Beth Ann Rosica: Pennsylvania culture wars to be waged in the courtroom
Author’s disclosure: I am a plaintiff in the litigation discussed in this article.
Since President Trump issued two executive orders regarding the definition of sex and keeping men out of women’s sports, culture wars are reaching a fevered pitch and will likely be settled in court.
A petition was filed in the Commonwealth Court of Pennsylvania on Thursday, alleging a state agency did not have the authority to enact regulations changing the definition of sex to include “gender identity.”
The Pennsylvania Human Relations Commission (PHRC) in 2023 changed its regulations to include gender expression, gender identity, and affectional or sexual orientation in the definition of “sex.” According to the PHRC, every school district is legally obligated to follow the regulations, despite the executive orders.
As a result, the firm of Dillon, McCandless, King, Coulter & Graham, located in Western Pennsylvania and special counsel to the Thomas More Society, filed a petition against the Governor and the PHRC, alleging the regulations are a violation of the state constitution and the non-delegation doctrine.
“In violation of the Pennsylvania Constitution, the PHRC has created a heretofore unimagined meaning of ‘sex’ within the Commonwealth of Pennsylvania,” the petition alleges. “Under the PHRC regulations, there are multiple classifications of persons such as males, females, nonbinary, heterosexual, homosexual, bisexual, or asexual individuals who by inclination, practice, identity or expression, having a history thereof, or being perceived, presumed or identified by others as having such an orientation.”
The petition was filed on behalf of two school districts, including South Side Area School District, located in Beaver County, and Knoch School District, located in Butler County. Additional plaintiffs include five individuals, most of whom are parents of children impacted by the regulations. Three of the individual plaintiffs are elected officials: State Representative Aaron Bernstine, serving portions of Butler and Lawrence counties; State Representative Barbara Gleim, serving parts of Cumberland County; and Jason Saylor, Perkiomen Valley School Board Director, located in Montgomery County. The two other parent plaintiffs are Alexandra Pasternak in Delaware County and this writer, Beth Ann Rosica, in Chester County.
Attorneys for the plaintiffs also allege the regulations violate the Non-Delegation Doctrine, which states that only legislators can enact laws and they cannot delegate that authority to any other agency or group.
“Pursuant to the Non-Delegation Doctrine, the General Assembly is prohibited from granting, ‘to any other branch of government or to any other body or authority,’ the power to make law,” the petition states.
These regulations impact every school district in the Commonwealth and both force and allow students to use the bathroom of their choice. Some districts are relying on these regulations to continue to allow boys to compete in girls’ sports. Springfield Township School District issued this letter, reinforcing their compliance with the PHRC regulations.
Attorneys for the plaintiffs, Thomas W. King, III and Thomas E. Breth, believe the regulations violate Pennsylvania’s constitution. “Pennsylvania’s constitution recognizes males and females, period. The courts have consistently interpreted the term sex in the Commonwealth of Pennsylvania to mean males and females,” the attorneys said. “These regulations disregard centuries of legal precedent to redefine sex to go well beyond males and females. The General Assembly is the only body that can make such a public policy decision. Certainly not the Governor or the PHRC.”
The petition incorporates multiple citations from both state laws and precedential court cases limiting the definition of sex to two biological categories, including Pennsylvania Public School Code, section 7-740 entitled “water-closets or out-houses.”
“The board of school directors in every district shall, with every building used for school purposes, provide and maintain in a proper manner, a suitable number of water-closets or out-houses, not less than two for each building, where both sexes are in attendance,” cites the petition. “Such water-closets or out-houses shall be suitably constructed for, and used separately by, the sexes.” [emphasis added in the petition]
The petition comes at a time when the culture war over this issue has reached a frenzied level. I have written about the controversy extensively over the last few months, and most recently about the wishy-washy regulation changes enacted by Pennsylvania Interscholastic Athletic Association (PIAA), the governing body for Pennsylvania secondary school sports.
