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LGBT Issues

Discrimination

New Hampshire Anti-Discrimination Law

Does New Hampshire have an anti-discrimination law protecting gay, lesbian, and bisexual individuals from discrimination?

 Yes.  On Jan. 1, 1998, New Hampshire’s law banning sexual orientation discrimination in employment, public accommodations and housing came into effect.   It only took three years to pass in the Legislature and had the support of the Roman Catholic Church.  See Norma Love, “Senate Passes Gay Civil Rights; Shaheen to Sign it,” Foster’s Daily Democrat, May 7, 1997.

Does it also protect people perceived of as gay, lesbian, and bisexual?

 Yes, the law explicitly protects people perceived to be gay.  The non-discrimination law defines “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality.”  NH RSA 354-A:2, XIV-a.  While the courts have not ruled on the meaning of the “perceived” language, it should mean, for example, that a person who is fired even while they are closeted, or because they are perceived to be gay (whether they are or not), may still invoke the protection of the anti-discrimination law to challenge the firing.

Does it also protect people associated with gay, lesbian, and bisexual individuals?

Not specifically.  But in some situations, if a person is fired from a job or evicted from their home because they hang out with someone who is gay or lesbian, it may be possible to show that they were fired or evicted because the employer or landlord thought they, too, were gay or lesbian or perceived them to be so.
 

Employment Discrimination on the Basis of Sexual Orientation

What does the law forbid?  To whom does the law apply?

The non-discrimination law applies to employers (government based or private) who have at least 6 employees.  It forbids employers from refusing to hire a person, or discharging them, or discriminating against them “in compensation, or in terms, conditions or privileges of employment” because of sexual orientation.  NH RSA 354-A:7, I.  This covers most significant job actions, such as hiring, firing, failure to promote, demotion, excessive discipline, harassment and different treatment of the employee and similarly-situated co-workers.

The law also applies to labor organizations (e.g. unions) and employment agencies.  NH RSA 354-A:7, II, III.

The equal employment opportunity program of the State Division of Personnel must ensure that the State employs qualified people regardless of sexual orientation.  NH RSA 21-I:42, XVI.  Moreover, the State is forbidden from discriminating in the classified service with respect to sexual orientation.  NH RSA 21-I:52, I.

As broad as the law is, there are several exemptions:

a) The law does not apply to an employer with fewer than 6 employees.  An employer’s spouse, parent, or child do not count as employees. NH RSA 354-A:2, VI, VII.

b) The law is not applicable to an employer which is a non-profit religious or educational or charitable association or corporation, NH RSA 354-A:2, VII;

c) There are no general occupational exemptions from the reach of the non-discrimination law.  But an employer, agency or labor organization may defend against a discrimination claim by arguing that a “bona fide occupational qualification” of the particular job is that it have someone in it who is non-gay.  NH RSA 354-A:7, I, II, III.  While that defense is allowed in the law, it is strictly applied and very rarely successful.  See, e.g., Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 447 N.E.2d 1228 (1983).

Does New Hampshire law forbid sexual harassment?

 Yes, sexual harassment is expressly prohibited by state law. The law states:

“Unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal or physical conduct of a sexual nature constitutes sexual harassment when:
 

a) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
b) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
c) Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, or offensive working environment.”  NH RSA  354-A:7, V.

Can a gay person be sexually harassed?

It is as unlawful to sexually harass a gay, lesbian or bisexual person as it is to harass a non-gay person.  Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation.  Other harassment is sexual in nature and more appropriately categorized as “sexual harassment.”  Both types of harassment can happen to the same person, and both are forbidden.

 The United States Supreme Court and other federal courts have found same-sex sexual harassment to violate sexual harassment laws.  Compare Oncale v. Sundowner Offshore Services, 523 U.S. 75, 118 S.Ct. 998 (1998)(man can sue for sexual harassment by other men under federal sexual harassment laws); Drew v. First Sav. of N.H., 968 F. Supp. 762 (D.N.H. 1997) (acknowledging claim under federal law which failed on the facts presented); King v. Town of Hanover, 959 F.Supp. 62 (D.N.H.  1996) (acknowledging claim under federal law).  Several state courts have reached the same result under their state non-discrimination laws.  Melnychenko v. 84 Lumber Co., 424 Mass. 285, 676 N.E.2d 45 (1997).

Housing Discrimination on the Basis of Sexual Orientation

What is prohibited by the housing anti-discrimination law in New Hampshire?

a) misrepresenting the unavailability of a place when it is in fact available, A:10, IV;
b) applying different terms or conditions based on sexual orientation, A:10, II;
c) printing or circulating discriminatory notices or advertisements, A:10, III;
d) evicting a tenant solely on the ground that he or she has AIDS or is regarded as having AIDS, A:10, VI; and
e) making mortgage and real estate loans on a discriminatory basis, A:10, VII, i.e. a form of credit protection.

a) A person who owns only one single family house may discriminate if they sell or rent the house without using the sales or services of any broker (or like person) and without circulating any discriminatory ads or notices.  NH RSA 354-A:13, I-a.
b) An  owner who lives in 3-family, 2-family or 1-family unit is exempt from the law with respect to the rental of the other units.  NH RSA A:13, I-b.
c) An owner may discriminate in the rental of rooms as long as they rent not more than 5 rooms and themselves live in the dwelling. NH RSA A:13, I-c.
d) Religious organizations and organizations supervised by religious organizations which do not rent or sell for commercial (i.e., profit) purposes, may give preference to persons of their same religion (with some exceptions).  NH RSA A:13, II.
e) Private clubs which provide lodging for their members and not for profit may limit its rentals to such members, or give preference to its members. NH RSA A:13, III.

