When we wrote in August about the impact of the Supreme Court’s Loper-Bright decision on the various federal district court rulings invalidating the Department of Education’s 2024 Title IX regulations, we reminded readers that laws in Pennsylvania and other states still protect individuals from discrimination on the basis of their gender identity and sexual orientation, among other things. A new lawsuit filed in the Pennsylvania Commonwealth Court aims to change that. Specifically, it seeks to dismantle certain protections against LGTBQ+ discrimination for Pennsylvania students by voiding the definition of “sex” set forth in the 2023 regulations promulgated by the Pennsylvania Human Relations Commission (PHRC) at 16 Pa. Code §§ 41.201 – 41.207. Attorneys from the Thomas More Society filed the lawsuit on March 6, 2025 on behalf of two Pennsylvania school districts (South Side Area School District in Beaver County and Knoch School District in Butler County) and several Pennsylvania parents and taxpayers (including two Pennsylvania State Representatives). Both the PHRC and the Office of the Governor of the Commonwealth of Pennsylvania are named as respondents.
The regulations being challenged relate to the Pennsylvania Human Relations Act (PHRA) and the Pennsylvania Fair Educational Opportunities Act, which are laws that prevent discrimination in numerous sectors including education. Section 41.206 of the regulations addresses “[s]ex discrimination” specifically and defines “sex” to include all of the following:
- Pregnancy
- Sex assigned at birth
- Gender, including a person’s gender identity or gender expression
- Affectional or sexual orientation, including heterosexuality, bisexuality, and asexuality
- Differences of sexual development, variations of sex characteristics or other intersex characteristics.
According to a statement about the lawsuit published by the Thomas More Society,
By redefining “sex” to include fluid concepts such as gender identity, sexual orientation, and personal expression, the PHRC’s regulations erode long-standing norms that shape education, family life, and public policy, replacing biological reality with subjective interpretations. The lawsuit warns that the state’s unconstitutional regulations carry with them profound implications for the preservation of equal rights and parental authority, while threatening school policies on issues like bathrooms and athletics—placing districts in legal jeopardy.
The petition for review lodges two primary attacks on the 2023 regulations.
First, the petitioners allege that the PHRC and the Governor’s Office violated Pennsylvania’s “non-delegation doctrine” and exceeded their constitutional authority in using regulatory measures to expand the legal definition of “sex.” While the lawsuit acknowledges that the General Assembly is permitted to delegate authority to a government agency “in connection with the execution and administration of a law[,]” petitioners complain that the General Assembly has not delegated any authority to the respondents to amend the definitions of “sex” or “gender” in Pennsylvania. Rather, according to the petition, both “[l]ong before” and “[s]ince the creation of the PHRC,” the General Assembly and Pennsylvania courts “have consistently recognized that the terms ‘gender’ and ‘sex’ exclusively refer to ‘male’ and ‘female,’ ‘men’ and ‘women,’ and ‘boys’ and ‘girls’ as determined by the individual’s biological chromosomes and genitalia possessed at birth.” The petitioners argue that the PHRC regulations contravene such longstanding definitions because, under the 2023 rules, an “individual’s biological chromosomes and genitalia are irrelevant to determining an individual’s sex[.]”
The petitioners also contend that the definition of “sex” found in the 2023 regulations violates Article I, Section 28 of the Pennsylvania Constitution and directly contradicts established precedent of the Pennsylvania Supreme Court’s 2024 decision in Allegheny Reproductive Health Center v. Pa. Dep’t of Human Services, which, according to the lawsuit,“clearly and without reservation” defines “sex” using a binary “male or female” scheme.
The petition further alleges that there is a tension between the PHRC rules and provisions of the Commonwealth’s Public School Code that require school boards to distinguish between males and females. The petitioners claim, “[u]nder the PHRC regulations, a Board of School Directors is engaged in prohibited discrimination if the school district complies with…the Public School Code and separates its bathroom facilities into separate male and female bathroom[s]” or “separates and reports its interscholastic athletic program as male and female programs.”
While the PHRC regulations are not the only source that Pennsylvania schools have invoked to protect LGBTQ+ students, the regulations have certainly become an important piece of that puzzle, especially following the Kansas District Court’s issuance of a nationwide injunction on enforcement of the 2024 Title regulations. This fact was not lost on the PHRC, which issued a statement earlier this year expressly distancing itself from federal developments: “Regardless of what happens nationally, Pennsylvanians can be assured that under Pennsylvanian laws, they are protected. Pennsylvania was founded on the principles of tolerance and peace. It will remain a welcoming place for people of all backgrounds and lifestyles.” If the Commonwealth Court sides with the petitioners and agrees to strike the PHRC regulations, the protections for LGBTQ+ students at all levels in Pennsylvania will be whittled down even further. A scheduling order in the matter has yet to be issued.
