Memorandum on Nondiscrimination
Strategy in Pennsylvania
June 22, 2016
To:

PA Competes and Allies

From: American Unity Fund
Equality Pennsylvania
Freedom for All Americans
Gill Action
Log Cabin Republicans
National Center for Transgender Equality
Transgender People of Color Coalition
Re:

Response to ACLU of Pennsylvania and the ACLU National LGBT Project on
Nondiscrimination Strategy in Pennsylvania

We write to respond to a memorandum dated June 10, 2016, from the ACLU of
Pennsylvania and the ACLU National LGBT Project (together, “ACLU”). We agree with
the ACLU that the ultimate objective in Pennsylvania is comprehensive protection from
discrimination based on sexual orientation and gender identity in employment, housing,
and public accommodations. We have long supported and worked for legislation that
would provide such comprehensive protection.
However, we disagree with the ACLU that LGBT people have “little to gain and
much to lose” in Pennsylvania by passing bills that deal with housing and employment,
even if a separate public accommodations bill cannot pass at this time. In this
memorandum, we explain why it’s critical to make some progress on employment and/or
housing now rather than waiting to make more complete progress at an uncertain date in
the future. Each of the four points below corresponds to the four main points made in the
ACLU memorandum of June 10.
1.

Existing federal protection for LGBT people in employment and housing is
inadequate, requiring state legislative action.

The ACLU’s position rests in part on a lack of urgency about employment and
housing protections in Pennsylvania because the group believes that such protections are
already provided under the “sex” discrimination provisions of Title VII and the Fair
Housing Act. This reliance on federal law is misplaced. State statutory housing and
employment protection for LGBT Pennsylvanians is critically necessary and the current
state of federal law is not an adequate substitute for it.
On employment, the ACLU points to two rulings by the Equal Employment
Opportunity Commission (EEOC) that interpret existing federal protection against “sex
1

 discrimination” to include gender identity and sexual orientation. We support this “sex
discrimination” interpretation of Title VII (and of other state and federal statutes) as a
step toward real nationwide protection. But EEOC guidance is only a first step.
To begin, interpretations of federal law by the EEOC are not binding on courts. In
fact, while four Circuits have indeed held on the merits that sex discrimination includes
gender-identity discrimination, the other eight have not. The Third Circuit, which governs
Pennsylvania, has not squarely addressed the issue of gender-identity discrimination
under Title VII.
None of the twelve circuits have yet held that sex discrimination includes sexualorientation discrimination under federal employment law. Even more concerning, nine of
the twelve, including the Third Circuit, have explicitly held or strongly indicated in dicta
that Title VII does not prohibit sexual-orientation discrimination.1 This creates a difficult
barrier in the federal courts.
Thus, while the day may yet come, the federal circuit courts have not reached a
consensus supporting the EEOC’s views on sexual orientation or gender identity.
Furthermore, even the EEOC’s own view may be reversed by future commissioners
chosen by a President who opposes LGBT equality. We are likely years away from any
definitive decision in the federal courts, including by the Supreme Court, on whether gay
and transgender people are protected under existing federal employment law.
In housing, federal protection from sexual-orientation and gender-identity
discrimination is even less secure. The Department of Housing and Urban Development
notes on its website that neither sexual orientation nor gender identity are specifically
protected but that a gay or transgender person’s experience of housing discrimination
“may still be covered by the Fair Housing Act.”2 The same website refers potential LGBT
complainants to state agencies in states that specifically prohibit discrimination based on
sexual orientation and/or gender identity. Pennsylvania is not on that list.
For now the federal case law on housing remains mixed and unsettled, with at
least three district courts holding that the FHA does not apply to sexual-orientation
discrimination.3
We hope, and believe, that courts will eventually agree that gay and transgender
people are covered by existing federal law on housing and employment, but we are not
there yet.
1

The other circuits are: the First, Second, Fourth, Fifth, Seventh, Eighth, Ninth, and Tenth.
See
http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/LGBT_Housing_Disc
rimination (emphasis added). HUD has determined that discrimination based on sexual orientation and
gender identity in providing homeless shelters is prohibited. https://www.hudexchange.info/news/finalrule-on-equal-access-to-housing-published/.
3
Neithamer v. Brenneman Property Services, Inc., 81 F. Supp. 2d 1, 4 (D.D.C. 1999); accord Swinton v.
Fazekas, No. 06-CV-6139T (MAT), 2008 WL 723914, at 5 (W.D.N.Y. Mar. 14, 2008) and Ordelli v. Mark
Farrell & Assocations, No. 3:12-cv-1791, 2013 WL 1100811, at 2 (D. Ore. Mar. 15, 2013).
2