While I argue the PIAA regulations are not unequivocal and do not ultimately protect girls or boys, a coalition of progressive organizations issued a letter the same day as the petition was filed claiming discrimination against transgender athletes. The letter cites the PHRC regulations as protections for these students to compete in the sports’ category of their choice.
“Pennsylvania law independently makes clear that transgender individuals have the right not to be discriminated against based on their gender identity,” the organizations write in the letter. “The Pennsylvania Human Relations Act (‘PHRA’) provides that ‘[t]he opportunity for an individual to . . . obtain all the accommodations, advantages, facilities, and privileges of any public accommodation . . . without discrimination because of . . . sex . . . is hereby recognized as and declared to be a civil right which shall be enforceable as set forth in this act.’”
The agencies who signed the letter include Women’s Law Project, Education Law Center of PA, ACLU Pennsylvania, Public Education Advocates of Lancaster County, Fairness Pennsylvania, GLSEN, and Planned Parenthood Association of Pennsylvania.
The importance of overturning the PHRC regulations cannot be overstated. School districts are caught in the middle of an untenable situation where they must choose to follow the executive orders or state law and subsequently risk losing federal funding. Perhaps even more important, these unconstitutional regulations need to be voided to reveal the true nature of every school district and its school board.
Most districts and school boards in the state —and just about every single one in Southeastern Pennsylvania — claimed they were required to close schools and forcibly mask students or else they would lose federal funding. Now that the President threatens the same, it remains to be seen whether they will comply with the executive orders to keep their funding or choose to ignore them based on ideological reasons.
Is the loss of federal funding really the reason school districts comply with federal mandates or do they only comply with the ones they agree with? Only time, and possibly the outcome of court proceedings, will tell.
Beth Ann Rosica resides in West Chester, has a Ph.D. in Education, and has dedicated her career to advocating on behalf of at-risk children and families. She covers education issues for Broad + Liberty. Contact her at barosica@broadandliberty.com.
The war on women continues. No matter how many tangential issues are raised, the whole purpose of the gender issue is to cower women into a kind of sexual submission. No matter what logic is thrown out, a person cannot change their chromosomes. A biological reality. I can stand in my garage 24/7 but I will never become a car.
You are right there is a war on women. In many states women have no right to choose what happens to their bodies. In the event of a pregancy laws that prevent them from having any control over their body and the laws are so vaguely written that doctors and hospitals are placing their lives at risk. Even when the health of the mother at risk, they are being refused treatment until it is to late.
As for the rest of the authors malarkey, out of the 4 plaintiffs, four of them are politicians or politically motivated. Ms Roscia is a Libertarian who believes that people should be free to live their lives with minimal government interference. Which makes her a hypocrite, not a Libertarian.
1. War on women? Where? Afghanistan, Saudi Arabia, Iran, Yemen, Pakistan, Somalia, Sudan, North Korea, Syria, Chad, Congo, Central African Republic, Egypt, Iraq, Sudan, Bangladesh, China…? War on women! Honduras, Guatemala, El Salvador, Zimbabwe, Lesotho, Afghanistan, Tanzania, Uganda, Burundi, Ethiopia, Senegal, Cameroon, Nigeria, Kuwait, Oman, Qatar, Lebanon, Jordan, Brunei, Venezuela, Russia, Belarus, Kazakhstan, Azerbaijan, Armenia, Tajikistan, Turkmenistan, Sierra Leone, Gambia, Malawi, Zambia, Rwanda, South Sudan, Ivory Coast, Togo, Benin, Burkina Faso, Djibouti, Palestine, Myanmar?
Here in the United States!?!? Are you joking? Women are the most protected class of people in the United States. We even have men fighting to say they should be treated and acknowledged as women! Children are actually under attack. Especially girls. This is about protecting school-aged children.
2. There are more than 4 plaintiffs. That is your first bit of evidence you may not comprehend this discussion as well as you think you do. It should make you more curious what else you missed.
