Recently, the Pennsylvania Human Relations Commission (“PHRC”) announced guidelines describing how it will now address LGBTQ-related complaints under the Pennsylvania Human Relations Act (“PHRA”).  The PHRA covers discrimination not only in the context of employment, but also with regard to public accommodations, housing and commercial property.

Although “sex” is expressly indicated as a protected class under the PHRA, the term “sex” is not defined by the statute. This has led to questions concerning whether or not such protections extend beyond a person’s sex assigned at birth (i.e. what is recorded on a person’s original birth certificate based upon that person’s external anatomy).  According to the new PHRC Guidance, the Commission has decided that it will interpret “sex” discrimination under the PHRA to not only include discrimination based upon a person’s sex assigned at birth but also include discrimination based upon a person’s sexual orientation, transgender identity, gender transition, gender identity and/or gender expression.  Although such Guidance cannot be cited as binding authority in any legal proceedings, its purpose is to indicate how the PHRC intends to accept complaints, conduct investigations and adjudicate cases alleging sex discrimination under the PHRA going forward.

Many advocates of the new PHRC Guidance view it as a substantial step toward eliminating discrimination against LGBTQ persons in today’s society. Many advocates also view the new PHRC Guidance as consistent with decisions of federal and state courts across the country which have made similar determinations regarding what constitutes “sex” discrimination under federal and state law.  By way of example, District Judge Cathy Bissoon of the U.S. District Court for the Western District of Pennsylvania previously ruled that “sex” discrimination under Title VII of the federal Civil Rights Act prohibits employers from discriminating against employees based on sexual orientation.

Noticeably, a significant portion of the PHRC Guidance addresses the rights of those who believe that enforcement of the PHRA against their actions could violate their right to freely exercise their religion.  Such persons are advised that they can avail themselves to the protections of Pennsylvania’s Religious Freedom Protection Act (“RFPA”).  Under the RFPA, a defense can be raised in any judicial or administrative proceeding if it is proven by clear and convincing evidence that the free exercise of religion has been burdened, or likely will be burdened, in violation of the RFPA.

This additional section of the new PHRC Guidance may be in response to such cases as Masterpiece Cakeshop v. Colorado Civil Rights Commission where the Supreme Court of the United States ruled in favor of a Colorado baker who refused to create a wedding cake for a same-sex wedding based upon freedom of speech and the free exercise of religion.  Although the Supreme Court did not address the free exercise issues head-on in its decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, it is apparent that the PHRC recognizes that such businesses and respondents to PHRA complaints may raise similar arguments that their actions (or refusal to act) under the new PHRC guidance has burdened their free exercise of religion.

Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.