2

 It is because of the uncertainty and insecurity of federal protection that the major
national LGBT-rights organizations, including the ACLU, are supporting federal
legislation that would specifically include protection for LGBT people in employment
and housing. They are not counting on the EEOC or the federal courts to achieve the
goal of nondiscrimination. They accept the view that protection, to be real and lasting,
must be specifically written into the law. For these very reasons, Pennsylvania too must
add sexual orientation and gender identity to its statutes to make sure its citizens are
protected. Pennsylvanians should not have to wait for what may be years for federal
courts or Congress to protect them when their own legislature can do so now.
2.

The passage of employment and housing protection will not likely threaten
pro-LGBT judicial or administrative action on public accommodations, and
Pennsylvania lawmakers should not await uncertain action from state courts
or executive agencies.

The ACLU argues that states may advance nondiscrimination through state
agency interpretations of existing state law. The ACLU also argues that Pennsylvania
could follow this path through state court litigation or executive action. “We are currently
researching an administrative and legal strategy” for Pennsylvania, the memorandum
states. We commend the ACLU for working to develop such a strategy. But
Pennsylvanians should not have to wait for what is likely to be several years to prevail in
a state court or agency.4
But the ACLU suggests that winning on employment and housing in the state
legislature may jeopardize its future plans for winning more comprehensively through
state courts or agencies. The ACLU argues that “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 unfavorable interpretation is not likely to prevail. To the extent courts
evaluate legislative intent in statutory construction, they properly look to the intent of the
enacting legislature—not to the action or inaction of a subsequent legislature that had
nothing to do with passing the original statute. In this case, the dominant and traditional
method of statutory construction would mean looking to the intent of the legislature that
originally banned sex discrimination, not to the current legislature that merely adds the
words “gender identity” and “sexual orientation” to some, but not all, provisions of the
original law. It is true that a court could eschew the dominant approach, as the ACLU
fears, but such a decision would be subject to appellate review.

4

The ACLU adds that the Pennsylvania Human Relations Commission is already “accepting” claims of
sexual orientation and gender identity discrimination under a sex discrimination theory. AUF directly
contacted the Commission, which confirmed only that they were accepting gender-identity claims. But the
office would not say whether they would, in fact, determine that gender-identity discrimination was
actionable. There are also no state court decisions agreeing that such claims are valid under existing law.

3

 Meanwhile, future litigation in Pennsylvania urging a sex-discrimination theory to
protect LGBT people would suffer its own uncertainties. It is already vulnerable to the
argument that the Fairness Act has been introduced and failed to pass for many years.
State courts and agencies may conclude that the state legislature never intended to protect
gay and transgender people from discrimination, which is why they blocked passage of
the Fairness Act.5 While we think that would be the wrong interpretive conclusion from a
failure to pass a comprehensive bill, a court could reach it.
The more important point, however, is what type of protections are LGBT people
getting when they come in the form of state administrative rulings, rules, and court
decisions? We believe that clear statutory language is far superior when it comes to
whether LGBT people will continue to experience discrimination. Clear statutory
language is more likely to be followed by covered entities simply because they are more
likely to be aware of it than of interpretive rulings or rules.
Furthermore, much of the power and value of discrimination law comes not when
an individual sues or files a complaint after the fact, but instead when entities know
something is illegal and decide to not do it in the first place, very often adopting internal
polices prohibiting the practice. This helps prevent discrimination in the first place.
before it happens. On the other hand, rulings and rules interpreting statutes are typically
only known by, and followed by, the types of large entities who employ lawyers and
other personnel to stay on top of the latest regulatory trends.
We believe the value added by clear statutory protections in housing and
employment is worth the slightly increased but small risk of being less likely to win a sex
discrimination case in the public accommodations context.
3.

Protecting LGBT people in employment and housing would not mean giving
up on public accommodations.

We agree with the ACLU that protecting lesbian, gay, bisexual and especially
transgender people from discrimination in public accommodations is very important. The
outrageous demagoguery surrounding the use of restrooms and other single-sex spaces by
transgender people has been infuriating and harmful. There is probably no current issue
in public policy on which perceptions about common sense and actual evidence are
farther apart.
But as the ACLU itself has recognized on this very issue of separating
employment/housing from public accommodations protections, making progress often
necessitates compromise. In 2015, Utah legislators introduced a bill that protected gay
and transgender people from discrimination in employment and housing only. With
opponents citing concerns about transgender people in bathrooms and other single-sex
spaces, the bill would not have passed if public accommodations protection had been
included. Nevertheless, like all of the major national LGBT-rights groups, the ACLU
5

In fact, Congress’s failure to pass pending protection from anti-gay discrimination was erroneously used
by some federal courts to rule against gay plaintiffs in Title VII cases.

