Gender, bathroom wars and the Pa. GOP governor's race: What are the issues?

Governor 2018 – Pennsylvania
Pa. gubernatorial candidates State Sen. Scott Wagner (R., York), left, Laura Ellsworth, center, a lawyer from suburban Pittsburgh, and Paul Mango, right, a former health care systems consultant from suburban Pittsburgh, participate in a debate at Harrisburg Area Community College this month.

The Republican primary for Pennsylvania governor has waded into the culture wars over bathrooms.

Paul Mango, who is positioning himself as the “true social conservative” in the race, has accused State Sen. Scott Wagner of supporting legislation that would “allow individuals to choose a bathroom based on personal choice rather than biological makeup.”

Mango’s campaign says Wagner’s legislation would “treat people of faith like bigots, subjecting people of faith to lawsuits and worse” and “infringe on the privacy and security of our children, as well as parental rights.”

“One thing I will not do is let people, by gender identity, come into our girls’ locker rooms in schools in the name of generating business in Pennsylvania,” Mango said Tuesday at a debate at the National Constitution Center. “I’m going to keep our kids safe and secure. I’m not going to advance that bill, his bathroom bill, at all.”

Wagner, who has been endorsed by the state GOP, responded that Mango “has gone off the reservation with a bathroom bill. I am not supportive of boys and girls sharing bathrooms, and he knows that.”

Who is right? And where does the bathroom talk come from, anyway? Is there any evidence that children’s privacy and security would be endangered, or religious liberty threatened?

State law prohibits discrimination on the basis of race, sex, ethnicity, age, religion, and handicap, among other characteristics, in the areas of employment, housing, and public accommodations. That means, for example, that employers can’t refuse to hire you because you’re a woman; real estate agents can’t deny you housing because you’re black; and restaurants can’t deny you service because you’re Jewish.

In 2016, Wagner co-sponsored Senate Bill 974, which would amend the Pennsylvania Human Relations Act of 1955 to extend those non-discrimination protections to gender identity/expression and sexual orientation in employment, housing, and public accommodations. Thus, it would be illegal to fire people because of their sexual orientation or gender identity. The legislation never advanced. Wagner has said the issue is a matter of fairness.

Public accommodations are places that provide goods and services such as restaurants, movie theaters, hotels, and public schools. If sexual orientation and gender identity were added to anti-discrimination law, then public accommodations couldn’t exclude transgender people from the restrooms that correspond to their gender identity “any more than you could exclude Muslims” from an establishment, said Mariah Passarelli, a Pittsburgh-based lawyer at Buchanan Ingersoll & Rooney PC who specializes in employment and anti-discrimination law.

In schools, that means facilities such as bathrooms and locker rooms must also be accessible.

“Prohibiting individuals from using restrooms consistent with their gender identity would likely be interpreted to be discrimination based on gender identity in violation of the law,” said Christy Mallory, state and local policy director of the UCLA School of Law’s Williams Institute, a think tank that researches sexual orientation and gender law and public policy.

Mallory pointed to court decisions that she said have interpreted the federal civil rights law that bans sex-based discrimination in federally funded schools to “allow students to access restrooms consistent with their gender identity.”

That means Mango is correct, in part: The legislation could mean that transgender students would be able to use the bathroom that doesn’t correspond to their sex at birth. Ultimately, though, that would hinge on court decisions.

And it is misleading to characterize Wagner’s legislation, known as the Fairness Act, as a “bathroom bill.”

For one thing, bathrooms and locker rooms aren’t mentioned in the text of the bill, and its stated rationale is to ensure equal opportunity and foster “economic growth and prosperity.”

What’s more, there’s little evidence to suggest children’s privacy and security would be threatened.

CNN reported in March 2017 that of the 20 law enforcement agencies it had contacted in states with anti-discrimination policies covering gender identity, none that answered “reported any bathroom assaults after the policies took effect.”

Nineteen states and the District of Columbia have statewide laws that prohibit discrimination in public accommodations; 20 states and D.C. provide that prohibition in housing and employment.

In Pennsylvania, about 40 municipalities and counties, including Philadelphia, have their own anti-discrimination laws. As of 2013 at least 139 companies headquartered in Pennsylvania prohibited discrimination based on sexual orientation, and at least 40 prohibited discrimination based on gender identity, according to a report by UCLA’s Williams Institute.

“We just have found no evidence that anti-discrimination protections impact public safety or privacy in bathrooms or locker rooms,” said Jody Herman, a scholar at the Williams Institute.

Meanwhile, the 2015 U.S. Transgender Survey of nearly 28,000 transgender adults in the U.S. found widespread discrimination.

One example cited by Mango’s campaign is a lawsuit filed by a group of students against the Boyertown Area School District in Berks County, which had adopted a transgender-friendly bathroom policy. The plaintiffs said the policy violated their “fundamental right to bodily privacy” under the 14th Amendment to the U.S. Constitution, as well as federal civil rights law that prohibits sex-based discrimination in schools that receive federal funding.

A federal judge in August declined to block the school district’s policy on a temporary basis, and the student-plaintiffs are appealing the case to a federal appeals court in Philadelphia.

Mango has pointed to another bill Wagner supported, SB 1307, that extended anti-discrimination protections to LGBT people in the areas of housing and employment, not public accommodations.

That bill advanced out of a Senate committee but did not get a vote on the the Senate floor. Mango notes that Wagner voted against a religious liberty amendment. A case pending before the U.S. Supreme Court could be instructive for states such as Pennsylvania that are trying to balance discrimination protections with religious liberty.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, a Colorado baker who refused to bake a cake for a gay couple’s wedding argues that the state’s anti-discrimination law violates his constitutional rights to religious freedom and free expression.

The Pennsylvania Human Relations Act provides for some religious exemptions that seem designed to protect male-only clergy in certain faiths, as well as convents, according to Douglas Laycock, an expert on laws of religious liberty and professor at the University of Virginia.

Looming over the whole debate is a split in federal case law and uncertainty over how the federal agency that enforces anti-discrimination law will operate under the Trump administration.

Under President Trump, the Justice Department and Education Department have reversed Obama-era policies that said federal civil rights laws prohibited discrimination on the basis of gender identity in the workplace and in schools that receive federal funding. However, the Equal Employment Opportunity Commission’s position remains unchanged from the Obama years.

Federal appeals courts are divided on whether civil rights laws protect gender and sexual orientation against discrimination in employment and education.

Increasingly, though, they have ruled in favor of LGBT workers. Courts have cited the U.S. Supreme Court’s ruling in 1989 that discrimination in the workplace based on sex stereotyping and gender nonconformity was illegal under Title VII of the 1964 Civil Rights Act.

The winner of the May GOP primary, which also includes lawyer Laura Ellsworth, will face Democratic Gov. Wolf in November.