State agency approves LGBTQ-inclusive antibias regulations

Adobe Stock Flag of Pennsylvania and LGBT. Pennsylvania and LGBT Mixed Flag waving in wind. 3d rendering rainbow PA
The Pennsylvania state flag. (Photo: Adobe Stock)

In a 3-2 vote last week, the state Independent Regulatory Review Commission approved regulations that protect LGBTQ individuals from discrimination in employment, housing, public accommodations and education in Pennsylvania.

The regulations clarify that sex discrimination — which already is prohibited by state law — encompasses discrimination on the basis of sexual orientation and gender identity.

The Independent Regulatory Review Commission (IRRC) is a review agency that ensures other state agencies enact regulations in accordance with state law. In this case, IRRC approved regulations adopted by the Pennsylvania Human Relations Commission in March.

M. Joel Bolstein, chair of the PHRC, has been advocating for the LGBTQ-friendly regulations for a lengthy period of time. In an interview, he expressed relief that the regulations were approved.

“I’m happy that the IRRC approved the reg package,” Bolstein told PGN. “It means that now there will be statewide legal protections in the Commonwealth for LGBTQ individuals.”

The vote was held after a 90-minute discussion on Dec. 8 in Harrisburg. The commissioners who voted to approve the regulations are George D. Bedwick, Murray Ufberg and Dennis A. Watson, all of whom are Democrats. The two commissioners who voted against the regulations are John F. Mizner and John J. Soroko, who are both Republicans, according to public records.

Several people testified about the regulations immediately prior to the vote. Some spoke in favor of the regulations; others opposed them.

Janice Martino-Gottshall, senior counsel for the Pennsylvania Family Institute, spoke against the regulations, citing concerns about Trans-inclusive restrooms in public accommodations and educational settings.

But Preston Heldibridle, executive director of the Pennsylvania Youth Congress, spoke in favor of the regulations, citing the importance of safety for LGBTQ youth.

Mizner and Soroko spoke against the regulations, stating the issue is best left to the state legislature. “It was clear from the discussion that the dissenting commissioners had concerns that this was an issue best left for the state legislature,” said David Sumner, executive director IRRC.

The commissioners who voted in favor of the regulations said the regulations were in the public interest and PHRC has the statutory authority granted by the legislature to adopt the regulations.

Bolstein said he had tears of joy after the vote. “I was nervous as they were taking the final vote,” he said.

Bolstein also said PHRC doesn’t see a need to advocate for a statewide Fairness Act, though he realizes that some individuals and groups may wish to do so .“From our standpoint, we now have all the tools were need to protect LGBTQ individuals from discrimination in Pennsylvania,” Bolstein asserted.

Sara J. Rose, deputy legal director for the ACLU of PA, said it remains important to advocate for the Fairness Act. “If the [LGBTQ] protections aren’t enshrined in the state statute it’s easier to take those protections away,” Rose told PGN. “Putting these protections into the regulations is great. But we would love to see the legislature pass these protections into a law.”

Since 2018, due to guidance previously approved by the PHRC, the agency has been accepting LGBTQ-related antibias complaints for investigation. But now PHRC is poised to have regulations that have the force of law. Boelstein said that puts the agency in a better position to enforce the state Human Relations Act.

Bolstein said there was a public-comment period in the spring of 2022 regarding the new regulations. The regulations still must be published in the Pennsylvania Bulletin and key state legislators are expected to weigh in early next year. Boelstein said he expects the regulations to go into effect in the spring of 2023. Meanwhile, LGBTQ-related antibias complaints will continue to be accepted for investigation by PHRC under the 2018 guidance.

There were many public comments regarding the regulations, noted Sumner of the IRRC. “We received approximately 2,000 form letters concerning the PHRC regulation,” Sumner said, in an email.  “Most of these comments — roughly 1,600 — opposed the new regulations while approximately 300 supported them. The remaining public comments were almost evenly split. [W]e also received legislative comments from members of the General Assembly in support of — and opposed to — the regulations.”

Sumner expressed his thoughts about the 3-2 vote by IRRC commissioners. “It was clear from the discussion that our dissenting commissioners had concerns regarding the agency’s authority for these rules and whether expanding the scope of protected classes is a decision for the legislature. These are both factors in the Regulatory Review Act that the Commission is obligated to consider,” he said.

Sumner added: “Our commissioners are united in condemning discriminatory, unlawful conduct. A vote that is not unanimous does not mean that there is opposition to the merits or goals of a regulation but, instead, reflects each commissioner’s evaluation of the regulation under the Regulatory Review Act. Every one of our commissioners recognizes and respects the rights of our citizens — along with the importance of having fair and clear rules for Pennsylvania employers, small businesses, and residents.”

Randall L. Wenger, chief counsel for the Independence Law Center, a conservative Christian group, expressed disagreement with the new regulations. “Every Pennsylvanian should be treated with dignity and respect,” Wenger told PGN. “Unfortunately, laws like those just approved by IRRC have been used to punish respectful people who simply don’t want to participate in an event or message with which they disagree. And without clear parameters, such laws have also been used to open up settings like locker rooms where persons — even minors — find themselves exposed against their will to opposite-sex anatomy. As Pennsylvanians we can do better.”

The protected categories covered under the Pennsylvania Human Relations Act include race, color, familial status, religious creed, ancestry, national origin, age, sex, handicap or disability or the use of a guide or support animal because of the blindness, deafness or physical handicap of the user or because the user is a handler or trainer of support or guide animals.