Update, Dec. 8: The Independent Regulatory Review Commission voted 3-2 on Thursday to approve the regulatory change.
In the closing days of his final term in office, Gov. Tom Wolf is backing a regulatory change that would formalize nondiscrimination protections for LGBTQ people while circumventing the legislature.
Under guidance released in 2018, a student, tenant, or worker at most businesses can file a complaint with the Pennsylvania Human Relations Commission against their school, landlord, or boss if they think they’ve been discriminated against because of their sexual orientation or gender identity.
A little-noted proposal supported by Wolf, which is up for final approval before a state regulatory board Thursday, would formally adopt that guidance.
“The governor has been clear — hate has no place in Pennsylvania, and that includes sex-based discrimination as defined by these regulations,” Wolf spokesperson Beth Rementer said in a statement.
Wolf, a Democrat first elected in 2014, has asked Republican leaders in the General Assembly throughout his tenure to pass a bill that would add discrimination protections based on sexual orientation and gender identity to state law. Pennsylvania is the only state in the northeast without such a law on the books, and one of 27 nationwide without an explicit law banning such discrimination.
The legislature has ignored Wolf’s prodding, as it has on many other issues. So, like he has on climate change and policing, Wolf has turned to a channel that avoids state lawmakers.
“Unfortunately, given Republican-led efforts to push legislation that only seeks to discriminate and bully individuals and their refusal to take up commonsense bills, this action through regulation is one more way the administration can protect Pennsylvanians,” Rementer said in a statement.
Like the original guidance, the proposed regulation focuses on the definition of sex as it applies to the state’s nondiscrimination laws. The Pennsylvania Human Relations Act bans discrimination in hiring, firing, housing, and schooling on the basis of sex, though it does not define the term.
In 2018, the state’s Human Relations Commission said it would adopt an expanded definition of sex based on federal court rulings to encompass sexual orientation and gender identity.
The commission considered it “the right thing to do,” its executive director told Billy Penn at the time, though the guidance was not formally adopted through the regulatory process.
The proposed rulemaking would adopt a definition of sex based upon the 2020 U.S. Supreme Court ruling in Bostock v. Clayton County, in which the court found 6-3 that existing federal law protected an employee from being fired just for being gay or transgender.
The Pennsylvania Human Relations Commission enforces the state’s nondiscrimination laws, including the Human Relations Act. That law is more expansive than federal ones in a key way: It applies to businesses with four or more employees, as opposed to 15 or more.
A person can file a complaint directly with the commission, whose staff will help navigate the process, said Angela Giampolo, a Philadelphia lawyer who works on LGBTQ issues. The person doesn’t need to hire their own attorney, which can be costly.
The commission then has the power to investigate, negotiate settlements, and adjudicate claims through an internal hearing process or, as a last measure, through a civil lawsuit in Commonwealth Court. The commission awarded $1.4 million in 386 settlements during the last fiscal year.
By formalizing the guidance, transgender, nonbinary, and other gender-expansive individuals could have even more recourse at a local level, said Tyler Titus, a former Erie school board member and the first openly transgender individual to win public office in the commonwealth.
The 2018 guidance was informal and added reasons why a person could file a complaint, Titus said. Adopting a formal regulation means “there is some legal statute or policy” that policymakers “can lean on and take action” from, they said.
And by ensuring that the LGBTQ community has access to education, housing, and medical care, the regulation could cut down on the disproportionately high risk of suicide among young queer individuals, they continued.
The Wolf administration, many Democratic lawmakers, and a number of LGBTQ advocacy groups are backing the proposal currently before the Independent Regulatory Review Commission, a state agency that oversees executive rulemaking.
A group of Republican legislators have pushed back and said it usurps their authority to make laws.
“While the General Assembly has yet to make these policy decisions, that should not be interpreted as an abdication of responsibility and thus a signal to a bureaucratic agency to pick up the task,” 11 Republican state senators wrote in a June letter to the review commission. “Without the General Assembly’s action to do so, the PHRC is attempting to circumvent the constitutional power and responsibility of the General Assembly.”
Other opposition came from the Pennsylvania Catholic Conference, which argued in May that the rule would infringe on the religious freedom of those who believe “that God created each person either male or female” and “created marriage as sacred between one man and one woman.”
In a May letter to the regulatory panel, state Rep. Dan Frankel (D., Allegheny) pushed back on claims that allowing LGBTQ people to file discrimination complaints unduly burdens businesses or religious organizations. He cited numbers from the commission that show just 42 out of 3,660 complaints filed from July 2020 until June 2021 were related to sexual orientation or gender identity.
“While these protections are incredibly important, implementing them has not appeared to cause any crisis, including for small businesses or religious organizations,” Frankel wrote.
This isn’t the first time Wolf has gone outside of the legislature to aid LGBTQ people. In 2019, he quietly moved to let the Pennsylvania Department of Transportation issue gender-neutral driver’s licenses. He also set up an LGBTQ affairs commission and signed an executive order to discourage conversion therapy, which claims it can change a person’s sexuality or gender identity and has been rejected by the American Psychological Association.
In previous years, Wolf’s regulatory maneuvers have sparked legislative fights with the General Assembly, which has unsuccessfully attempted to override the regulations or negotiate them away during budget talks.
With Democrats winning a majority of seats in the Pennsylvania state House on Nov. 8, and Democrat Josh Shapiro set to replace Wolf as governor, such an outcome appears off the table. A spokesperson for state Senate Republicans did not reply to a request for comment.
Even with the regulatory move, expanding state law to include sexual orientation and gender identity protections is still necessary, LGBTQ advocates said. A future governor could still repeal a regulation without legislative input. And passing a law could ensure that there aren’t any gaps, such as at businesses with fewer than four employees.
On the campaign trail, Shapiro said he would “use my political capital” to expand the state’s nondiscrimination laws.
In an email, Manuel Bonder, spokesperson for Shapiro’s transition team, said that the governor-elect “will work to ensure all Pennsylvanians receive equal protection under the law — regardless of who they love, what they look like, or who they pray to — and he will continue to stand in the way of any attempts to discriminate against or restrict Pennsylvanians’ freedoms.”
A statewide nondiscrimination law would ensure that “when it comes to liberty and justice for all, where we founded our government, we’re going to lead and that we mean liberty and justice for all,” Titus said.
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