Public Accomodations Discrimination on the Basis of Sexual Orientation

What is a “place of public accommodation”?

A place that caters or offers its services or facilities or goods to the general public is a place of public accommodation subject to the non-discrimination laws.  NH RSA 354-A:3, XIV.   Many types of places can be public accommodations, ranging from a motel, restaurant, rest area, highway or hospital.
 

What does the law say about discrimination in places of public accommodation?

Discrimination in Credit and Services on the Basis of Sexual Orientation

What protections exist under New Hampshire anti-discrimination law with regard to credit?

There are no specific credit protections other than those related to mortgage and real estate loans discussed above.

How does New Hampshire anti-discrimination law protect people receiving services?

The patient’s bill of rights now includes the right to receive appropriate care without regard to “sexual orientation.”  NH RSA 151:21, XVI. The same protections apply to home health care providers.  NH RSA 151:21-b, II-b.

Transgender / Gender Identity Discrimination

What protections exist for transgendered people under the discrimination laws?

 There is no explicit protection in the law for transsexual or transgendered persons in New Hampshire.  However, even absent explicit protection, in some cases, an individual’s gender identity may be regarded as “a gay issue” by a person or entity which is discriminating and therefore allow a person to bring a sexual orientation claim.

 In addition, in some cases a transsexual person or transgendered person may have a claim of sex discrimination if he or she is adversely treated at work, or in housing, or in a place of public accommodation, or in a credit transaction.   If the adverse action is triggered by the sense that the individual does not meet the expectations of or act like a “real man” or “real woman,” then this can be the basis for a sex stereotyping claim.  See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989);  Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000).   For more information, see GLAD’s Memorandum on Transgender Discrimination Issues.

Complaint Process

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Yes.  The state non-discrimination laws for employment forbid taking an action against someone because of sexual orientation as well as because of age, sex, race, color, marital status, physical or mental disability, religious creed or national origin.  NH RSA 354-A:7 (Note, the housing non-discrimination laws also protect people based on their “familial status.”)

How do I file a complaint of discrimination?

You may a complaint with the New Hampshire Commission on Human Rights (“CHR,” or “Commission”), 2 Chennel Drive, Concord, NH  03301.  Information is available from  (603) 271-2767.  The complaint must be under oath, state the name and address of the individual making the complaint as well as the name and address of the entity he or she is complaining against (called the “respondent”).  The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.  NH RSA 354-A:21.

Do I need a lawyer?

You do not need a lawyer at the CHR because the process is designed to allow people to represent themselves.  However, GLAD strongly encourages people to find lawyers to represent them throughout the legal process, whether at the CHR or otherwise.  Not only are there many legal rules governing the CHR process, but employers and other defendants are likely to have legal representation.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the CHR within 180 days of the discriminatory act or acts.  NH RSA 354-A:21, III.  There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.  The Attorney General can also file claims of discrimination.

What happens after a complaint is filed with the CHR?

 The CHR assigns an investigator to look into your case, who may as part of the investigation send out written questions (interrogatories) to be answered under oath or  request documents from the parties.  If the case is not dismissed for technical reasons, a Commissioner will decide if there is probable cause to credit your allegations.

 If probable cause is found in an employment, credit, services, or public accommodations case, the case will be sent for “conciliation” or settlement proceedings.  If  negotiations fail to produce a settlement agreeable to all parties, the case proceeds further and the respondent will be asked to answer the complaint.  After more  discovery by the parties of each other’s positions, the Commission can hold a trial type hearing before 3 Commissioners.  At that hearing, a person can be represented by a lawyer for the Commission or a private attorney.  See generally NH RSA 354-A:21.   A losing party can appeal to the Superior Court, and a winning party can file a case in Superior Court requesting enforcement of any CHR orders.

 If the Commission does not find probable cause, a complainant may appeal to the Superior Court and must then show that the Commission’s decision is unlawful or unreasonable by a clear preponderance of the evidence.  NH RSA 354-A:21, II-a.

What are the legal remedies the NHCHR may award for discrimination if an individual wins his or her case there?

 Whether a case involves employment, housing or public accommodations, the Commission may order the respondent to cease and desist from the unlawful conduct.  The CHR may also order a respondent to do something affirmatively, such as hire, reinstate or upgrade an employee, restore a person to a labor organization, or extend a person the full advantages of a place of public accommodation.  Employees may receive back pay, and all victims of discrimination are eligible for compensatory damages, including emotional distress damages.  Finally, the Commission may impose an administrative fine (payable to the State), of up to $50,000 depending on how many past offenses the respondent has committed. NH RSA 354-A:21, II-d.

 Note that if a person’s complaint is dismissed, and deemed frivolous, a respondent may seek to collect its reasonable costs and attorney’s fees from the complainant. NH RSA 354-A:21 II-f.

Are there other agencies at which I can file a complaint for discrimination?

