PHRC Decides to Treat Discrimination Based on Sexual Orientation as Unlawful

On August 2, 2018, the Pennsylvania Human Relations Commission (Commission) issued a new Guidance on Discrimination on the Basis of Sex (Guidance) in which it stated that, for enforcement purposes under the Pennsylvania Human Relations Act (PHRA), it will treat discrimination on the basis of sexual orientation, transgender identity, gender identity, and gender expression as prohibited discrimination on the basis of sex.

The Commission explained that the Guidance "is neither an adjudication nor a regulation. There is no intent on the part of the Commission to give this Guidance that type of binding force or effect." Instead, the Guidance "simply indicates the manner in which the Commission intends to exercise its administrative discretion in accepting complaints, conducting investigations, and adjudicating cases, unless it is convinced otherwise during the course of a specific proceeding."^₁

Questions have arisen whether sex discrimination under the PHRA includes discrimination on the basis of sexual orientation, transgender identity, gender transition, gender identity and gender expression. The Guidance came as a result of over 8,000 public comments from individuals and organizations in response to the Commission’s document posted on its website in April 2017 entitled, "Guidance Concerning Protections for Lesbian, Gay, Bisexual and Transgender Individuals in the PHRA."

In the Guidance, the Commission clarified its stance, stating that, "[t]he prohibition contained in the PHRA and related case law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected class, prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression." The Commission defined each of these terms as follows:

Sex Assigned at Birth: The assignment and classification of individuals at birth, including, but not limited to male, female, or intersex and the related physical differences between the sexes, such as pregnancy.

Sexual Orientation: An inherent or immutable enduring emotional, romantic, or sexual attraction to other people, including, but not limited to: heterosexual, homosexual and bisexual.

Gender Identity: One’s innermost concept of self as male, female, a blend of both or neither. How individuals perceive themselves and what they call themselves. One’s gender identity can be the same or different from their sex assigned at birth.

Gender Expression: External appearance of one’s gender identity, usually expressed through behavior, clothing, haircut or voice, and which may or may not conform to socially defined behaviors and characteristics typically associated with being either masculine or feminine.

Gender Transition: The process by which some people strive to more closely align their internal knowledge of gender with its outward appearance. Some people socially transition, whereby they might begin dressing, using names and pronouns and/or be socially recognized as another gender. Others undergo physical transitions in which they modify their bodies through medical interventions.

Transgender: An umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex they were assigned at birth. Being transgender does not imply any specific sexual orientation.

While the debate in the federal courts continues over whether Title VII prohibits discrimination on the basis of sexual orientation, the Commission has now made clear that it generally intends to use a broad definition of the term "sex" for enforcement purposes. Pennsylvania employers therefore should consider expanding their policies and training to address this enhanced interpretation of the prohibition on sex discrimination.