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LGBTQ+ Equality

Cr Lgbtq Equality Lg

The Pennsylvania Office of Attorney General’s Civil Rights Enforcement Section is committed to safeguarding the fundamental liberties of lesbian, gay, bisexual, transgender, and queer/questioning individuals (LGBTQ+), and safeguarding their right to equal protection under the law. Even as public attitudes and legal protections have increasingly embraced LGBTQ+ people in recent years, much work remains to be done. Hate crimes against the LGBTQ+ community remain alarmingly high, according to FBI data. And discrimination against LGBTQ+ persons in employment, housing, public accommodations (generally meaning facilities open to the public), education, and other settings is still all too common. Statutory legal rights for LGBTQ+ persons must be protected, and strengthened where necessary.

Legal protections for LGBTQ+ persons are still evolving and are not consistent across the country or the state. The U.S. Supreme Court recently held in the employment context (Title VII) that the federal prohibition against sex discrimination necessarily includes a prohibition against discrimination against discrimination because of a person’s sexual orientation or gender identity. Under state civil law, the Pennsylvania Human Relations Commission has issued guidance stating that it will accept complaints of LGBTQ+ discrimination as complaints of discrimination on the basis of sex. The Civil Rights Enforcement Section likewise will accept and consider such complaints. As for criminal law, the federal statute against hate crimes explicitly covers crimes motivated by the victim’s sexual orientation or gender identity, but Pennsylvania’s criminal statute against Ethnic Intimidation does not yet cover sexual orientation or gender identity.

LGBTQ+ rights in under federal law are still developing. Some federal protections are clear, while others remain unsettled.

Constitutional Liberty and Equality – the Supreme Court has held that the government may not deny gay and lesbian persons fundamental rights, or equal rights, including the right to marry.

  • Example: When a spouse in a same-sex marriage dies, the other spouse may inherit their estate tax-free under Pennsylvania law in the same way that any other surviving spouse would.

Federal Hate Crime Law – the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, 18 U.S.C. § 249, is the first statute allowing federal criminal prosecution of hate crimes motivated by the victim’s actual or perceived sexual orientation or gender identity. Investigations and prosecutions are conducted by the U.S. Department of Justice (FBI; U.S. Attorney’s Office; and/or Civil Rights Division).

  • Example: A group of friends encounters a gay couple while out drinking one night. One of the group members yells a gay slur at the couple and a fight ensues. Under the federal hate crimes law, the individuals involved can be charged with a hate crime. (Under Pennsylvania law, the individuals involved in the fight can be charged with assault, but Pennsylvania’s Ethnic Intimidation statute does not cover sex, sexual orientation, or gender identity.)

Employment by Federal Contractors – a federal executive order, E.O. 11246, prohibits federal contractors and subcontractors from discriminating against applicants and employees on the basis of sexual orientation or gender identity (among other bases). This executive order is enforced by the U.S. Department Labor’s Office of Federal Contract Compliance Programs.

Sex-based discrimination is prohibited in employment (Title VII), and the U.S. Supreme Court has held in the employment context (Title VII) that the prohibition against sex discrimination necessarily includes a prohibition against discrimination against discrimination because of a person’s sexual orientation or gender identity.  Courts will next consider whether to extend this ruling to other contexts under federal law, such as education (Title IX), and housing (under the Fair Housing Act).

  • Example: A married lesbian woman working for a large company is told that she will not be promoted to a public-facing manager position, despite excellent performance evaluations, because she is “not feminine enough” (she does not wear make-up or jewelry) and because of her “immoral marriage.” The woman will likely be able to make a successful claim under Title VII for sex-based discrimination because discrimination against a person because they are gay or lesbian or transgender is necessarily sex-based discrimination. (Even if the complainant in this example had not been lesbian, it was still illegal to discriminate against her for not conforming to the company’s stereotypes for women.)

Pennsylvania’s Ethnic Intimidation Statute – in Pennsylvania, what is commonly referred to as “hate crime” is covered by Pennsylvania’s Crimes Code as Ethnic Intimidation (18 Pa. C.S.A. § 2710). When a person commits certain criminal offenses, and the crime is motivated in whole or in part by malicious intent toward the race, color, religion, or national origin of another person, it is a separate criminal offense in violation of Pennsylvania’s ethnic intimidation statute. However, sex, sexual orientation, and gender identity currently are not covered.

  • Example: A group of friends encounters an interracial gay couple while out drinking one night. One of the group members yells racist and homophobic slurs at the couple and a fight ensues. Under Pennsylvania law, the individuals involved in the fight can be charged with not only assault, but also with ethnic intimidation because the assault was in part racially motivated. (The anti-gay motivation for the crime would not be covered by Pennsylvania’s ethnic intimidation law.)

The Pennsylvania Human Relations Act (PHRA) and the Pennsylvania Fair Education Opportunities Act (PFEOA)The PHRA prohibits discrimination in access to employment, public accommodations (including education), as well as housing, commercial property and related lending, based on sex, among other grounds. The PFEOA prohibits sex discrimination in post-secondary education. The Pennsylvania Human Relations Commission has issued non-binding guidance stating that it will accept, investigate, and adjudicate complaints of discrimination based on sexual orientation, transgender identity, gender transition, gender identity, and gender expression as complaints of sex discrimination. This position has not yet been affirmed by Pennsylvania courts.

  • Example: A transgender man submits a rental application for a private apartment. He has a good credit score, sufficient income, and provides several positive references. Despite receiving no other applications, the landlord denies the man’s application, stating that he would make the neighbors uncomfortable. The PHRC considers the PHRA’s prohibition on sex-based discrimination to include transgender people, and thus would accept and investigate a complaint like this. The Civil Rights Enforcement Section likewise will accept and consider such complaints.

Governor’s Executive Orders – Pennsylvania Governor Tom Wolf has issued two executive orders protecting persons from discrimination based on sexual orientation, gender identity or expression. One prohibits LGBTQ+ discrimination in state government employment (Executive Order: 2016-04). The other prohibits LGBTQ+ discrimination in the award, selection, and performance of any state contracts or grants (Executive Order: 2016-05).

  • Example: A bisexual person who works for the Pennsylvania Department of Labor and Industry begins working with a new manager who expresses anti-LGBTQ+ sentiments and later fires them for performance reasons that are made up. The bisexual person is protected from discrimination, whether they are a full-time permanent employee of the Commonwealth, or whether they work for a contractor.

Over 50 municipalities have passed ordinances prohibiting discrimination against LGBTQ+ individuals, including in larger cities such as Philadelphia, Pittsburgh, Allentown, Erie, and Reading. These local laws offer protection to about 1/3 of Pennsylvania’s population in access to housing, employment, and public accommodations.

  • Example: A transgender woman in Pittsburgh goes to a bar, but is refused entrance by a bouncer who is rude about her appearance and the gender on her ID, telling her only “real” women are allowed. The transgender woman can bring a claim under Pittsburgh’s non-discrimination law against the bar, which is a public accommodation.

Nothing on this page should be construed as legal advice.