 You may have other places to turn, but it depends on the facts of your particular situation.  This outline concerns only New Hampshire non-discrimination law, and you may well have other rights.

a) Union:  If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions.  In fact, if you obtain relief under your contract, you may decide not to pursue other remedies.  Get and read a copy of your contract and contact a union steward about filing a complaint.  Deadlines in contracts are strict.  Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.

b) Federal Agencies:  Sometimes an action states a claim for a violation of federal law in addition to state law.  For example,  federal law forbids discrimination based on race, sex, age, religion and disability, but not on the basis of sexual orientation.  Thus, a gay person with HIV who is fired from a job can file with the CHR (for sexual orientation and disability discrimination) as well as the Equal Employment Opportunity Commission (for disability discrimination).  Federal non-discrimination laws apply only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act.  (People who work for federal agencies are beyond the scope of this publication.).

c) State or Federal Court:  After filing with the EEOC, as discussed above, a person may decide to remove his or her discrimination case from those agencies and file the case in court. There are rules about when and how this must be done.  When claims of discrimination based on state law are removed from the CHR and filed in state superior court, either party may request a jury trial and the court may order the same relief as would the CHR.   NH RSA 354-A:21-a.

 For cases alleging violation of state non-discrimination laws, once a person has completed the CHR process, a party may file a new case in court to review the CHR decision or to seek enforcement of a CHR order.  NH RSA 354-A:22, I.

 In addition, a person may file a court case to address other claims which are not appropriately handled by discrimination agencies.  For example, if a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court.    If a person has a claim for a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me or my landlord evicts me for filing a complaint of discrimination?

 It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer for retaliation.  “Retaliation” protections cover those who oppose unlawful conduct, or who have filed a complaint, testified, or assisted in ay proceeding.   NH RSA 354-A:19.  See also Provencher v. CVS Pharmacy, 145 F.3d 5 (1st Cir. 1998) (upholding federal retaliation claim of gay man).

What can I do to prepare myself before filing a complaint of discrimination?

 As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences.  Of course, even if  a person has been fired, or evicted, he or she may decide it is not worth it to pursue a discrimination claim.  This is an individual choice which should be made after gathering the information and advice to make an informed choice.

 Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case.  It is always helpful if you bring to the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them).  It is also helpful to have a list of witnesses and other possible victims of discrimination.  Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like.  If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Marriage and Civil Unions

Can same-sex couples marry in New Hampshire?

Can same-sex couples obtain any legal recognition of their relationships in New Hampshire?

Yes, although at present that recognition is not as complete as the recognition afforded to civilly married couples.  Adult same-sex couples can enter into “civil unions” in Vermont which will give them a legal status, but it is not yet clear what effect those civil unions will be accorded in New Hampshire.

Same-sex couples can also create a variety of legal documents to protect them in specific ways even if they are not married or joined in civil union.

Legal Protections for Couples

What steps can a couple take to safeguard their legal relationship in New Hampshire?

a) Relationship Agreement or Contract:  Agreements regarding property and finances should be respected and honored according to ordinary rules of contract law, but it is important to note that the New Hampshire Supreme Court has not yet ruled on the subject.  A number of other states have found such agreements enforceable, including Massachusetts.  See  Wilcox v. Trautz, 427 Mass. 316 (1998).

b) Durable Power of Attorney:   Any competent person may appoint another person as his or her “attorney-in-fact” for financial and/or matters in the event the one becomes incapacitated or disabled.   NH RSA 506:6.  If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual.  A power of attorney must be signed and notarized.

c) Durable Power of Attorney for Health Care:  Since medical care providers look to next-of-kin to make health care decisions for an incapacitated individual, an unmarried person must create a durable power of attorney for health care if they wish a  person other than immediate family to make those medical decisions.  Under NH RSA 137-J, a person may appoint a health care “agent” to make those decisions for him or her upon incompetence, i.e., when the person no longer able to do so . NH RSA 137-J:2, III.  People should give a copy of the durable power of attorney for health care to their doctors and should also consider giving it to family members.

  Within this document, a person can also deal with end of life issues.  New Hampshire law permits a person to make advance decisions about artificial nutrition and hydration as well as life sustaining treatments without which the person would die.  See NH RSA 137-J:3, III.

  The durable power of attorney for health care must be signed by the person giving the power of attorney and two witnesses (not including the agent, the person’s spouse or heir, a beneficiary under the person’s will or trust, or more than 1 employee of the person’s health care provider). NH RSA 137-J:5.  It cannot be revoked except by the person who gave the power of attorney.  NH RSA 137-J:6.  If a guardian is later appointed for a person, the Court presumes the power of attorney for health care remains in the best interests of the person who gave it unless there is clear and convincing evidence to the contrary.  NH RSA 137-J:12.

  Alternatively, a person can write a “terminal care document” that addresses these subjects.  NH RSA 137-H.  The document should also be made part of a person’s medical record.  It can be revoked if destroyed, orally renounced before two disinterested witnesses, or in writing. NH RSA 137-H:7.

d) Will:  Without a will, a deceased unmarried person’s property passes to:  (1) his or her children;  (2) his or her family; (3) if next-of-kin cannot be located, to the state.  If the person wishes to provide for others, such as his or her partner, a will is essential.  Even if a person has few possessions, he or she can name in the will who will administer his or her estate.  If a person has children, he or she can nominate the future guardian of the child if a will.

e) Funeral Planning Documents:  Upon death, a person’s body is given to his or her next-of-kin.  This can mean that a person’s own partner has no right to remove the body or make plans for a final resting place. To avoid confusion and persuade relatives to honor the deceased’s wishes, a person can leave explicit written directions giving another person (such as their partner or a friend) control over the funeral and burial arrangements.  While this document does not have to be respected, it should help avoid complications in any but the most adversarial families.   Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters as well as to family members.

f) Guardianship:  New Hampshire’s broad guardianship laws allow, among other things, an individual to nominate another person as the guardian of their person, estate, or both.  NH RSA 464-A:10.  The advantage of nominating a guardian in advance is that you are selecting the person to take over all aspects of your financial matters.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.   Although some forms are available, the form may not be suited to your individual needs and wishes.  Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or drafting a health care proxy with specific instructions from you about health care.

