Why Pennsylvania’s Hate Crime Laws Still Lack LGBT Protections

There are numerous bills in the state legislature that hope to address this. But so far they've stalled. Here's the deal.

In the wake of the country’s worst-ever mass shooting, the nation’s cry for change is hard to ignore.

In the early morning of June 12th, a gunman opened fire at a popular LGBTQ nightclub in Orlando, killing 49, wounding 53, and leaving a horrific mark on the nation.

The massacre has brought discussions of hate crimes to the forefront of the country. Was the rampage fueled by terrorism and the killer’s professed ties to the Islamic State, or was it a hate crime against the LGBTQ and Latinx communities? President Barack Obama said it was both “an act of terror and an act of hate,” but federal investigators aren’t yet sure what to call it.

In Pennsylvania, members of the LGBTQ community are not covered by the state’s hate crime legislation, meaning crimes committed in the state based on someone’s sexual orientation or gender identity cannot be charged as hate crimes. 

A 2014 FBI report states that about 20 percent of hate crimes across the country are related to sexual orientation. That makes hate crimes based on sexual orientation the second-most frequent, behind those that are racially motivated.

Pennsylvania is the only state in the Northeast that doesn’t address LGBTQ people in its hate crime laws.

A bill introduced in the wake of the 2014 Center City gay bashing incident — a state House bill sponsored by former Rep. Brendan Boyle (who has since graduated to Congress) — was aimed at restructuring Pennsylvania’s hate crime laws. The bill received a vote in committee but was never called to a vote on the house floor.

Brendan’s brother, state Rep. Kevin Boyleintroduced another bill in 2014, HB 218, that would amend the state’s hate crime laws to include sexual orientation. Though it has bipartisan support, Pa. Rep. Ron Marsico has so far stalled the bill.

The fate of this consequential bill lies with Marsico, the Republican chairman of the House Judiciary Committee who has not yet allowed it a hearing. Marsico was not available for comment.

“Obviously we don’t believe there should be any discrimination, and these bills are working through the committee process,” said Steve Miskin, spokesman for the state House GOP.

The bill has been in Marsico’s hands for nearly 17 months.

When a 2002 amendment to the state’s Ethnic Intimidation Act (which at the time covered sexual orientation and gender identity as hate crimes) was reversed in 2008, it was a serious loss. Then-Gov. Ed Rendell told the Inquirer he wanted the legislature to reinstate protections immediately. 

But it’s been eight years.

“We were progressive enough in 2002 to have this as part of law in our state,” state Rep. Kevin Boyle said. “But it has unfortunately not been the will, on the part of largely the Tea Party-influenced Republican caucus, to do this.”

Boyle said the bill has 43 co-sponsors, five of whom are Republicans.

Currently, police can investigate incidents targeting victims because of sexual orientation and/or gender identity as “bias incidents,” or “any incident committed against a person or property which is motivated by malicious intention because of a person’s actual or perceived race, ethnicity, religion, national origin, gender, sex or sexual orientation,” according to the PPD.

In 2014, 11 bias incidents related to sexual orientation and two related to gender identity were reported in Pennsylvania, according to Uniform Crime Reporting information. That accounts for roughly 15 percent of incidents investigated as bias incidents.

Still, even though these incidents are investigated as hate crimes, there are no state statutes that legally consider them so. Referring to such crimes as “bias-related incidents” allows state agencies to simply stay informed of their frequency.

It’s also important to note that hate crimes often go widely unreported in the first place. An Associated Press investigation published in June found that about 17 percent of all city and county law enforcement agencies nationwide have not submitted even one hate crime report to the FBI’s crime tally in the last six years.

Miskin said he doesn’t believe Orlando’s recent mass shooting warrants a push forward for the bill.

“Orlando was about terrorists going into a nightclub and killing about 50 people,” Miskin said. “A nation should mourn 50 people being killed by terrorists.”

Boyle’s bill lies in the same position as the long-stalled, long-overdue Pennsylvania Fairness Act, sponsored by state Rep. Dan Frankel and co-sponsored by Philly state Rep. Brian Sims, which would update an original bill from 1955 to prohibit discrimination based on sexual orientation or gender identity.

Staunchly-conservative state Rep. Daryl Metcalfe, the Republican majority chairman of the House State Government Committee, has stalled the Fairness Act for more than nine months.

On June 9th, Frankel and Sims announced that they filed a discharge petition to move the bill along by allowing a simple majority of the House to pry the bill out of the State Government Committee and thus, out of the hands of Metcalfe.

Metcalfe was not available for comment. Bill Patton, a spokesman for the PA House Democratic Caucus, said “many members of the house, in both parties, would like to see that bill receive a fair vote.”

Metcalfe told PennLive on June 9th that the bill is “dangerous” and that debate on the issue is “futile” because he believes the bill will not win Republican majority. He’s specifically opposed a section of the bill that would allow for people to use the bathroom that matches their gender identity, according to PennLive. 

In May, Metcalfe wrote a letter stating “extreme outrage” and fierce opposition to President Obama’s bathroom decree issued in the “Dear Colleague” letter, which prohibits discrimination in schools based on a student’s gender identity.

Boyle called the delay in voting on HB 218 “more of the same in Pa. state legislature,” but he said he won’t curtail his efforts.

“This whole notion of a hate crime bill or hate crime law is that when someone is acting in a particularly violent way to a minority, it’s not just a attack on that specific person,” Boyle said. “It’s an attack on the minority group.”

Follow @ClaireSasko on Twitter.