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Policing, Prisons, & Criminal Justice | Discriminatory Treatment | New Hampshire

New Hampshire Discriminatory Treatment Q&A

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

Yes. New Hampshire’s law banning sexual orientation discrimination in employment, public accommodations and housing has been in effect since January 1, 1998 (see Norma Love, “Senate Passes Gay Civil Rights; Shaheen to Sign it,” Foster’s Daily Democrat, May 7, 1997).

Does the law protect transgender people?

Unfortunately not. New Hampshire is the only state in New England with no state laws explicitly protecting transgender people from discrimination.

However, some non-statutory protections do exist: in June 2016, New Hampshire Governor Maggie Hassan issued an Executive Order prohibiting discrimination based on gender identity or gender expression in state employment, state-run programs, and government contracts (NH Exec. Order No. 206-04 (June 30, 2016), http://governor.nh.gov/media/orders/documents/eo-2016-04.pdf). GLAD continues to work with organizations such as Freedom New Hampshire to ensure a future where all transgender Granite Staters receive full and equal protection under the law. For more information about the campaign, see http://www.freedomnewhampshire.org/.

Does the law protect people perceived as being gay, lesbian, and bisexual?

Yes. New Hampshire 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-c). While the courts have not ruled on the meaning of the “perceived” language, it should mean that if a person is fired because they are perceived to be gay, they may invoke the protection of the anti-discrimination law regardless of their actual orientation.

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 a police officer wants to deter crime, or suspects some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is actually 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 LGBT – 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.

If an officer has “reasonable suspicion” that a crime has been committed or is about to be committed, they may briefly detain an individual, or stop the person for purposes of investigation (NH RSA 594:2. See also, State v. White, 119 N.H. 567, 571-572 (1979). Terry v. Ohio, 392 U.S. 1, 16 (1968)). According to the New Hampshire Supreme Court, such a detention is only permissible 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 (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 1-800-455-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 you back to further process the complaint. If the State Police act further on the complaint, you will have to come into the office to make a written statement. Contact State Police Headquarters, 33 Hazen Dr., Concord, NH  03305. Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.

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