Thomas Ude Jr. of the Mazzoni Center
At Mazzoni Center, we provide a continuum of health, wellness and legal services for people who are lesbian, gay, bisexual or transgender (LGBT). Mazzoni Center’s legal services program helps LGBT people access tools that can protect them and their families. Our resources limit our ability to provide direct representation in matters outside greater Philadelphia, but LGBT people throughout Pennsylvania need legal assistance, many of whom are low-income and many who fear that they will not be able to find the competent and respectful counsel they need. Wherever, and in whatever areas, you practice law, you will likely encounter LGBT clients. With that in mind, I wanted to address some of the realities of the lives of LGBT people, and how the legal community can address those needs.
In three petitions before it, the U.S. Supreme Court is asked to decide whether discrimination in employment based on sexual orientation (in two of the petitions) or gender identity (in the third) is illegal sex discrimination that violates Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. Section 2000-e et seq. See petition for certification, Altitude Express v. Zarda, No. 17-1623 (filed May 29, 2018) (sexual orientation); Bostock v. Clayton County, No. 17-1618 (filed May 25, 2018) (sexual orientation) and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, No. 18-107 (filed July 20, 2018). A fourth petition asks the court to review claims by a high school student that his privacy rights were infringed by sharing gender-segregated facilities with transgender students under a school district policy permitting students to use facilities that align with their gender identity, see Doe v. Boyertown School District, No. 18-658 (filed Nov. 19, 2018). Each petition has been scheduled for consideration by the justices repeatedly without action (as of April 16). The petitions address the rights of LGBT people in two vitally important areas of life—employment and education—and have even broader implications, because decisions interpreting Title VII are often relied on by state Supreme Courts when interpreting state or local anti-discrimination laws.
Pennsylvania’s Human Relations Act (the PHRA) is an anti-discrimination law that prohibits discrimination because of sex in employment, public accommodations and housing; like its federal counterpart, Title VII, the PHRA does not expressly mention sexual orientation or gender identity. Pennsylvania’s Supreme Court has explained that the PHRA is an independent statute that should be construed in light of employment law emerging from federal anti-discrimination statutes. See, e.g., Chmill v. City of Pittsburgh, 488 Pa. 470, 490-91, 412 A.2d 860, 871 (1980). The Pennsylvania Human Relations Commission is the agency charged with receiving and investigating claims under the PHRA, and with enforcement authority. In August 2018, the PHRC issued guidance addressing the PHRA and the Pennsylvania Fair Education Opportunities Act, and stating that it will accept, investigate and evaluate claims of sex discrimination arising out of a complainant’s sexual orientation or gender identity. See PHRC, Guidance on Discrimination on the Basis of Sex under the Pennsylvania Human Relations Act (Aug. 2, 2018).
In other areas, however, the law is clear. Since 2002, for example, Pennsylvania has recognized second-parent adoptions, which—like stepparent adoptions—allow a nongenetic parent to adopt without the child’s birth parent having to terminate, even briefly, their parental rights. See, e.g., In re: Adoption of R.B.F. and R.C.F., 569 Pa. 269 (2002). Even for a married couple that are both named on the child’s birth certificate, adoption remains important. Being named on a birth certificate does not convey legal status, and the common-law marital presumption of parentage can be rebutted. Since Pennsylvania has no statutes addressing parentage of children conceived with assisted reproductive procedures, the best way to protect the child’s bond with both parents continues to be adoption. The adoption process may be possible to undertake without legal representation, but an attorney’s assistance, and guidance, can increase the efficiency of the process and ease the anxiety of the parents involved.
Another important legal right in which the law is settled is the ability of a person who is transgender to change their name. Often, a name change decree is the best way for many transgender and gender non-conforming people to avoid having to out themselves, such as when asked for identification or while engaging in routine transactions like using a debit card to buy groceries. More than twenty years ago, the Pennsylvania Supreme Court held that a person who is transgender has the right to change their name to align with their gender, regardless of medical treatment, surgery, or hormone therapy, as in In re McIntyre, 552 Pa. 324 (1998). Yet while the law is straightforward, the name change process is often daunting to people who are unrepresented. Moreover, while the statute requires a person seeking a name change to publish notice of the petition and hearing, the statute requires that requirement to be waived if the person’s safety will be jeopardized by publishing. Persuading a judge to understand a petitioner’s safety concerns is a prime example of the assistance our profession has to offer.
