ACLU and Mazzoni Center Join City in Filing Brief Against SEPTA

Photo by Jeff Fusco

Photo by Jeff Fusco

The American Civil Liberties Union and the Mazzoni Center joined the City of Philadelphia and the Philadelphia Commission on Human Relations in filing a brief last Thursday to the State’s Supreme Court, asking to overturn the Commonwealth Court’s August 7 ruling in favor of SEPTA. That ruling indicated that SEPTA was not subject to Philadelphia’s city ordinance which bans discrimination against sexual orientation and gender identity.

The brief, in part, reads as follows:

“If SEPTA is not subject to the jurisdiction of the Philadelphia Human Relations Commission when it is operating in Philadelphia, then Philadelphia will not be able to enforce its Fair Practices Ordinance against SEPTA to address acts of discrimination on the basis of sexual orientation—a basis of discrimination that the Pennsylvania Human Relations Act does not expressly prohibit. The decision of the Commonwealth Court is of great importance because it undermines the ability of lesbian, gay, bisexual, transgendered people and others to gain or even seek redress against discrimination based on sexual orientation by SEPTA. It is also important because it undermines the Pennsylvania legislature’s longstanding and well-developed plan to allow localities to innovate in the field of fair practices and nondiscrimination and to prevent kinds of unacceptable discrimination within their borders regardless of whether they are recognized as such by the legislature of the Commonwealth itself.”

Attorney Andrew Chirls, who is representing the ACLU and Mazzoni Center in this case, says that he and his peers have chosen to “focus more on the practical impact of the Commonwealth Court’s ruling,” adding that the court’s decision “undermines the system in place for decades under which cities and towns have power to innovate in non-discrimination law.”

“For the most part, Philadelphia has been ahead of the state in creating remedies for discrimination, and the legislature has said that this is the way it should be,” he added. “The courts should not nullify that approach.”

The initial case stemmed from SEPTA’s practice to mark a rider’s gender on his or her bus pass. However, back in 2013, the organization stopped issuing bus passes with the gender designations.

SEPTA has maintained that their appeal of the 2013 decision has had nothing to do with sexual orientation. They issued a full statement on August 10 of this year, which reads, in part:

“The case concerned one governmental entity’s authority over another based upon the statutory scheme overlaying both of those governmental entities. The central question of the case was whether that statutory scheme authorized the City to apply the FPO to SEPTA. SEPTA’s motion had nothing to do with protections afforded or not to the LGBTQ community.”

However, Chirls disagrees.

“If this case has nothing to do with sexual orientation discrimination, as SEPTA says, then it is ironic that SEPTA cooperated with City investigators for years until the sexual orientation and gender discrimination cases started to pile up,” he said. “It was only then that SEPTA reversed its position and said that it didn’t want to have to respond to the Philadelphia Commission on Human Relations inquiries.”

We reached out to SEPTA, and were informed that they could not provide comment at this time.