The U.S. Supreme Court in Washington D.C. (Flickr Commons)
Reading Tuesday’s coverage of oral arguments before the U.S. Supreme Court on whether federal anti-discrimination laws extend to LBGTQ Americans, it was hard to escape the enormity of the moment.
The nine justices — including two Trump administration nominees, Justices Brett M. Kavanaugh and Neil M. Gorsuch — were considering more than an arcane matter of constitutional law. The fundamental equality and dignity of tens of millions of Americans effectively rests in their hands.
According to the Washington Post, the majority-conservative high court appeared divided and at odds over whether matters that could cause, in Gorsuch’s words, “massive social upheaval” were better decided by the legislative branch, and not the judiciary.
Thanks for bringing that up, Justice Gorsuch.
Because while it could be months before the Supreme Court renders its verdict in the case, there’s something that the Pennsylvania General Assembly can do right now — pass a long-delayed, state-level anti-discrimination law for LGBTQ Pennsylvanians.
As the Capital-Star’s Sarah Anne Hughes reported Tuesday, 21 states and Washington, D.C. (just shy of half of all states) prohibit employment and housing discrimination against people based on their sexual orientation and gender identity. Pennsylvania — which prides itself on its legacy of William Penn’s “holy experiment” providing safe refuge for persecuted minorities — does not extend such protections to its own LGBTQ citizens.
A bill, backed by House Democrats, is now before the chamber’s State Government Committee. The panel’s new chairman, Rep. Garth Everett, R-Lycoming, unlike his homophobic predecessor, has said he’s not opposed to considering the legislation.
But not being opposed to the legislation is not the same thing as sending the bill to the full House for a vote, where, if lawmakers follow public opinion, rather than succumb to tunnel vision, it would likely pass.
A 2018 poll by the Public Religion Research Institute, for instance, found that more than seven in 10 Americans supported laws protecting the LGBTQ community against housing, employment, and public accommodation discrimination. That support was consistent across party lines, with nearly six in 10 Republicans in support of an anti-discrimination measure then before the Virginia Legislature.
In a statement released by his office on Tuesday, Gov. Tom Wolf called on the Republican-controlled General Assembly to pass an anti-discrimination measure for LGBTQ Pennsylvanians, arguing that “for too long to our collective detriment, we kept some of our best, most talented individuals out of the workforce because of nationality, religion, race or gender.”
“When we began protecting the rights of these individuals to work, we all benefitted. Now it’s time to ensure our hardworking, talented LGBTQ colleagues have the same rights to be evaluated based on their abilities to perform their jobs,” he said.
Legislative Republicans — who have put so much emphasis on cutting taxes and regulation, encouraging the growth of the natural gas industry, and pursuing workforce development measures — have remained remarkably tin-eared on this fundamental civil rights and quality of life issue.
Such large employers as Amazon and Google have not been shy about putting their corporate muscle behind anti-discrimination efforts. And a state’s policies can visibly affect whether companies will choose to locate there. So as a matter of dollars and cents alone, Pennsylvania is at a competitive disadvantage.
But more than that, it’s just the moral thing to do. Just as someone has no say over what race or ethnic group they are at birth, we now know that biological factors drive sexual orientation and gender identity. So we should not — we must not — tolerate discriminate based on those latter factors.
“Numerous studies have established that sex is not just male or female,” Indiana University microbiologist Bill Sullivan wrote in an op-ed the Capital-Star published in September. “Rather, it is a continuum that emerges from a person’s genetic makeup. Nonetheless, misconceptions persist that same-sex attraction is a choice that warrants condemnation or conversion, and leads to discrimination and persecution.”
Recognizing this evolving understanding, the Wolf administration has announced it will offer gender-neutral licenses to Pennsylvanians who want one. Unsurprisingly, a state lawmaker has stepped up to oppose the measure.
As high as the stakes are in the Supreme Court and in the matter of gender-neutral licenses — and they are undoubtedly determinative — it’s also hard not to feel, at least in some small way, that the forces opposed to these measures are fighting a rearguard action.
When I look at my daughter’s generation, young people who don’t bat an eye when a friend announces that they’re gender-queer, or another comes out as bisexual or gay, I am reminded that the moral arc of the universe, despite best efforts by some among us to the contrary, continues to bend toward justice.
We’re now four years past the high court’s ruling legalizing same-sex marriage. And while it’s true that was a different court, with different members, it was encouraging to read that Chief Justice John G. Roberts used the pronoun “they” to refer to a gender-neutral person.
The federal government is already halfway there. As the Post reports, the Equality Opportunity Employment Commission ruled in 2015 that gay and transgender individuals were protected under the law.
With that standard in place, Pennsylvania lawmakers need not wait to see what the high court is going to do. The answer is already before them: Pass the protections. Put Pennsylvania, home of William Penn’s holy experiment, in the vanguard where it belongs.
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