4

 enthusiastically backed the bill, calling the protections in employment and housing “historic,”
“much-needed,” and “essential.” The group’s Utah chapter “strongly” supported the bill and
encouraged the state legislature to pass it.6 The legislature did so with an overwhelming
affirmative vote.7
We recognize that Utah was unique, and not a model for other states, in terms of its
extraordinary exemption of all religious organizations from compliance with civil rights laws.
But Utah did show that even a very conservative state can make significant progress for gay
and transgender people. It is our understanding that people in Utah are generally pleased with
their new, albeit incomplete, protections. We do not understand why Pennsylvania is different
from Utah when it comes to political compromise that falls short of the comprehensive
protection we all ultimately desire.
Holding out for a comprehensive bill in Pennsylvania that won’t pass while we wait
for uncertain judicial action at some unknown date does nothing to defend the rights of
transgender people in any area of law. Pennsylvania legislators have a chance to make
historic, much-needed, and essential progress. It would be an historic error to pass up that
opportunity.
It is also critical to note that an important consequence of passing protection in housing
and employment will be to enlist new allies and to empower LGBT people themselves for the
larger battle against discrimination. For the first time, many legislators in Pennsylvania will
vote “yes” on legislation protecting LGBT people. That shatters a ceiling. It shows that we can
protect LGBT people from discrimination without sacrificing fundamental religious liberties
or encroaching on the legitimate interests of others. And it empowers LGBT people
themselves, protected for the first time in their homes and in their jobs, to press for full legal
rights. The recent achievement of comprehensive protection in Massachusetts was the
capstone on an effort that took disciplined and measured effort.
4.

The legislative model is the most viable path that will securely protect LGBT
Pennsylvanians from discrimination.

Like the ACLU, we want comprehensive protection from discrimination for LGBT
people. At the moment, there is no certain protection in any of these areas. The question is,
how do we get from where we are to where we would like to be?
An obvious path is through the state legislature. We believe there is a good chance
to make historic progress on employment and housing in the very near future,
6

See https://www.aclu.org/news/aclu-utah-lauds-bill-providing-protections-gay-and-transgender-utahns
(March 4, 2015).
7
On March 19, 2015, after an outcry from some LGBT-rights activists over expansive protections for religious
liberty in the new Utah law, a senior staff attorney for the ACLU’s LGBT and HIV Project called the legislation
an “important achievement” while also writing that it should not be a model for future bills because of its broad
exemption (pre-existing in Utah law and applicable to all classes) for all religious organizations. The writer also
mentioned the lack of protection in public accommodations in the new Utah
law, but the thrust of the concern was religious exemptions. https://www.aclu.org/blog/why-utah-noutopia-lgbt-equality-despite-progress. The Pennsylvania bills prohibiting employment and housing
discrimination contain no such broad carve-out for religious organizations.

5

 possibly in this session. There is much less chance of making any progress legislatively
in the near future if we demand passage of protection in every area at one time. This is
the painful lesson from thirteen years of legislative advocacy in Pennsylvania that have
produced no protection. At this time, our choice is not between making incomplete
progress or making complete progress. It is between making incomplete progress or no
progress at all.
While the ACLU “recognize[s] the importance of achieving explicit protections”
via legislation, an all-or-nothing strategy is not a viable path to victory in the
Pennsylvania legislature. A real legislative strategy requires making hard choices when
the day of reckoning comes.
The ACLU says that we have “alternative paths through state and federal
litigation and administrative advocacy.” These paths, as we have noted, are poorly lit and
have no clear endpoint in sight. However much we may support litigation for LGBT
rights, and however much we may accept the legal theories that underlie that litigation,
we cannot be certain that litigation alone will work. And, even if litigation is successful,
it will not be as valuable to LGBT people as clear statutory language.
The good news is that state lawmakers do not have to make a choice between a
legislative path and a judicial or administrative one. In the LGBT rights movement, as in
other civil-rights movements, the lesson of history is that we should be pressing on all
fronts, that the various forums of public policy debate are not hermetically sealed from
one another, and that progress in one arena can fuel progress in others. Let’s make that
progress in Pennsylvania where, and how, we can.

6