Suit claims Pa. Human Relations Commission's LGBTQ+ protections are unconstitutional
Two school districts and a group of parents are suing the Pennsylvania Human Relations Commission over its expansion of the prohibition on sex discrimination to include LGBTQ+ people.
The lawsuit was filed last week in Commonwealth Court by the Thomas More Society, a conservative Catholic public interest law firm. It alleges the PHRC violated the state constitution when it 'created a heretofore unimagined meaning of 'sex' within the Commonwealth of Pennsylvania.'
The commission, which enforces state laws against discrimination, announced new regulations in June 2023 under the Pennsylvania Human Relations Act (PHRA) and the Pennsylvania Fair Educational Opportunities Act (PFEOA). The regulations clarified the definition of 'sex' to include 'sex assigned at birth, gender identity or expression, differences in sex development and affectional or sexual orientation,' consistent with the broad definitions used by federal and state courts.
'Gov. Josh Shapiro's and the Pennsylvania Human Relations Commission's radical redefinition of 'sex' undermines our state constitution, parental rights, and the fair and equal treatment of every Pennsylvanian — male or female,' Thomas More Society attorney Tom King of Butler, said in a statement. 'This regulatory redefinition of reality is a blatant example of government bureaucrats overstepping their authority to push gender ideology.'
A spokesperson for the PHRC said the agency was referring requests for comment to Gov. Josh Shapiro's office.
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At an event touting his energy plan Wednesday, Shapiro responded to a question, saying had not read the lawsuit but believes it is his responsibility as governor to carry on the vision of William Penn to make Pennsylvania 'a place that would be warm and welcoming for all people.'
'I understand that there are those who want to try and score cheap political points by bullying a trans kid or making it harder for someone to marry who they love,' Shapiro said. 'That's just not where I am, and that's certainly not where I think the vast majority of Pennsylvanians are. The people I meet every day are people who are welcoming, people who are tolerant, and I think we need to continue to be welcoming and tolerant here in this Commonwealth.'
At least 24 states and dozens of cities and other municipalities across the United States have extended anti discrimination laws to protect LGBTQ+ people.
In May 2023, the state House passed House Bill 300, which would have statutorily included LGBTQ+ people as a protected class under the Human Relations Act. The measure, which had bipartisan support in the chamber, was never considered in the state Senate.
The legislation, called the Fairness Act, was first introduced in 2001 by Rep. Dan Frankel (D-Allegheny), but only passed in the House 22 years later, after Democrats won a one-vote majority.
After the House returned to session this past January, the House LGBTQ+ Equality Caucus responded to an executive order by President Donald Trump recognizing only male and female sexes, saying 'the ground has shifted under the feet of transgender people in the wake of President Donald Trump's executive orders and speeches, which denied their very existence.'
'These actions are hateful, ignorant, and dangerous—they threaten to unravel decades of progress our society has made toward fairness and equality,' the caucus, chaired by Rep. Jessica Benham (D-Allegheny), said in a statement. 'Gender identity and expression cannot be delegitimized by the stroke of a pen. Attempts to do so are shameful.'
The caucus said its members would pursue and exhaust all legislative avenues 'through the Fairness Act and beyond' to safeguard transgender people in Pennsylvania.
The plaintiffs in the lawsuit include the South Side Area and Knoch school districts in Beaver County and the parents of children enrolled in public schools in Chester, Delaware, Lawrence and Montgomery counties. Rep. Barbara Gleim (R-Cumberland) is also a plaintiff.
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The suit notes that while the state constitution permits the legislature to delegate the authority to administer and execute laws, the 'basic policy choices' and standards to guide and restrain administration of laws must be established by the legislature. The plaintiffs claim the legislature did not give the PHRC authority to expand the definition of 'sex' or 'gender.'
It also claims the PHRC regulations conflict with a recent state Supreme Court decision that referred to a 1968 Random House Dictionary definition of 'sex' based on reproductive functions and physical characteristics. In that decision, the court declared the state's ban on Medicaid-funded abortions 'presumptively unconstitutional.'
The PHRC's regulations usurp the legislature's authority, the suit claims, under the Public School Code. Under it, school boards have the power to regulate their schools and student activities. However, under the PHRC regulations, school boards that choose to divide school rest rooms, sports and other activities by male and female genders are engaging in prohibited discrimination, the suit says.
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