What protection will my partner and I gain if we go to Vermont to get a “civil union”?

We hope civil unions will provide many protections, but how other states are just beginning to decide how to treat the civil unions of their residents.  GLAD thinks the legal status of civil unions should be respected in New Hampshire, but that it will take time for that state of affairs to evolve.  A civil union is intended to be parallel to civil marriage in all respects under state law.  So we think civil unions should be treated like marriages for all state law purposes.  See GLAD’s publication, “A Historic Victory:  Civil Unions in Vermont.  Now What?” and stay tuned to the GLAD website for further publications and developments.

If a couple separates, what is the legal status of these documents?

 Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.  Absent an agreement, couples can get involved in costly and protracted litigation about property and financial matters but without the divorce system to help them sort through it.

 If a person has changed his or her mind about who should be his or her attorney-in-fact under a durable power of attorney, or health care agent, or beneficiary or executor under a will, or funeral planner, then those documents should be revoked -- with notice to all persons who were given copies of those documents.  New documents should be prepared which reflect the person’s present wishes.

Domestic Partnership

What is domestic partnership?

 Although it is a term used in many contexts, it most often means a status which recognizes an unmarried couple and their children as a family for certain limited purposes.  In the workplace context, domestic partnership plans allow an employee to obtain certain fringe benefits for his or her partner which benefits  were previously limited to married spouses.  Some states, cities and towns have also enacted domestic partner laws.  In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.”  Some people call cohabitation agreements “domestic partner agreements.”  See GLAD publications on Domestic partnership for further information.

Does New Hampshire provide domestic partner benefits to state employees?

 For most employees no, but the University of New Hampshire system provides domestic partner benefits, including health insurance, to the same-sex domestic partners of eligible employees.

Can cities and towns in New Hampshire provide domestic partner health  insurance benefits to their own employees?

 This is an open question.  So far, no cities or towns in New Hampshire have provided domestic partner benefits.

What kinds of domestic partner benefits may private employers provide?

 Private employers can provide to domestic partners any benefits they wish -- whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities.

 Even when employers provide these benefits, though, sometimes federal laws require different tax or other treatment of the benefits for domestic partners as compared to spouses.  For example, an employee must pay income tax on the value of his or her partner’s health insurance benefits, but a spouse does not.  See Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996). And for pensions,  a domestic partner has the no right to sign off if their partner decides to name someone other than them as the beneficiary of a pension although a spouse would have that right.  In addition, an employee can change his or her beneficiary designation without the domestic partner’s consent or knowledge.

Can I use the state non-discrimination law to force my employer to provide domestic partnership benefits?

 That is an open question.  On the one hand, the non-discrimination law says that an employer can’t discriminate on the basis of sexual orientation in terms of compensation, and employee benefits are a form of compensation.  But on the other hand, lawsuits in other states have largely failed with these types of claims on the grounds that all unmarried people -- gay and non-gay alike -- are barred from benefits, so there is no sexual orientation discrimination.  Not only is the reasoning an employer may provide domestic partner benefits, but cannot be forced to do so through the state non-discrimination law.

Adoption

Can a single gay individual adopt a child in New Hampshire?

 Yes.  Although New Hampshire had a ban on gay people adopting or foster parenting children for many years, those laws were repealed in 1998.  NH RSA 170-B:4 (permitting an “unmarried adult” to adopt).

Can same-sex partners together adopt a child in New Hampshire?

 The law provides that a married couple or single individual (including a foster parent, unmarried mother or father, or unmarried adult) may adopt.  In 1987, the New Hampshire Supreme Court rejected the adoption joint petition of an unmarried heterosexual couple.  In Re Jason C., 129 N.H. 762, 533 A.2d 32 (1987).

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

 These are tricky cases, but the New Hampshire courts have recognized they have the power to grant visitation rights to a person who is not an immediate family member if it is in the best interests of the child.  Roberts v. Ward, 126 N.H. 388, 392, 492 A.2d 478, 481 (1985).  This logic has been applied to allow separating lesbian co-parents to have their visitation disputes heard in court.  See e.g. P.B. v. P.D.R., Merrimack (N.H.) Super. Ct., No. 94-M-615, Order (Sept. 21, 1994)(permitting visitation for non-biological lesbian mother over biological mother’s objection); Comeau v. Grondin, Stafford (N.H.) Super. Ct., No. 94-M-1161, Order on Defendant’s Motion to Dismiss (Apr. 11, 1995) (allowing lesbian co-parent into court to make visitation claim).

 Given recent developments in this area of law at the United States Supreme Court level, a court cannot allow visitation simply because it thinks visitation is in the child’s best interests:  the court will need to ascertain whether there are special factors which justify the court overriding a fit parent’s choice to refuse contact.  Troxel v. Granville, 120 S.Ct. 2054 (2000)(plurality).

 Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels.  Separating a child from a person who has acted as their parent can be a devastating loss for a child.  Moreover, court proceedings to establish defacto parenthood will be painful and costly, so anything people can to outside of court to make decisions together about a child’s interests is strongly encouraged.  See GLAD’s publication:  “Protecting Families:  Standards for Child Custody in Same-Sex Relationships.”

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

 There are a number of steps which can be taken, although none offer the security of a second parent adoption.

 1. Co-parenting agreement:  An agreement setting out the parents’ expectations about each other’s roles, and their plans in the event of separation, disability or death.  While these agreements may not be given effect by courts, they are important indicators of what the couple believed was in the best interests of the child, and thus may be influential (although not binding) on a court.

