Pennsylvania Human Rights Commission Moves to Enforce LGBTQ NondiscriminationBy Shane Stahl • August 17, 2018 • 11:41 am
LGBTQ residents of Pennsylvania will now be able to seek recourse in instances of discrimination, thanks to a move this month by the state’s Human Rights Commission to officially interpret existing civil rights law to protect the LGBTQ community.
“We cannot continue to tell people to wait: ‘Wait for us to get to a point where we can make sure that you’re not discriminated against,’ ” Chad Dion Lassiter, the PA commission’s executive director, said. “Being a human being in a democracy, people need to be protected.”
The commission will now recognize the language concerning sex discrimination in the existing law to also include the categories of sexual orientation and gender identity.
The Commission found, in its interpretation of the Pennsylvania Human Relations Act:
“The prohibitions contained in the PHRA and related case law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected class, prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression. The Commission will accept for filing sex discrimination complaints arising out of the complainant’s sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression using any and all legal theories available depending on the facts of the individual case.”
This decision comes a few months after similar actions in Michigan, where the Human Rights Commission in May accepted a motion from Commissioner Alma Wheeler-Smith to reinterpret existing civil rights law in a similar fashion. Shortly afterward, that state’s Attorney General, Bill Schuette, wrote a contradicting opinion, stating the commission had overstepped their authority. However, the commission has stood strong, even in the face of Schuette’s opinion.
These major steps forward in Pennsylvania and Michigan are perfectly in step with the growing legal consensus across the United States, which has repeatedly and overwhelmingly found that discrimination based on “sex” also includes discrimination based on sexual orientation and gender identity.
In the past year and a half, the U.S. Courts of Appeals for the 7th Circuit and 2nd Circuit have ruled that federal law already prohibits employment discrimination based on sexual orientation. Other appellate courts – including the 11th Circuit – have found that federal law prohibits employment discrimination based on gender identity. And just last year the 7th Circuit found that the federal Title IX, which prohibits discrimination against students based on sex also covers transgender students. This groundswell of legal consensus is hard to ignore – read all about it in our Litigation Tracker here, including Where We Stand in the Courts.
While more than 50 municipalities in Pennsylvania have passed their own versions of nondiscrimination ordinances, there are still no comprehensive statewide nondiscrimination protections, making Pennsylvania one of 31 states without these laws on the books. Although individual occurrences of discrimination will now be reviewed, without an enforceable statewide law, LGBTQ people are still at risk.
Congratulations to our friends and partners at Equality Pennsylvania for working to make this important decision a reality! Read more about the path to LGBTQ nondiscrimination in Pennsylvania here.