Many people who need assistance in these areas reside far from Philadelphia or Pittsburgh. Although social media portrayals of LGBT people suggest that they live (or want to live) in urban areas, many LGBT people live in rural areas by choice. A recent report explains that approximately 4.5 percent of the entire adult population identifies as LGBT, and the proportion of the rural adult population that identifies as LGBT is comparable, ranging from 3 to 5 percent, see Movement Advancement Project. April 2019. "Where We Call Home: LGBT People in Rural America." Other researchers estimate that approximately 10 percent of all youth identify as LGBT, and that rural youth are about as likely as urban youth to identify as LGBT. MAP estimates, based on those estimates, that between 2.9 million 3.8 million LGBT people live in rural areas of the United States, that the reasons why LGBT folks choose to live where they do are similar to the reasons given by their non-LGBT neighbors, and that their rural existence may be just as important as other aspects of their identity. The report also explains that despite media portrayals of rural LGBT people as victimized, surveys of people in rural areas and in urban areas demonstrate majority support for LGBT rights (albeit at slightly higher rates in urban areas).
While rural and urban LGBT people can all experience discrimination, the impact of those experiences can play out very differently. People who are seen as different, including because they are (or presumed to be) LGBT, are more visible. Because rural communities have higher levels of interconnectedness, when something happens to a person in one aspect of their life, such as work or family, that event is more likely to have an impact in other areas, such as family, church, or the broader community. Second, in rural communities, when anti-LGBT discrimination does occur, whether by an employer or by a service provider, it will harder for that person find alternatives. For example, when a doctor refuses to treat a patient because she is transgender, she is likely to have a harder time finding another other doctors to whom she can turn than if she lived in an urban area.
Similarly, many well-known openly LGBT people are celebrities, nearly all of whom are wealthy. Based on the Gallup Daily Tracking Survey, however, those wealthy folks do not reflect the LGBT population in the United States or in Pennsylvania. For example, the Williams Institute of the UCLA School of Law, which conducts research on sexual orientation and gender identity law and policy, estimates that in Pennsylvania, LGBT adults are more likely to experience lower socioeconomic status than their non-LGBT peers in many important areas are. For example, 11 percent of people identifying as LGBT were unemployed, compared with 5 percent of their non-LGBT peers; 10 percent were uninsured, compared with 7 percent of non-LGBT respondents. The disparities were even starker for food insecurity—more than one in four (26 percent) LGBT respondents reported food insecurity, compared with 13 percent of non-LGBT respondents—and income less than $24,000—27 percent of LGBT respondents, contrasted with 18 percent of non-LGBT respondents. See LGBT Demographic Data Interactive, (January 2019). Los Angeles, California: The Williams Institute, UCLA School of Law, available at https://williamsinstitute.law.ucla.edu/visualization/lgbt-stats/?topic=LGBT&area=42#demographic (last checked April 16, 2019).
I hope this helps to explain that because members of LGBT people live in all areas of Pennsylvania, providing informed, respectful and competent legal services is not relegated to attorneys in urban, or even suburban, areas of Pennsylvania. It calls upon members of the legal profession in all 67 counties across the commonwealth to meet those needs. Some legal issues are uncertain, like the ones before the U.S. Supreme Court. But in other areas, answers are straightforward. Understanding the diversity of the LGBT community will help to inform your understanding of your ability to address their needs, so they receive the representation that our profession can provide. If we can be of any assistance in your effort to serve your LGBT clients, please contact us and we will try to help.
Thomas W. Ude Jr. is legal and public policy director at Mazzoni Center, a Philadelphia nonprofit organization providing health, wellness and legal services to the lesbian, gay, bisexual, transgender and queer community. He leads Mazzoni’s legal services program, which provides direct services to and advocacy to address the legal needs of LGBTQ individuals and families in areas that include family law, advanced planning, and discrimination in employment, public accommodations, education, health care and insurance. Contact him at firstname.lastname@example.org or 215-563-0652, ext. 233
Thomas Ude Jr. of the Mazzoni Center