Legal Alert - Discrimination Against Transgender Law Passes New Hampshire

On May 2, 2018, the New Hampshire Senate passed bill HB 1319, which updates the states anti-discrimination laws to prohibit discrimination against the state's transgender residents.  ACSI asked Attorney John L. Cooley of Cooley and Associates PLC to review the law and interpret how this new law impacts ACSI member Christian Schools in New Hampshire. 

I reviewed the amendment to the New Hampshire Law Against Discrimination.   This new law added gender identity to the list of protected classes.  In addition, sexual orientation has been a protected class for some time.     There are two provisions that are of significance for ACSI New Hampshire member Christian schools.  First, the definition of an employer covered under the statute excludes religious organizations or religious educational entities.  The definition section states the following:   

"Employer" does not include any employer with fewer than 6 persons in its employ, an exclusively social club, or a fraternal or religious association or corporation, if such club, association, or corporation is not organized for private profit, as evidenced by declarations filed with the Internal Revenue Service or for those not recognized by the Internal Revenue Service, those organizations recognized by the New Hampshire Secretary of State. Entities claiming to be religious organizations, including religious educational entities, may file a good faith declaration with the human rights commission that the organization is an organization affiliated with, or its operations are in accordance with the doctrine and teaching of a recognized and organized religion to provide evidence of their religious status.                 RSA 354-A:2  

Thus, ACSI member Christian schools in New Hampshire should qualify for the exemption.  As such, the Act would not or does not apply to a member school at all since it is not an "employer" covered under the Act.  As noted in the definition, ACSI member Christian schools may file the good faith declaration with the Commission.  However, it does not appear that there is a requirement to do so.   This appears to be necessary if there is some claim made to provide evidence to the Commission of the religious status.          

Secondly, while not necessary to raise (because religious educational entities are not employers covered under the Act) the Act does provide for the defense of a "bona fide occupational qualification" (BFOQ).   Even if covered, serving as a Christian role model should constitute a bona fide occupational qualification for a Christian school.   This again illustrates the importance of articulating clearly and concisely the religious and biblical support for lifestyle requirements.    

John L. Cooley, Esq.

Law Office of Cooley and Associates PLC

40 British Woods Dr., Suite 101

PO Box 19687

Roanoke, VA 24019

Phone 540-339-3300

Fax 540-523-1745  

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