3. Why does it make her a hypocrite to believe that people should be free to live their lives with minimal interference? Here is another clue you may be making an argument that does not align. You wrote a statement, but left out critical words, and subsequently you have left the reader to possibly infer something different then what you actually wrote. Maybe you meant to add you don’t think a growing baby inside a woman has their own independent rights, and as such, people shouldn’t get the government to interfere with pregnancies. Is that what you meant? Or did you mean that school age children are the property of the government and parents have no rights in what they are taught? I’m not sure what you meant by your last two sentences.
Exactly so. I assume that female infants in the birth canal being terminated is not a war on women, it is just the exercise of “reproductive health.” The fact that the body parts can be sold afterward is just a bonus. The lack of respect for life is a major contributor to societal violence, if the government won’t protect the most vulnerable among us, why should anyone? Maybe our motto should be: Give a damn, why? Get out of my way, I’m entitled and you are not.
So women in America should forced to give birth no matter what. If a woman doesn’t want to have a baby that his her choice, Forcing her to give birth is entitlement on your part. Because you play no role in raising the child and programs that are designed to help them are being cut. If the lack of respect for life is a major cause of violence, then you should also be against the death penalty.
Women are the most protected class of people in the United States. – Except when it comes to have control over their bodies when they get pregnant or when their lives are placed at risk by their pregnancy. I live in the United States, not the other countries you mentioned. Programs led by USAID and others were helping these women who are overseas, so you should tell Trump to reinstate them
“There are more than 4 plaintiffs”. – Four of them are politically motivated and she left out any information about the fifth one.
“Why does it make her a hypocrite to believe that people should be free to live their lives with minimal interference?” – Because she wants to legally interfere with how people leads their lives.
Ms. Judah, Your ideas are blended with your identity. It diminishes people when they do that. It is empowering to admit when you are wrong. Being wrong and then correcting or adjusting one’s ideas, as you collect more information, is necessary to grow as a human. Your first comment said “As for the rest of the authors malarkey, out of the 4 plaintiffs, four of them are politicians or politically motivated.” Then: “she left out any information about the fifth one” Guess what? There are more than five plaintiffs, too. Here is a list:
1.South Side Area School District (Beaver County)
2.Knoch School District (Butler County)
3.State Representative Aaron Bernstine (serving portions of Butler and Lawrence counties)
4.State Representative Barbara Gleim (serving parts of Cumberland County)
5.Jason Saylor (Perkiomen Valley School Board Director, Montgomery County)
6.Alexandra Pasternak (Delaware County)
7.Beth Ann Rosica (Chester County)
“Why does it make her a hypocrite to believe that people should be free to live their lives with minimal interference?” – Because she wants to legally interfere with how people leads their lives.”
Incorrect. Instead of “interfere with how people leads their lives” the plaintiffs are trying to stop the Pennsylvania Human Relations Commission (PHRC) from overstepping its boundaries by making these new rules without permission from the lawmakers. They have no right, nor the legal power, to make such significant public policy decisions. She is doing the exact opposite of what you think she is doing. You should apologize.
There are two sexes, two genders, male and female. Neither can ever be the other. Suggesting or demanding they can is to disregard and ignore biological reality. This transgender rubbish is an effort, a deliberate effort, to erase women from society. Forcing women to accept men into their personal spaces, lavatories, locker rooms, changing areas, etc, is sexual assault and the diminishment of women in general. It is despicable treatment of women.
Edward, you are mostly correct. It is more than that. Look into “Rules for Radicals” by Saul Alinsky published in 1971. LGBTQIA+ is a coalition of different ideas that do not make any sense whatsoever to be grouped together. Alinsky’s disciples use these tactics to wage a broad cultural war against American values that are based upon the idea of the Creator, which is first mentioned in the Declaration of Independence. LGBTQIA+, as a political block, was designed to create division and chaos, ultimately aiming to transform our society. One of their first steps was trying to get everyone to agree to being “politically correct” in “polite” society in the late 1980s and early 1990s. Stop being nice to evil people.