  Note also that New Hampshire has a specific law about surrogacy.  It prohibits payment of a fee to surrogates, other than expenses like lost earnings or medical expenses due to pregnancy and attorney’s fees and court costs.  NH RSA 168-B:25, V.  It also imposes mandatory contract terms on surrogacy agreements, and makes it clear that the surrogate may keep the child in certain specified circumstances.  See NH RSA 168-B:25, I-IV.

 2. Co-guardianship:  This process allows a parent to name the other non-legal parent as a co-guardian so that he or she may secure medical attention and health insurance for the child and in all other ways act with the legal authority of a parent.  See NH RSA 463:10 (allowing appointment of appropriate persons, including “co-guardians may be appointed when in the best interests of the minor”), 12 (rights of guardian).  The best interest of the child standard controls appointments of guardians. NH RSA 463:8.  The guardian must annually file a report on the minor’s welfare. NH RSA 463:12.   This status is not permanent, and any person, including the legal parent, may petition to have a guardian removed. NH RSA 463:14-16.

 3. Wills:  The legal parent may nominate a guardian of the child upon the parent’s death.  These wishes are given strong preferences by courts.  Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.

Child Custody / Visitation Disputes

If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use this against me to deny me custody or visitation of my kids?

 The New Hampshire Supreme Court has not yet squarely addressed this issue. States around the country are split on the issue, with a majority deciding the issue based on whether there is evidence of direct harm to the best interests of the child because of the parent’s sexual orientation, and some others assuming harm.  As a matter of logic and experience, a parent’s sexual orientation should not in itself be grounds for denying custody or visitation.

 One state Supreme Court case addressed the fact of gay parenting in the context of a constitutional challenge to New Hampshire’s now-repealed law forbidding gay people from adopting.  The opinion is from an era in which fear of AIDS was rampant, and the opinion did not directly address the issue of how a parent’s sexual orientation would influence a custody contest between two parents.  In the case, known as Opinion of the Justices, the court reasoned that the state’s adoption ban was permissible because of the state’s interest in providing for the “health, safety and proper training for children.” 129 N.H. 290, 296, 530 A.2d 21, 24 (1987).  It reasoned further that parents are the primary role models for children and having a gay parent could influence a child’s sexual identity.  129 N.H. at 296-98, 530 A.2d at 25-26.  But the Court drew a distinction between children in state-approved or state-licensed adoption and foster care programs for whom the State had a special responsibility, and children in already existing families.  In the Court’s words, “this opinion is not meant to suggest that the State might have . . . authority to delve into the privacy of existing . . .  custodial relationships.”  Id. at 298, 530 A.2d at 27.

What are the factors for making custody determinations generally?

 In a divorce, the court treats the parents as equals and presumes that joint legal custody is in the best interests of the child, except in cases where abuse has occurred.  NH RSA 458:17, II.  The term “legal custody” refers to right and responsibility to make major life decisions for the child, including matters of education, medical care, and emotional, moral and religious development.

 “Physical custody” refers to where the child lives, and when it is not divided, then the parent without physical custody has a right to visitation. NH Rev. Stat. sec. 458:17,  IV.  A court may also award visitation or custody to step-parents or grandparents. NH RSA 458:17, VI.

 The court’s decisions are based on the best interest of the child standard.  Place v. Place, 129 N.H. 252, 525 A.2d 704 (1987).  Courts also consider the reports of experts, the conduct of the parties, its effect on the children, and the preference of the children.  Del Pozzo v. Del Pozzo, 113 N.H. 436, 309 A.2d 151 (1973).

How is “sexual orientation” used in custody proceedings?

 In a divorce or paternity proceeding, a parent may argue that the other parent’s sexual orientation is causing detriment to the child.  Any number of reasons can be cited, such as that the gay or lesbian parent’s sexual orientation is causing other people to tease or ostracize the child, or that the parent is a bad role model.   Or a parent may argue that the ex’s new partner is not good for the child.  In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way which does not penalize the gay parent or the child.  Contact GLAD for further resources.
 

Does it matter if my “ex” knew I was gay or lesbian or might be before we separated?

It can make a difference with respect to future modification of court orders for custody.  People can seek to modify permanent court orders for custody in a number of circumstances, including when “the circumstances affecting the welfare of the child have been so greatly altered that there is a strong possibility that the child will be harmed if the child continues to live under the present arrangement...”.  NH RSA 458:17, V (effective Jan. 1, 2001).   If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, he or she may argue that the circumstances surrounding the child’s welfare have changed and that the custody issues should be litigated anew.  Of course, if your spouse or former heterosexual partner knew of your sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.

Can a court keep my kids from visiting when my partner is present?

 The standard for restrictions on visitation, and in all matters, is what is in the best interests of the child with no concern for the adults.  Courts have enormous discretion in visitation matters and certainly have the power to restrict visitation.  But unless the partner is causing harm to the child -- a very high standard -- visitation should not be restricted.

Domestic Violence

What is domestic violence?

 Under the law, “abuse” covers a variety of activities.  These generally include:

a) attempting to cause, or recklessly or purposely causing bodily injury or serious bodily injury;
b) placing another in fear of imminent bodily injury or attempting to do so by physical menace or threats;
c) attempting to or engage in involuntarily sexual relations under threat or force;
d) in some circumstances, attempting to or committing kidnapping, criminal restraint or false imprisonment;
e) attempting to or in fact destroying the property of a person eligible for protection under the domestic violence laws;
f) attempting to or in fact entering onto a person’s property when not authorized to do so where that person  is eligible for protection under the domestic violence laws;
g) repeated communication with the purpose to annoy or alarm another.

