Thomas Breth is a partner with the law firm of Dillon McCandless King Coulter & Graham L.L.P.
He explained in an interview with AFN what is meant by the term "sex."
"Well, in Pennsylvania, up until the point where the Pennsylvania Human Relations Commission put this regulation in place, sex was defined the way the rest of the world, we believe, defined it, and that is a male and a female. And that is it. That was the limit of sex. You were either a biological male or biological female."
That’s no longer the case in Pennsylvania.
So what happened? Breth explained the Pennsylvania Human Relations Commission, with the consent of the governor, has expanded that definition.
“For sex-discrimination purposes, transgender individuals, those that perceive themselves as being bisexual, asexual, homosexual, heterosexual. It has brought a definition that can be self-defined. The individual can define their sex at some undefined point or points in their life. They can declare themselves to be of whatever sex they deem to be at that time."
Breth said this lawsuit is challenging the legal authority of the commission to adopt this regulation.
"We believe the plaintiffs, which consist of school districts, parents on behalf of the students, have challenged the constitutional action -- or the unconstitutional actions of the Pennsylvania Human Relations Commission. This is an independent administrative agency under the executive branch of government in Pennsylvania.”
Though it represents the will of the governor, the commission has overstepped its bounds, Breth said.
“It is not part of the legislature or the general assembly, and effectively they have rewritten the law in the Commonwealth of Pennsylvania, and they don't have the authority to do that. It's twofold."
The state constitution does not allow for any branch beyond the general assembly to write state law.
"In Pennsylvania we have…what's called the non-delegation doctrine. The general assembly can't delegate its law-writing, its public policy authority to a different branch of the government. So, we're challenging these regulations as violating Pennsylvania's constitution and the non-delegation doctrine that's contained therein,” Breth said.
The second part of the complaint says the commission’s definition of sex is incompatible with the state constitution.
“The definition of sex that has been put forth by the Pennsylvania Human Relations Commission, violates Article 1, Section 28 of the Pennsylvania Constitution, which is the non-discrimination provisions based upon sex, and the Pennsylvania Supreme Court has made it clear in the constitutional context when the Pennsylvania Constitution refers to sex, it is specifically referring to male or female. Period. No other, genders or sex, the Pennsylvania Constitution is clear that there are only males and females," Breth said.
The sex talk
The state's high court weighed in on this not long ago.
"Pennsylvania's Supreme Court issued a decision as recently as 2024 in which the court clearly articulated that position that there are males and females, and when the term 'sex' is used in the Pennsylvania Constitution, it is referring to either males or females," Breth said.
Breth gave credit to the Thomas More Society.
“This is another case that the Thomas More Society has given us the financial resources to pursue this very important litigation to protect the students and the families within the Commonwealth of Pennsylvania, including the school districts we represent. It’s great to have them support us."
