Pennsylvania Defines Sex, Race, and Religious Creed for Purposes of Its Anti-Discrimination Statutes

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Benjamin S. Levine

January 30, 2023

The Pennsylvania Human Relations Act (PHRA) and the Pennsylvania Fair Educational Opportunities Act (PFEOA) prohibit discrimination on the basis of religious creed, sex, and race.  However, neither of the statutes or their regulations define those terms.

Effective February 23, 2023, Regulation #52-13 to the PHRA will define the terms religious creed, sex, and race.

Defining Religious Creed
Regulation #52-13 defines religious creed to include all aspects of religious observance and practice, as well as belief.  Religious beliefs include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.  The fact that no group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of a complainant.”  This definition is consistent with Title VII of the Civil Rights Act (Title VII) and the regulations adopted by the Equal Employment Opportunity Commission.

Defining Sex
Regulation #52-13 defines the term “sex” to include:

• pregnancy, including medical conditions related to pregnancy
  
• childbirth, including medical conditions related to childbirth
• breastfeeding, including medical conditions related to breastfeeding
• sex assigned at birth, but not limited to male, female, or intersex
• a person’s gender, including a person’s gender identity or gender expression
• sexual orientation
• differences of sex development, variations of sex characteristics, or other intersex characteristics

Gender identity or expression is further defined to mean “having or being perceived as having a gender-related identity, appearance, expression, or behavior, which may or may not be stereotypically associated with the person’s sex assigned at birth.”  Gender identity or expression may be demonstrated by “consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity.”

Sexual orientation is defined to include “male, female, or nonbinary heterosexuality, homosexuality, bisexuality, or asexuality by inclination, practice, identity, or expression, or having a history thereof, or being perceived, presumed, or identified by others as having such an orientation.”

Defining Race
The term “race” is defined in Regulation #52-13 as:

• ancestry, national origin, or ethnic characteristics
• interracial marriage or association
• traits historically associated with race, including hair texture and protective hairstyles, such as braids, locks, and twists
• persons of Hispanic national origin or ancestry
• persons of any other national origin or ancestry as specified by a complainant

These definitions of “religious creed,” “sex,” and “race” are meant to ensure that all unlawful discriminatory practices and all unfair educational practices proscribed by the PHRA and PFEOA are interpreted and applied consistently and that all investigations conducted by the Pennsylvania Human Relations Commission are investigated consistently.

A full copy of Regulation #52-13, which will be codified at 16 Pa. Code Chapter §§ 41.201-41.207, can be found here.