LGBT advocates are blasting last week’s Commonwealth Court ruling that exempts SEPTA from Philadelphia’s antibias laws.
The city wants SEPTA to adhere to its LGBT-inclusive antibias ordinance but SEPTA says it doesn’t have to because it’s a state agency.
In a 5-2 ruling last week, Commonwealth Court sided with SEPTA, claiming the state legislature only intended for SEPTA to be subjected to state antibias rules, which don’t have LGBT protections.
The contentious litigation has ensued for several years, and it’s expected to continue with another city appeal in state Supreme Court.
SEPTA has about 9,000 workers and more than 1 million riders daily in Philadelphia and four nearby counties.
The agency filed suit against the city in 2009, after trans woman Charlene Arcila complained to the city’s Human Relations Commission about SEPTA’s placement of gender stickers on its transpasses. Arcila died in April, and SEPTA no longer places gender markers on transpasses. But Arcila’s complaint remains held in abeyance, due to the possibility that monetary damages will be awarded to her estate.
In its ruling, Commonwealth Court said that exposing SEPTA to complaints such as Arcila’s would be unduly burdensome.
“Spending [public] funds to ensure compliance with any potential number of different local anti-discrimination statutes would divert [the funds] away from SEPTA’s core mission of providing public transportation,” the court stated.
President Judge Dan Pellegrini and Judge Robert Simpson dissented.
Pellegrini characterized as “ludicrous” the majority’s assertion that compliance with the city’s antibias laws would be unduly burdensome for SEPTA.
“[I]nstructing all of your employees to act in a fair and non-discriminatory manner should be instilled from the moment of employment,” Pellegrini opined. “This should not be considered to be a burden, but an opportunity for [SEPTA] to advance the public policy of the commonwealth.”
SEPTA issued a statement after the ruling noting that the city initiated seven separate discrimination complaints against the agency between July 2007-April 2009, which it sought to dismiss “because of SEPTA’s status as a commonwealth agency and its sovereign-immunity protections.
“The case concerned one governmental entity’s authority over another based upon the statutory scheme overlaying both of those governmental entities,” the statement continued. “The central question of the case was whether that statutory scheme authorized the city to apply the [city’s Fair Practice Ordinance] to SEPTA. SEPTA’s motion had nothing to do with protections afforded or not to the LGBTQ community.”
SEPTA continued that it “could not simply accede to the city’s FPO because SEPTA believed the legislature ensured that commonwealth agencies, like SEPTA, should not be subjected to the myriad of regulations any municipality may choose to impose. Thus, if SEPTA did not challenge the city’s authority under the FPO, then the city and the other over 200 municipalities could upset the legislative balance by imposing other requirements on how SEPTA achieves it public mission. SEPTA desired only to maintain the balance of authority between municipalities — like the city — and SEPTA, established by the Pennsylvania legislature.
“SEPTA believes that the city overstepped those bounds by attempting to apply the FPO to SEPTA. The court’s opinion rests squarely on these concerns of following the balance established by the legislature and enabling SEPTA to effectively deliver on its public-transportation mission.”
Leonore F. Carpenter, a law professor who specializes in LGBT issues, wasn’t impressed with SEPTA’s statement.
“In other words, SEPTA has thrown the LGBT community under the bus to consolidate its own power,” Carpenter said.
Carpenter expressed particular concern for SEPTA’s LGBT customers.
“I’m very concerned about the public-accommodations ramifications of this,” she added. “We’re in court, in large part, because gender-variant riders were getting harassed, were getting thrown off buses, because someone questioned whether their transpasses really belonged to them. The only protections LGBT riders have are the protections that the city gives them. The Commonwealth Court demonstrates a cavalier attitude to the effect its ruling has on SEPTA’s LGBT riders.”
Rue Landau, executive director of the Philadelphia Commission on Human Relations, also denounced the ruling.
“We’re in a time when across the country we’re expanding protections in the LGBTQ community, and the Commonwealth Court rendered a decision that would make it legal to discriminate against LGBT riders and employees of SEPTA. That’s shameful,” she said.
Ted Martin, executive director of Equality PA, expressed concern for SEPTA’s LGBT employees.
“The ruling demonstrates exactly why we need statewide nondiscrimination protections that include sexual orientation and gender identity,” Martin said. “SEPTA employees should be protected from discrimination whether they work at 30th Street, Ardmore or Chester. Everyone deserves to earn a living for themselves and their families.”
PCHR chair Thomas H. Earle said the city may file another appeal in state Supreme Court.
“For any public agency to think they can be immune from anti-discrimination laws in their operation is an affront to the entire community,” Earle said. “It’s always good to interpret and apply civil-rights laws as broadly as possible. The [PCHR] will fully explore next steps, including re-filing with the Pennsylvania Supreme Court.”