Memorandum
To:
Stakeholders and Interested Parties
From: The ACLU of Pennsylvania and the ACLU National LGBT Project
Re:
Securing nondiscrimination protections for LGBT people in Pennsylvania
Date: June 10, 2016
The ACLU strongly supports the passage of comprehensive nondiscrimination
protections for the LGBT community in the contexts of employment, housing, and public
accommodations. However, it has come to our attention that a group of Pennsylvania
legislators intend to introduce and pass legislation to protect LGBT people from
discrimination in employment and housing only. This legislation would not include public
accommodations, which has been a part of previously filed nondiscrimination legislation that
we have supported. The ACLU believes that LGBT Pennsylvanians have little to gain and
much to lose through this approach, and here is why:
1.
The LGBT community is already protected against discrimination in employment
and housing under existing federal sex discrimination laws; however federal
protections do not include public accommodations.
If a gay or transgender person is fired for being who they are in Pennsylvania today,
they can file a complaint with the U.S. Equal Employment Opportunity Commission
(EEOC). According to the EEOC’s website, “EEOC resolved a total of 1,135 LGBT charges in FY
2015, including through voluntary agreements providing approximately $3.3 million in
monetary relief for workers and achieving changes in employer policies so that discrimination
would not recur.” This is the result of significant advances in federal interpretations of sex
discrimination to include discrimination on the basis of sexual orientation and gender
identity. These efforts gained a tailwind with the U.S. Supreme Court’s decision in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that Title VII prohibits not only
discrimination because of sex, but also discrimination resulting from sex stereotypes. Id. at
251. Discrimination based on a person’s sexual orientation or gender identity often is directly
related to the sex-based stereotypes and preferences of employers.
Following Price Waterhouse, and the EEOC’s landmark decisions in Macy v. Holder,
EEOC Doc. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012) (gender identity), and
Baldwin v. Foxx, EEOC Doc. 0120133080, 2015 WL 4397641 (EEOC July 15, 2015) (sexual
orientation), there is now an emerging consensus that discrimination against gay and
transgender people is a prohibited form of sex discrimination when it is based on sex
stereotypes. It is easy to see why efforts to secure anti-discrimination protections for
transgender people under existing prohibitions against sex discrimination, including sexbased stereotypes, have succeeded. “A person is defined as transgender precisely because of
the perception that his or her behavior transgresses gender stereotypes.” Glenn v. Brumby,
663 F.3d 1312, 1316 (11th Cir. 2011). Similarly, district courts and the EEOC have recognized
that the very quality that defines lesbians and gay men is nonconformity with the sex
stereotype that women should date only men and men should date only women.

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 Similarly, if a gay or transgender person is denied housing for being who they are in
Pennsylvania today, they can file a complaint with their local U.S. Department of Housing and
Urban Development (HUD) office or file a lawsuit in federal court under the federal Fair
Housing Act, which prohibits discrimination in housing on the basis of race or color, national
origin, religion, sex, familial status, or disability. Every legal remedy that is available to those
discriminated against based on these characteristics can also be pursued by LGBT people for
discrimination on the basis of sex.
Notably, and important to this context, federal protections on the basis of sex do not
ban discrimination in public accommodations, and so there are currently no federal remedies
available for gay and transgender people who experience discrimination in public
accommodations, including in public restrooms, gym locker rooms, and wedding-related
services.
2.
While passing explicit state-level protections is important, state-level
nondiscrimination protections may be winnable through administrative and legal
channels by expanding agency and court understandings of sex discrimination in the
PHRA. Passing a nondiscrimination bill with only housing and employment could
jeopardize this strategy by wrongly suggesting that the legislature intended to exclude
public accommodations protections from state law.
States like New York and Virginia have recently advanced nondiscrimination
protections for the LGBT community through administrative interpretations of existing state
laws on sex discrimination. Similar to the federal court strategy, this strategy relies upon an
understanding of sex discrimination to include sexual orientation and gender identity. We
believe Pennsylvania could follow suit, both through executive action and by securing
favorable state court decisions. We are currently researching and developing an
administrative and legal strategy in Pennsylvania similar to the one in New York and Virginia.