Do the domestic violence laws apply to people in same-sex relationships?

 Not explicitly, but most same-sex relationships are covered.   “Abuse” includes the acts defined above if they occur between people who are:

a) “family or household members” -- including people who live together or formerly did so; and
b) “current or former sexual or intimate partners” -- which includes people who are presently or were formerly in a romantic relationship, regardless of whether or not the relationship was “sexually consummated.”  NH RSA 173-B:1, II.

How do I get a court order protecting me from an abusive partner?

 You can get a protective order from the District Court in the town where you or the abuser lives, as well as the Superior Court in the county where you or the abuser lives.  If you live in Rockingham County or Grafton County, you must go to the Family Division Court.  If you have fled your home, you can go the court closest to your temporary home.  Note that the Court will keep your address confidential – you need to let them know if you move so they know how to contact you.

 To apply for a protective order, ask the clerk of the court for a Domestic Violence Petition.  Simply write down what happened to you as clearly and in as much detail as possible.  You must include the date, the time and the location of the important facts about the abuse.  You will have to swear what you have written is true, so don’t guess about something if you don’t know for sure.  Ask for additional pages to write down all of the facts, past and present, of abuse that you can think of.

 If you ask for emergency orders, the clerk will take the papers to a judge.  If you see the judge, just tell him or her simply and honestly what happened to you and why you are in danger.  If the judge finds that you are in danger, he or she may immediately issue temporary protective orders, directing the abuser no to abuse you and not to enter your residence, workplace or school.  The court may also issue an emergency order granting you temporary custody of your children and ordering the abuser to turn over to a peace officer any guns or other deadly weapons he or she could use to harm you.  You will get a copy of the order from the clerk of court and you should keep it with you at all times.

 A copy of the protective order will be sent to the Department of Safety by computer.  The State Police must make information regarding the protective order available to your local police and Sheriff.  The local police must promptly serve your abuser with a copy of the temporary protective order.  There is no charge for this service, and the orders are in effect state-wide in New Hampshire.

What can I do if the courts are closed?

If you are in immediate danger of abuse and no court is open, you may get an emergency protective order by contacting the nearest police department.  A police officer can help you fill out the forms and will contact a judge by telephone.  Everything said in response to the above question remains true about how the process works.  The one difference is that an order issues over the telephone will only be effective until the close of business on the next regular court business day.  For the protection order to remain in effect, you must go to the nearest District, Family or Superior Court before the close of the next business day to ask for a new protective order.

What happens after I obtain a temporary order?

A full hearing will be heard on your petition within 30 days of when you file it or within 10 days of the date the petition is served on your abuser, whichever is later.  The abuser may also ask for a hearing within 3 to 5 days, which you must attend.

You have the right to bring a lawyer to represent you at the hearing.  It is a good idea to see a lawyer if you think custody or child support will be disputed, or if you have been severely injured or expect an injury to last a long time.

If you cannot afford a lawyer, a domestic violence program in your area may be able to refer you to a lawyer who will do the case for free.  Call (800) 852-3388 for referrals.

Where can I go to get help?

 In addition to the local police and district attorney, you can call the resources listed in section II above.  The DOVE Project (Domestic Violence Emergency Project) of the New Hampshire Bar Association can provide referrals.  Contact them at (800) 852-3388, or www.nhbar.org.  Their mailing address is 112 Pleasant St., Concord, NH  03301.

Does domestic violence play a role in custody decisions?

 Yes.  Evidence that a parent has in the past, or is presently, abusing the other parent or the child is a factor showing that a parent should not be presumed to be entitled to joint legal custody, as discussed above.  NH RSA 458:17, II (c).  As “parental conduct,” it is also a factor that will affect the analysis of what is in the best interests of the child.

Hate Crimes / Violence

Does New Hampshire have a hate crimes law?

Yes, New Hampshire has a law providing for increased penalties for hate-motivated violence.   NH RSA 651:6 I-g.  If a person was “substantially motivated to commit the crime because of hostility towards the victim’s religion, race, creed, sexual orientation . . ., national origin, or sex,” penalties may be increased.  The defendant must be notified of the possibility of an enhanced penalty prior to the trial.  NH RSA 651:6, II.

What other laws provide protection against hate-motivated violence?

a) General Criminal Laws:  Hate crimes can sometimes be prosecuted under existing criminal laws, such as assault and battery, assault and battery with a dangerous weapon, murder, etc.  These generic laws do nothing to address the fact that an assault was hate-motivated, but they provide for some level of criminal accountability.  But New Hampshire does allow a sentence to be increased when the crime is bias-motivated.

b) “Civil Rights Law”:  On the civil side, New Hampshire law permits the Attorney General (but not a private person on his or her own) to bring a civil action seeking a protective order or other relief when an attacker -- because of the sexual orientation, race, color, religion, national origin, ancestry, gender or disability of the victim -- interferes with a person’s rights granted them under state or federal law.  NH RSA 354-B:1.  The Attorney General may also bring claims against minors.  NH RSA 354-B:2, II; B:5.  There is no doubt these laws can be used to seek protection from further gay bashing incidents.  In addition,  a person who violates the law may be ordered to pay a fine (to the State) of up to $5,000, as well as out-of-pocket expenses incurred by the victim (to the extent those have not been paid by another). NH RSA 354-B:3.  Violation of a court-issued restraining order or injunction is a criminal offense. NH RSA 354-B:4.

