HARRISBURG, Pa. – A state panel on Thursday narrowly approved new definitions of sex, religious creed and race in Pennsylvania's anti-discrimination regulations, with three members appointed by Democrats in favor and two Republican appointees voting no.
The Independent Regulatory Review Commission signed off on the set of definitions that concern the types of employment, housing, education and public accommodations discrimination complaints that can be brought before the state Human Relations Commission.
Supporters said the definitions will provide greater clarity to people who bring such complaints as well as the employers, organizations and others who must defend against them, while opponents said the Legislature was better positioned to make those changes.
“It just seems to me that the Legislature has not adopted definitions over the course of numerous, numerous years,” said the regulatory panel's chairman, George Bedwick, a Democratic appointee. He called it “strong evidence that the intent” when the Human Relations Act was first adopted in the 1950s and continues to be "to allow the commission to define those terms.”
Republican appointee John Soroko said his “no” vote was based “solely and strictly” on his belief that the change in regulations was outside the Human Relations Commission's authority.
Democratic Gov. Tom Wolf said he supported the change, which is expected to take effect early next year.
“I have been clear — hate has no place in Pennsylvania,” Wolf said in a statement issued after the vote. “This includes protecting the rights of individuals facing discrimination by a school, landlord, or employer based on who they love or their gender identity.”
The move to clarify the terms “sex,” “religious creed” and “race” builds on a 2018 decision by the Human Relations Commission to start accepting complaints about LGBTQ discrimination.
The regulation defines “sex” as including pregnancy, childbirth, breastfeeding, sex assigned at birth, gender identity or expression, affectional or sexual orientation, and differences in sex development.
“Race” discrimination includes ancestry, national origin, ethnic characteristics, interracial marriages and association, traits such as hairstyles that are historically associated with race, and national origin or ancestry.
And “religious creed” covers all aspects of religious observance, practice and belief.
In a May letter to the Independent Regulatory Review Commission, state Rep. Seth Grove, R-York, argued the new definitions were in effect an end-run around the Legislature.
“The policy choice of whether Pennsylvania should extend the definition of ‘sex discrimination’ in such a manner remains just that: a policy choice,” Grove said. “As such, it is squarely and exclusively the prerogative of the General Assembly to pursue.”
Rep. Dan Frankel, D-Allegheny, a longtime proponent of LGBTQ nondiscrimination bills, said Republican opponents “have blocked every attempt that we've had on the House floor to do this. So that provides plenty of rationale to proceed on the regulatory basis.”
The Pennsylvania Catholic Conference, the public affairs arm of the state's bishops, said the proposal would hurt small businesses and religious entities and would not protect religious freedom. State law permits religious organizations to hire or employ on sex-based grounds when that is a bona fide part of the job.
Commission chair Joel Bolstein said in an interview this week that the proposal won't force religious organizations in which priests must be men to hire women, and that the state's Religious Freedom Protection Act also provides some legal protections.
A group of 11 Republican state senators also weighed in against the regulatory change, saying it “operates in contrast to the intent of the legislature, lacks prescribed statutory authority and ultimately garners our disapproval.”
The Pennsylvania Chamber of Business and Industry said it supports “the intent” of the commission's proposal and that at the group's request some changes were made, including a two-month delay on implementation.
“Generally, advancing public policy through administrative regulation, instead of codifying it in law through the legislative process, can create challenges — including potentially drastic policy swings from one administration to the next and lack of input from a broad coalition of stakeholders,” said the chamber's government affairs vice president, Alex Halper.
Although many municipalities in the state have nondiscrimination ordinances that address sexual orientation, gender identity and expression, that is not the case statewide.
In 2018 the Human Relations Commission announced it would accept and investigate such complaints as sex-based discrimination.
Although the change was announced in a news release, and it has produced largely employment-based complaints, there are indications many people were not aware of the 2018 policy change, Bolstein said.
This story has been corrected to show the vice president of the Pennsylvania Chamber of Business and Industry is Alex Halper, not Alex Harper.