Despite bipartisan support, it’s unclear what’s holding up the Fairness Act in Harrisburg

In at least 21 states, employers, landlords and other business owners are barred by law from discriminating against people based on their sexual orientation and gender identity. But such protections are essentially nonexistent in most parts of Pennsylvania, meaning LGBTQ Pennsylvanians can – and do – face discrimination when it comes to applying for housing, using public restrooms and receiving services as basic as haircuts. 

That’s not to say such protections don’t exist in certain parts of the state. Municipalities ranging from Philadelphia to Pittsburgh, Abington to Allentown, and Erie to Easton have all implemented their own local policies that protect LGBTQ Pennsylvanians from facing discrimination when it comes to housing, employment and other public accommodations. 

But the result is a patchwork of local nondiscrimination ordinances that leaves members of the LGBTQ community protected in some parts of the state and subject to harassment and discrimination in others. 

“We continue to be the only state in the Northeast that doesn’t have protections in statute for LGBQ&T Pennsylvanians,” said Julie Zaebst, a senior policy associate for the American Civil Liberties Union of Pennsylvania. 

Zaebst noted that “dozens and dozens” of local governments have stepped in to approve their own nondiscrimination policies in light of inaction at the state level, where legislation known as the Fairness Act has not been advanced in the Pennsylvania General Assembly. 

“It’s hard to keep track of because localities continue to step in where the state is sort of falling down and they want to make sure that these protections are really explicit on paper in their localities,” Zaebst said. “At the same time in the state legislature, we have seen virtually zero movement on nondiscrimination bills to protect LGBQ&T Pennsylvanians for almost 20 years at this point.”

The Fairness Act would enshrine protections for LGBTQ Pennsylvanians in state law. Specifically, it would amend the Pennsylvania Human Relations Act – which already prohibits discrimination based on race, religion, age and national origin – by adding prohibitions for discrimination based on sex, sexual orientation and gender identity or expression.

“It’s important to me personally, but it’s also, I think, broadly important,” said state Rep. Jessica Benham, an Allegheny County Democrat who is one of the bill’s sponsors in the state House. “No one should face discrimination in health care, housing or employment because of who they are. It’s unacceptable.”

Benham, the first out LGBTQ woman elected to the General Assembly, said that statewide protections are needed to ensure that LGBTQ individuals aren’t susceptible to discrimination in parts of the state that lack protections. 

“I live in Pittsburgh, where I am protected by a local ordinance – and that is incredibly reassuring. But when I drive to Harrisburg, I pass through numerous jurisdictions where I do not have nondiscrimination protections,” Benham told City & State. “I want to make sure that every single Pennsylvanian has the protections that I have. It shouldn’t matter where you live – you should be able to live your life with those same protections.”

Tyler Titus is a former Democratic candidate for Erie County Executive and serves on the Pennsylvania Commission on LGBTQ affairs. Titus claims to have experienced discrimination firsthand that could have been prevented with protections in state law. 

“I have been subjected to numerous acts of discrimination within my places of employment, housing and academic settings,” Titus told City and State. “From being denied the ability to cover my partner on insurance to being told I wasn’t permitted to use the communal restrooms, to having my office and dorm room moved to make others comfortable, to verbal harassment and sexual harassment. Unfortunately, this is an everyday reality for so many of us in our commonwealth.”

Legislation to enact statewide protections for LGBTQ individuals hasn’t seen much movement despite support from lawmakers on both sides of the aisle. State Sen. Pat Browne, a Republican who chairs the Senate Appropriations Committee, is the lead sponsor of similar legislation in the Senate. Browne is the brother of fashion designer Thom Browne, who is gay. Browne’s office didn’t respond to requests for an interview, but upon introducing the Fairness Act in 2015, Browne – a noted numbers guy – said the bill would not only protect members of the LGBTQ community but would also bolster the state’s economy. “Promoting inclusion and eliminating discrimination fosters growth in Pennsylvania’s economy by ensuring that the commonwealth is able to attract employees from a highly skilled workforce and, in particular, appeal to members of the innovative millennial generation,” Browne said in a statement at the time. 

Browne’s legislation has also received support from Republican state Sen. Camera Bartolotta, who sponsors the bill and said at a rally in February 2020 that “it is about damn time” that LGBTQ protections get enshrined in state law. But to date, that hasn’t happened, despite support – both in Pennsylvania and across the country – for protections against discrimination for LGBTQ people. A poll from the Public Religion Research Institute released in March found that roughly eight in 10 Americans – or 79% – support laws that protect members of the LGBTQ community from discrimination. 

A poll conducted by Hart Research Associates on behalf of the Human Rights Campaign and Equality Pennsylvania in 2017 similarly found that a majority of Pennsylvanians support laws that prohibit discrimination against LGBTQ people in housing and employment. 

A spokesperson for the Pennsylvania House Republican Caucus did not comment on whether there is support for legislation establishing nondiscrimination protections within the caucus. 

“Any bill, including the Fairness Act, must go through the normal legislative process, which starts in the beginning by getting support from and approved by a majority on the standing committee to which it has been referred prior to being ready for a larger member discussion in advance of any decision on a floor vote,” said House GOP spokesperson Jason Gottesman. 

A Senate Republican spokesperson did not immediately comment on similar legislation in the Senate. 

As the Fairness Act continues to go nowhere in Harrisburg, the bill’s proponents continue to stress to skeptical lawmakers just how the policy could benefit everyday Pennsylvanians – especially while LGBTQ Pennsylvanians are the subject of other bills in the state legislature, like a proposed policy to ban transgender students from competing on girls school sports teams. 

“I don’t think that there is anything about people like me to be afraid of. We’re human, just like everybody else,” Benham said. “I think that when we come back to our shared humanity, we have an opportunity to break down those barriers and reduce fear.”

Titus expanded on Benham’s concerns, noting that members of the LGBTQ community – youth in particular – are at greater risk of suicide than their straight, cisgender peers. According to data from The Trevor Project, a suicide prevention nonprofit for LGBTQ youth, approximately 45% of youth who responded to the organization’s 2022 National Survey on LGBTQ Youth Mental Health said they “seriously considered attempting suicide” in the last year. 

“Prior to graduating high school, I had two suicide attempts. I had grown to believe that I was fundamentally broken as I heard the jokes in the hallways,” Titus said in an email. “I felt the punchlines on the TV shows and the animosity towards LGBTQIA (queer) people in my rural hometown was palpable. Research shows us that suicide remains a leading cause of death for this community and the main contributing factors are familial rejection and social isolation. This means that lives are ending because people are permitted to perpetuate harm because there is no legal way to stop it.” 

That’s not to say there haven’t been other efforts to protect LGBTQ Pennsylvanians from discrimination. In a 2020 U.S. Supreme Court ruling out of Georgia, Justice Neil Gorsuch wrote: “An employer who fires an individual merely for being gay or transgender defies the law.” The court ultimately ruled that Title VII of the Civil Rights Act of 1964 protects LGBTQ citizens from employment discrimination. 

But the ruling still leaves gaps, with LGBTQ people still susceptible to discrimination in housing and public accommodations. So even amid piecemeal victories, advocates for the LGBTQ community in Pennsylvania are still continuing the fight. 

“We are not asking for more. We are asking for the same rights as everyone else in the commonwealth,” Titus said. “Besides being the moral and right thing to do, there are undeniable economic benefits for non-discrimination legislation that permits and encourages all Pennsylvanians to participate.”