Notably, the Pennsylvania Human Relations Commission has been accepting claims of
discrimination based on sexual orientation and gender identity under a sex discrimination
theory since at least May 2015.
If legislation is passed that explicitly prohibits discrimination on the basis of sexual
orientation and gender identity in employment and housing, but does not include public
accommodations, that could suggest to the courts that this omission was intentional. One of
the factors that courts would consider in assessing whether “sex” discrimination protections
in the PHRA extend to LGBT people is what the legislature intended. As a result, explicitly
adding LGBT protections only to housing and employment might wrongly lead courts to
conclude that the existing sex discrimination protections do not apply to LGBT people. This
would jeopardize our ability to gain protections against discrimination in public
accommodations for gay or transgender Pennsylvanians under existing sex discrimination
law.
3.
Passing an employment and housing-only bill would send the wrong message to
lawmakers, the LGBT community, and the public, especially regarding the importance
of ending discrimination against transgender people in public spaces, including
restrooms and locker rooms.

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 For thirteen years, Pennsylvania lawmakers have introduced comprehensive
nondiscrimination bills that would protect the LGBT community against discrimination in
employment, housing, and public accommodations. It will not be lost on many in the advocacy
and activist communities, as well as the LGBT-media, that dropping public accommodations
now, in the midst of the current in-state and national conversation surrounding transgender
people and restrooms/locker rooms, is compromising on critical protections because they are
controversial. We cannot ignore the message it sends to make this compromise just months
after our opposition launched their ‘Defend My Privacy’ campaign, complete with ‘No Men in
Women’s Restrooms’ billboards along the interstate near Harrisburg. At the ACLU, we feel
strongly that now is the time to vociferously defend the right of transgender people to use sexsegregated facilities in accordance with their gender identity.
Similarly, passing a bill with a limited scope sends a message that public
accommodations for LGBT people is politically toxic, and perhaps most troubling, that LGBT
advocates are willing to compromise away public accommodations protections that are
perhaps most acutely needed by the transgender community. This could cause a dominoeffect of similar bills advancing in other states modeled after the ‘Pennsylvania
Compromise’. Similarly, this could negatively impact federal strategies to pass explicit
protections for LGBT people in employment, housing, and public accommodations.
4.
Alternate, viable paths exist to secure nondiscrimination protections for LGBT
Pennsylvanians without having to make a difficult legislative compromise.
While we recognize the importance of achieving explicit protections from
discrimination, we see alternative paths through state and federal litigation and
administrative advocacy. These paths to securing and clarifying nondiscrimination
protections include ongoing federal court advocacy to secure favorable interpretations of sex
discrimination to encompass gender identity and sexual orientation in the Third Circuit Court
of Appeals. Recently, the EEOC has filed a lawsuit against Scott Medical Health Center on
behalf of a gay Pennsylvanian who experienced workplace discrimination. This case could be
considered by the Third Circuit by the end of this year, potentially resulting in additional case
law that clarifies that discrimination on the basis of sexual orientation and gender identity is
unlawful sex discrimination.
Additionally, we see a parallel state government track to securing favorable
interpretations of sex discrimination. By building on the existing interpretations of the PHRC
to secure favorable interpretations from key government actors, such as the Governor and the
Attorney General, as well as favorable interpretations from state courts, we would be able to
secure for the LGBT community every protection available to other protected characteristics
under Pennsylvania’s Civil Rights laws.
Meanwhile, we believe that advocacy organizations, including the ACLU, should
continue to build from our past work to educate the public and lawmakers on who LGBT
people are and why discrimination against LGBT people is inconsistent with the values of the
state of Pennsylvania. We should also focus specifically on education about who transgender
people are, as well as why they must be able to use facilities that match who they are. This is
the important education work that will create a climate for favorable administrative and legal
developments, and will continue building a political climate more favorable for advancing
LGBT equality and guarding against anti-LGBT backlash and the types of regressive legislation
we have seen this past year in dozens of states.
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