safely say is that sex, race, and many other factors are included in the very same paragraphs. If we are to narrow our interpretation to only one, we will be required to interpret it this very same way for ALL classes of people. This pushes me to lean towards interpretation number 2 being the correct interpretation: NH is already a transgender friendly bathroom state.

There are some interesting debates about exactly what the rest of this bill would do for business owners, the public, and transgender citizens. The reality is that this could bring protections and equality in many other places: the workplace, public places, housing, etc.

The fact that the debate is taking place about bathrooms is exactly what’s wrong: Both sides are hallucinating an argument that isn’t taking place.