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HARRISBURG — In the waning days of his final term, Governor Tom Wolf is backing a regulatory change that would formalize anti-discrimination protections for LGBTQ people while circumventing the legislature.
According to guidance published 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 employer if they believe they have been discriminated against because of their sexual orientation or gender. . identity.
An inconspicuous proposal supported by Wolf, which is ready to final approval before a state regulatory board on Thursday, it would formally adopt that guidance.
Regulation instead of legislation
“The Governor has been clear: Hate has no place in Pennsylvania, and that includes discrimination based on sex as defined in these regulations,” Wolf spokeswoman Beth Rementer said in a statement.
Wolf, a Democrat first elected in 2014, has called on Republican leaders in the General Assembly during his tenure to pass a bill that would add anti-discrimination protections based on sexual orientation and gender identity to state law. . Pennsylvania is the only state in the Northeast with no such law on the books, and one of 27 throughout the country without an explicit law prohibiting such discrimination.
“Unfortunately, given the Republican-led efforts to push through legislation that only seeks to discriminate and intimidate people and their refusal to accept common sense bills, this action through regulation is yet another 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 state anti-discrimination laws. the Pennsylvania Human Relations Law prohibits discrimination in hiring, firing, housing, and schooling on the basis of sex, although it does not define the term.
In 2018, the state 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 itthe right thing to doits chief executive 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 on the 2020 US Supreme Court ruling in Bostock v. Clayton Countyin which the court found 6-3 that existing federal law protected an employee from being fired just for being gay or transgender.
How to file a complaint
The Pennsylvania Human Relations Commission enforces the state’s anti-discrimination laws, including the Human Relations Law. That law is broader than federal law in one key way: It applies to businesses with four or more employeesas 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 attorney who works on LGBTQ issues. The person does not need to hire their own lawyer, which can be expensive.
The commission then has the power to investigate, negotiate settlements and adjudicate claims through an internal hearing process or, as a last resort, through a civil suit in the Commonwealth Court. The commission awarded $1.4 million in 386 settlements during the last fiscal year.
By formalizing orientation, transgender, nonbinary and other gender expansive people could have even more resources at the local level, said Tyler Titus, a former Erie school board member and the first openly transgender person to win public office in community.
The 2018 guidance was informal and added reasons why a person can file a complaint, Titus said. The adoption of formal regulation means that “there is some legal statute or policy” that policymakers “can lean on and take action,” they said.
And by ensuring that the LGBTQ community has access to education, housing and health care, the regulation could reduce the disproportionate high risk of suicide among queer youth, continued.
Republican response to the proposed rule
The Wolf administration, many Democratic lawmakers and a number of LGBTQ advocacy groups are backing the proposal, which is currently before the Independent Regulatory Review Commission, a state agency that oversees executive rulemaking.
A group of Republican lawmakers responded, saying it usurps their authority to make laws.
“While the General Assembly has yet to make these policy decisions, that should not be construed as an abdication of responsibility and therefore a signal to a bureaucratic agency to take up the task,” 11 Republican state senators wrote in a letter from june to the review committee. “Without action by the General Assembly 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 plot in May that the rule would infringe on the religious freedom of those who believe “that God created every person, whether male or female” and “created marriage as sacred between a man and a woman.”
In a letter from may Speaking to the regulatory panel, state Rep. Dan Frankel (D., Allegheny) rejected claims that allowing LGBTQ people to file discrimination complaints places an undue burden on businesses or religious organizations. He cited commission figures showing that only 42 of the 3,660 complaints filed from July 2020 to June 2021 were related to sexual orientation or gender identity.
“While these protections are incredibly important, their implementation does not appear to have caused any crises, even for small businesses or religious organizations,” Frankel wrote.
With Shapiro in office, overturning the legislative regulation is in doubt
This isn’t the first time Wolf has stepped out of the legislature to help LGBTQ people. In 2019, he silently moved allow the Pennsylvania Department of Transportation to issue gender-neutral driver’s licenses. He also created a commission on LGBTQ affairs 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 maneuvering has sparked legislative fights with the General Assembly, which has tried unsuccessfully to strike down the regulations or negotiate them during budget negotiations.
with the democrats win most seats in the Pennsylvania House of Representatives on November 8, and Democrat Josh Shapiro set to replace Wolf as governor, such a result appears off the table. A spokesman for state Senate Republicans did not respond to a request for comment.
Even with the regulatory move, the state law still needs to be expanded to include protections for sexual orientation and gender identity, LGBTQ advocates said. A future governor could still strike down a regulation without legislative input. And passing a law could ensure there are no gaps, such as in companies with fewer than four employees.
On the campaign trail, Shapiro said he would “use my political capital” to expand state anti-discrimination laws.
In an email, Manuel Bonder, a spokesman for Shapiro’s transition team, said the governor-elect “will work to ensure that all Pennsylvanians receive equal protection under the law, regardless of who they love, what they look like, or who they are.” they pray. and he will continue to stand in the way of any attempt to discriminate against or restrict the liberties of Pennsylvanians.”
A statewide nondiscrimination law would ensure that “when it comes to liberty and justice for all, where we found our government, we are going to lead and we mean liberty and justice for all,” Titus said.
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