Where can I call if I think I’ve been a victim of a hate crime?

 In addition to contacting the local police, you may contact the 24-hour hotline operated by the Attorney General’s Office at (603) 271-1241.  You may also call the Criminal Division of the Attorney General’s office at (603) 271-3658.  Be sure to explain all of the factors that make you think this was a crime of bias.

 For support and advocacy, contact:

a) New Hampshire Attorney General’s Office, Office of Victim/Witness, 33 Capitol St., Concord, NH  03301-6397, (603) 271-3671;
b) New Hampshire Coalition Against Domestic and Sexual Violence, (800) 852-3388;
c) Task Force Against Domestic and Sexual Violence, (603) 536-1659 (Plymouth);  or
d) Sexual Assault Support Services, (603) 436-4107 (Portsmouth).

Criminal Sex

Does New Hampshire have a sodomy law?

 No.

If it’s not illegal for gay people to have sex, why are gay people still getting arrested?

 Gay people are subject to the full range of laws as are non-gay people, so sex in public, or with underage persons, or without consent, or with force, are all illegal.  Sex for pay -- as either the customer or the provider -- i.e., prostitution, is also illegal.

 Some gay people are arrested for violating the “indecent exposure and lewdness” law.   NH RSA 645:1.    This law targets behavior which is either:

a) fornication (i.e., intercourse), exposure of the genitals, or “any other act of gross lewdness” if the circumstances are such that a person should know those acts “will likely cause affront or alarm”; or
b) purposely performed in front of a child less than 16 years old.

What kinds of activity are forbidden in public?

 The State has a legitimate law enforcement interest in protecting the general public from open displays of sex -- whether the sex is between people of the same-sex or of a different-sex.    But socializing and expressions of same-sex affection between adults that does not involve the touching of genitals or buttocks or exposure of those is not illegal, regardless of where it occurs.  No one should be arrested or hassled for hand-holding, or cruising, or talking, or flirting, or other non-sexual touching.

 Sex is not illegal simply because it takes place outdoors, in parked cars, or on public lands.  It all depends on the circumstances.  For example, a person secreted in a private area, far off of a path behind bushes, or beyond fenced areas, has demonstrated by his or her actions a lack of intent to be seen by others, and can argue the circumstances are such that there was no reason to know his or her activities would cause shock or alarm.  Or activity may take place in a cruising area where there is a reasonable expectation that the people present would not be alarmed by or take offense to the activity.

As a practical matter, regardless of one’s rights, having sex outdoors is a risky business.  For one, based on numerous reports to us, we believe that some police will overlook sexual activity of non-gay people occurring outdoors, but arrest gay people engaged in sexual activity in the same types of venues.  Another concern is that some police “hunt” for gay people having sex outdoors in park lands and rest areas -- sometimes in uniform and sometimes as undercover decoys.  Either way, a person can be charged with a violation of the sex laws.

What is the age of consent for sexual activity?

 Generally, the age of consent for sexual activity is 16.  NH RSA 632-A:3 (sexual “penetration” of person under age 16 is a felony); State v. Berry, 117 N.H. 352, 373 A.2d 355 (1977)(statutory rape when sexual activity occurs with person under age 16).

Does New Hampshire have a “sex offender registry” type of law?

 Yes.  Every state now has such a law, although the terms differ from state to state.

What types of crimes are deemed to be “sex offenses”?

 As you would expect with a law designed to ensnare dangerous and violent predators, most of the crimes involve violence or sex with children.   A single conviction under the indecent exposure law is not a registrable sex offense.  But if you have been convicted under that law of performing a sex act in front of a child who is 12 or younger, or you have previous convictions for indecent exposure in New Hampshire or elsewhere, you are deemed to be a sex offender.   For a full list of sex offenses, see NH RSA 651-B:1.

How can I find out of what charges I have been convicted?

 You can contact the New Hampshire Department of Public Safety, Division of State Police, Central Repository for Criminal Records, 10 Hazen Dr., Concord, NH  03305.  They have their own form, which you must have notarized, and you must pay a $10 fee.  You may request your records in person or by mail.  Their number is (603) 271-2538.

What obligations are imposed on “sex offenders”?  What information is available?

 A sex offender must report his or her mailing address and residential address within 30 days of release of custody or of moving to New Hampshire, and then again every year.  Some will have to do so more often.  In addition, sex offenders must inform the Department of Safety whenever they move, change their name or if they are using an alias.  All convicted offenders are registered with the Department of Safety when the Department receives information about a conviction. NH RSA 106-B:14.

 A convicted sex offender must register for a minimum of ten years and some must do so for life, especially if their crime involved children or if they have multiple convictions.  NH RSA 651-B:6.

 The State Police also maintain a separate list of people convicted of certain offenses (including of the indecent exposure law where the exposure is before someone 12 or younger, or where there are multiple convictions for this or a like offense in NH or elsewhere).

 The information recorded includes personal data, i.e., the name and address of the individual and the offense for which the individual was convicted (and when and where the individual was convicted).  If the information is available, then the list will also include a physical description or photo of the person, information about other convictions and a profile of the victims.

 All of this information is updated and sent monthly to local law enforcement agencies, who then make the information available to “interested members of the public upon request.”  See generally NH RSA 651-B:7.  Among other things, a person may request information about a specific named individual or about all listed individuals residing in a specific city or town. NH RSA 651-B:7, IV.

Police Harassment

I am often told by police to “move along” from public areas.  Is that legal?

