State panel updates anti-discrimination regulations amid increasing scrutiny

Meredith Willse
York Dispatch

A state panel on Thursday narrowly approved new, more inclusive definitions of sex, religious creed and race in Pennsylvania's anti-discrimination regulations.

The move, which supporters say will give broader protections to marginalized groups, comes amid increasing anti-LGBTQ rhetoric locally and nationwide. Recent turmoil, particularly centered around schools, brought increased scrutiny to the ordinarily sleepy Independent Regulatory Review Commission.

All of this came on the same day Congress passed a bill protecting same-sex and interracial marriages and as the Supreme Court considers a case of a Christian graphic artist who refused to design wedding websites for gay couples.

FILE - Philadelphia's altered gay pride flag is seen outside City Hall on  June 19, 2017, in Philadelphia. Pennsylvania government regulations would be revised with extensive definitions of sex, religious creed and race under a proposal set for a vote on Thursday, Dec. 8, 2022 — a change some Republican lawmakers see as an overreach on a subject they think should not be addressed without legislation. (AP Photo/Matt Slocum, File)

In Pennsylvania, the IRRC, which oversees various state regulations, signed off on the set of definitions that concern the types of employment, housing, education and public accommodations discrimination complaints that can be brought before the state Human Relations Commission.

On Thursday, Pennsylvania Human Relations Commission Chair M. Joel Bolstein told the panel that the current definitions are undefined. That leads to complications as the PHRC hears between 3,000 and 4,000 relevant complaints each year.

“The new regulatory definitions are consistent with the evolving case law at both the state and federal level,” Bolstein said. 

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Bolstein noted that the state's current anti-discrimination law was written in the 1950s, before many gave a thought to issues around sexual orientation or gender identity.

These specific rules won't necessarily provide clarity to school boards such as Red Lion, which is grappling with complaints from parents about transgender students, although districts may look to the revised definitions in drafting their own policies.

“We don’t tell schools what they should or shouldn’t do in regard to bathrooms or locker rooms,” Bolstein said. 

Supporters said the definitions will provide greater clarity to people who bring such complaints as well as the employers, organizations and others who must defend against them, while opponents said the Legislature was better positioned to make those changes.

“It just seems to me that the Legislature has not adopted definitions over the course of numerous, numerous years,” said the regulatory panel's chairman, George Bedwick, a Democratic appointee. He called it “strong evidence that the intent” when the Human Relations Act was first adopted in the 1950s was and continues to be "to allow the commission to define those terms.”

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Republican appointee John Soroko said his “no” vote was based “solely and strictly” on his belief that the change in regulations was outside the Human Relations Commission's authority.

Democratic Gov. Tom Wolf said he supported the change, which is expected to take effect early next year.

“I have been clear — hate has no place in Pennsylvania,” Wolf said Thursday. “This includes protecting the rights of individuals facing discrimination by a school, landlord, or employer based on who they love or their gender identity.”

Gov. Tom Wolf in York county's new state park on Forge Lane in York County on Tuesday, Sept. 27, 2022.

The move to clarify the terms “sex,” “religious creed” and “race” builds on a 2018 decision by the Human Relations Commission to start accepting complaints about LGBTQ discrimination.

The regulation defines “sex” as including pregnancy, childbirth, breastfeeding, sex assigned at birth, gender identity or expression, affectional or sexual orientation, and differences in sex development.

“Race” discrimination includes ancestry, national origin, ethnic characteristics, interracial marriages and association, traits such as hairstyles that are historically associated with race, and national origin or ancestry.

And “religious creed” covers all aspects of religious observance, practice and belief.

In a May letter to the Independent Regulatory Review Commission, state Rep. Seth Grove, R-Dover Township, argued the new definitions were in effect an end-run around the Legislature.

“The policy choice of whether Pennsylvania should extend the definition of ‘sex discrimination’ in such a manner remains just that: a policy choice,” Grove said. “As such, it is squarely and exclusively the prerogative of the General Assembly to pursue.”

Rep. Seth Grove makes a fired-up response to Governor Wolf calling local officials cowards as members of the General Assembly from York and Adams counties hold a rally at Gene Latta Ford in Hanover to discuss the need to reopen the local economy by allowing people to safely and responsibly return to work. 
Tuesday, May 12, 2020. 
John A. Pavoncello photo

Rep. Dan Frankel, D-Allegheny, a longtime proponent of LGBTQ nondiscrimination bills, said Republican opponents “have blocked every attempt that we've had on the House floor to do this. So that provides plenty of rationale to proceed on the regulatory basis.”

The Pennsylvania Catholic Conference, the public affairs arm of the state's bishops, said the proposal would hurt small businesses and religious entities and would not protect religious freedom. State law permits religious organizations to hire or employ on sex-based grounds when that is a bona fide part of the job.

Bolstein told The Associated Press that the proposal won't force religious organizations in which priests must be men to hire women, and that the state's Religious Freedom Protection Act also provides some legal protections.

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A group of 11 Republican state senators also weighed in against the regulatory change, saying it “operates in contrast to the intent of the legislature, lacks prescribed statutory authority and ultimately garners our disapproval.”

The Pennsylvania Chamber of Business and Industry said it supports “the intent” of the commission's proposal and that at the group's request some changes were made, including a two-month delay on implementation.

Although many municipalities in the state have nondiscrimination ordinances that address sexual orientation, gender identity and expression, that is not the case statewide.

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In 2018 the Human Relations Commission announced it would accept and investigate such complaints as sex-based discrimination.

Although the change was announced in a news release and has produced largely employment-based complaints, there are indications many people were not aware of the 2018 policy change, Bolstein said.

The ACLU of Pennsylvania fought for a change in state law to protect LGBT people against discrimination for about 20 years. The organization's legal director, Sara Rose, said the approval was an important step forward.

“Ultimately, the General Assembly should pass legislation to bar discrimination against LGBTQ Pennsylvanians so that it will be enshrined into state statute and will not be subject to the whims of a future governor,” she said. 

The Associated Press contributed to this report.

— Reach Meredith Willse at mwillse@yorkdispatch.com or on Twitter at @MeredithWillse.