CONCORD, N.H. (AP) — A proposed amendment to New Hampshire’s constitution that would prohibit discrimination based on sexual orientation divided gay activists Wednesday because it does not cover transgender individuals.

The measure passed the Senate unanimously, but got mixed support from witnesses testifying at a House Judiciary Committee hearing. Most argued there is no clear definition of sexual orientation and said the proposal needs to be studied before being put before voters.

The constitution currently prohibits discrimination based on race, creed, color, sex and national origin. The amendment would add sexual orientation and make New Hampshire the first state to single out gays for constitutional protection.


The measure would take a three-fifths vote by the House to place it on the November ballot. The state already prohibits discrimination based on sexual orientation in statute, but supporters want to enshrine the protection in the constitution.

But Sen. David Pierce, the measure’s prime sponsor, argued New Hampshire’s laws legalizing gay marriage and prohibiting discrimination could be repealed by lawmakers and need to be protected in the constitution. The amendment would not grant special rights to gays as some critics contend, said Pierce, who is gay.

‘‘Equal means what is common to everyone. No one is raised above anyone else,’’ said Pierce, D-Hanover.

House Commerce and Consumer Affairs Chairman Ed Butler, a bill co-sponsor who also is gay, testified against moving ahead with the proposal because it did not have the full support of the gay and transgender community.

Butler is a longtime activist for gay rights and a co-sponsor of New Hampshire’s gay marriage law, but he said he couldn’t support an amendment that referred to sexual orientation since that definition does not commonly include transgender individuals. He said New Hampshire’s anti-discrimination law does not protect transgender individuals either and more work needed to be done to protect them statutorily.


Former state Rep. Mo Baxley, another gay rights activist, agreed with Butler that the proposed amendment was too narrow.

‘‘The term sexual orientation alone without the inclusion of gender identity and expression is not acceptable,’’ she said.

Baxley, of Laconia, said the House should study the issue instead of putting it before voters in November.

But Brendan Denehy, of Brookline, argued the constitutional protection was too important to prevent lawmakers from repealing hard-won rights. He recalled working 20 years ago to add sexual orientation protections to New Hampshire’s civil rights laws.

‘‘An unforgettable memory from this period was going to a public kickoff for the Coalition (to End Discrimination) and seeing people wearing paper bags over their heads because they feared being fired or evicted if people knew they were gay, Lesbian or bisexual,’’ he said.

Some opposed the amendment as potentially granting protections to gays that cost others their religious rights.

Cornerstone Executive Director Bryan McCormack called it an intrusive restructuring of the constitution to grant special protections for one group of people at the expense of others’ rights.

And Janet Huttula, of Londonderry, said there is too much confusion over who would be protected under sexual orientation.

‘‘If you don’t pin it down, there will be discrimination against others,’’ she said. ‘‘You need to lead when you know where you’re going.’’