 Not necessarily.  If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity.  Public places belong to everyone.  Even if  police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct. Kent v. Dulles, 357 U.S. 116, 126 (1958);  see generally NH Const., pt. 1, art. 19 (Searches and Seizures Regulated).

What are the general rules about interaction with police?

 The presence of individuals who appear to be gay, lesbian, bisexual or transgendered  -- whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other park or rest area patron.

 Police may of course approach a person, and make inquiries when they suspect a person has committed, is committing, or is about to commit a crime.  NH RSA  594:2.   But even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, the person cannot be arrested without probable cause to believe the person committed a crime.

 If an officer has “reasonable suspicion” that a crime has been committed or is about to be committed, he or she may briefly detain an individual, or stop the person for purposes of investigation.  State v. White, 119 N.H. 567, 571-572, 406 A.2d 291 (1979). Terry v. Ohio, 392 U.S. 1, 16 (1968).  According to the New Hampshire Supreme Court, such a brief detention is a permissible intrusion on a person’s liberty when the police officer can point to specific and articulable facts which, taken together with all rational inferences from those facts, warrant the intrusion.   A hunch is not enough.   See e.g. State v. Maya, 126 N.H. 390, 493 A.2d 1139 (1985)(three minute investigative stop in which officer did not more than preserve the status quo did not violate art. 19 since three minutes is the minimal time for establishing identity and assessing the plausibility of a person’s story).

 An arrest can only occur upon “probable cause” that a crime has been committed. See NH RSA 594:10 (police can arrest without warrant if probable cause to believe misdemeanor offense committed in officer’s presence, or if person will destroy evidence of misdemeanor crime, and may arrest if reasonable grounds to believe a felony has been committed).  “Reasonable grounds” is the same as “probable cause.”  State v. Vachon, 130 N.H. 37, 533 A.2d 384 (1987).

What can I do if I believe I have been improperly treated by the police?

 There are several places you can call to discuss your options.  One is GLAD at (800) 455-GLAD.  Another is the NH Civil Liberties Union at (603) 225-3080.

Complaints may be made to any individual police department for matters concerning its officers.  In addition, you may contact the 24-hour hotline operated by the Attorney General’s Office at (603) 271-1241.

Complaints to the New Hampshire State Police may be made to State Police Headquarters, over the telephone or in writing.  A supervisor will call back the complaining person to process further the complaint.  If the State Police act further on the complaint, the complainant will have to come into the office to make a written statement.  Contact State Police Headquarters, 10 Hazen Dr., Concord, NH  03301, (603) 271-2575.  Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.

In some cases, an individual may decide to pursue a lawsuit -- because of injuries, improper detainment, or for some other reason.  These matters are highly specialized, and GLAD can make attorney referrals.

People can also file complaints with the Attorney General’s Office, Criminal Division at (603) 271-3658.  They may participate in an investigation or refer a matter back to the chief of the particular police department at issue.

Student / Youth Issues

Are there any laws protecting gay students in New Hampshire?

 While there are no laws which explicitly protect students based on their sexual orientation, a new law which becomes effective on Jan. 1, 2001 might be of assistance to students who are physically or verbally taunted because of their sexual orientation.

 Under the Pupil Safety and Violence Prevention Act, each local school board must develop a “pupil safety and violence prevention policy” and the State School Board must prepare an advisory to help school districts implement their policies.  NH RSA 193-F:3, I; NH RSA 186:11, XXXVI.

 In addition to developing policies, school employees or people who contract with schools are obliged to report incidents of harassment or bullying to the school principal which they themselves have seen or which they believe have occurred based on reliable information.  The principal must report such incidents to the Superintendent.  Harassment includes “insults, taunts, or challenges, whether verbal or physical in nature, which are likely to intimidate or provoke a violent or disorderly response...”. NH RSA 193-F:3, II.  This law may provide the basis for more a more immediate and thorough response to harassment.

Are there other laws which may protect me from discrimination and harassment because of my sexual orientation?

 Possibly.  Under federal law, public schools which receive federal funds may not discriminate on the basis of sex.  Sometimes, the harassment of a gay student will be sexual harassment forbidden by this federal law, known as Title IX.  Complaints can be made to your school Title IX coordinator, as well as to the federal Dept. of Education, Office of Civil Rights, in Boston.  A student’s constitutional rights may be violated by some kinds of discrimination and harassment.

What can I do if I’m being discriminated against at school?

 There are many ways to approach the issue.  One is to ask for support from a friend, teacher or counselor and talk to the people who are bothering you.  That is not an option, however, if you don’t feel safe doing so.

 Take a look at your school policies and notify whoever is supposed to be notified -- usually a vice principal or Title IX coordinator.  You should document any incidents of harassment or discrimination in writing.  Once you meet with the right officials, make a note of what you told them and on what date and ask when they will be getting back to you with a response.  If they don’t help you or don’t follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination.

 You may also want to contact the State Dept. of Education at (603) 271-3494 or at http://www.ed.state.nh.us/.  If you want to consider legal action against the town, contact GLAD.

Gay / Straight Alliances

Do students have the right to form Gay Straight Alliances in their schools even if the principal or community opposes it?

 Students have broad rights to form groups.  In particular, a federal law known as the “Equal Access Act” provides that secondary school students in schools that receive federal funding and have extra-curricular groups must allow students to form other extra-curricular groups without discriminating based on the religious, philosophical, political or other content of the speech at meetings.  GLAD brought and won a case for students who wanted to start a Gay Straight Alliance at West High in Manchester, New Hampshire on this very basis.