The Pennsylvania Human Relations Commission recently announced new regulations which extend nondiscrimination protections to the LGBTQ+ community in employment, housing, commercial property, education and public accommodations. The protections are the result of the PHRC redefining the definition of “sex” — one of the protected classes in the Pennsylvania Human Relations Act — to include sexual orientation and gender identity.
In justifying its reason for redefining “sex,” the PHRC said the update “is consistent with the manner in which the term ‘sex,’ as used in Title VII and Title IX, have been interpreted by federal courts, including the United States Supreme Court.”
The regulation, which has the power of law, was approved and will take effect on Aug. 16.
But as we’ve seen from the Obama-Trump transition, Trump revoked many of the Obama administration’s regulations involving the trans community and others. Governing by regulation is precarious at best. It leaves protections to the whims of whoever is in office at the time. And Pennsylvania’s LGBTQ+ community deserves more than protections that work only when a Democrat is in office. The Fairness Act, which is currently sitting in committee in the state senate, would solidify LGBTQ+ nondiscrimination in a way that the new PHRA regulation cannot.
The reason why the Fairness Act would be a much better option is not only because the protections granted by the updated PHRA could be revoked by a Republican governor, but because it’s likely that conservative groups such as the Pennsylvania Family Institute are already preparing a legal case to challenge this new regulation in court. Considering the makeup of the Pa. Supreme Court — four Democrats, two Republicans and one vacant seat awaiting the result of the 2023 election — it’s not a sure bet the regulation would stand.
One side effect of these new regulations is they make passage of the Fairness Act more difficult: Republicans control the Pennsylvania Senate. LGBTQ+ nondiscrimination is not a priority for them. Any Republican leaning toward voting for the Fairness Act can now point to the PHRC’s announcement and say that the community is already protected. The announcement gives them the out they need to avoid a controversial political vote.
Similarly, anybody trying to get a corporation on board to support the Fairness Act will likely face similar challenges. “The community’s already protected, right? Why should we write this letter then?”
While we are currently going through a period where we’re discovering our steadfast allies — the allies who will stand with us and take the hits — good politics requires more than your ride-or-die supporters. Just as the LGBTQ+ community can’t rely on Democratic majorities and supermajorities to make political headway, we also can’t rely solely on our most staunch supporters, because while they are wonderful, there aren’t enough of them. In politics, you need fair-weather friends too. And it’ll be harder to get them on board for the Fairness Act now.
The LGBTQ+ community in Pennsylvania will have to live with the idea — as we’ve seen with recent Supreme Court decisions — that our protections could be taken away at any moment. We’ve seen it again and again: Unless something is codified into law, it can be removed. States are codifying marriage equality into law because the Supreme Court could overturn it just as they overturned Roe v. Wade. Nothing should be left to chance.
Along with getting the Fairness Act passed, we need to continue to work locally to get as many municipalities to pass nondiscrimination legislation as possible. Because while the new PHRA protections are helpful, they may not weather the next few election cycles. While it’s nice to have protections through regulations or through judicial decisions, we can’t forget to do the grassroots political work of building relationships and getting people on our side. In the long run, it’s a much better payoff.