A conservative law firm has once again sued to make Pennsylvania a more repressive state, targeting LGBTQ protections in public schools. Thomas More Society attorneys filed suit earlier this month to force the Shapiro administration to get rid of the state’s broader definition of “sex” as it applies to sex discrimination. It’s not the first time this national right-wing group has tried to roll back civil rights for Pennsylvanians, and used Pennsylvania lawyers to do it.
The Lawsuit
The Petition for Review was filed March 6, 2025, on behalf of two school districts (South Side in Beaver County and Knoch in Butler), as well as several parents and taxpayers, including State Representative Barbara Gleim (District 199) and State Representative Aaron Bernstine (District 8). The two representatives were part of the group of PA House members who tried to block certification of the 2020 election, falsely claiming election improprieties.
The suit challenges the Pennsylvania Human Rights Commission (PHRC) over the expansion of its definition of “sex” beyond “the individual’s biological chromosomes and genitalia at birth” to include sexual orientation, gender identity, and gender expression. The PHRC, says the suit, have added whole new sub-categories such as homosexual, asexual, and bisexual (at no point in the suit can they bring themselves to use the word “transexual”).
The argument comes in two parts.
First, the lawsuit argues that the PHRC does not have the authority to make such an alteration to make such an alteration, arguing that folks have always understood that “male” and “female” as a reference to biological chromosomes and genitalia at birth, and the PHRC is illegally rewriting law to suggest otherwise by creating sub-categories of “sex” based on a person’s inclinations, practice, expression, or sexual attraction.
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Second, the suit leans heavily on the Pennsylvania Supreme Court in Allegheny Reproductive Health Center v. PA DHS. The case challenged the state’s ban on using Medicaid dollars to fund abortion in the state. The 2024 decision was a victory for the reproductive health center and it hinged on the state’s Equal Rights Amendment, arguing that by funding men’s reproductive health care, but not women’s, the state was violating the ERA.
The lawyers in the current case are arguing that this previous State Supreme Court decision codified “sex” to mean only male and female.
But Allegheny acknowledges in several places that transgender and non-binary people may be capable of pregnancy and childbirth. The suit quotes the ruling, “[B]ased upon the unambiguous text of the Equal Rights Amendment, there is no room for a carve out for laws that differentiate between the sexes for any reason.” But it’s not clear that this rules out definitions of sex based on factors other than chromosomes and genitals.
The legal firm expresses particular concern that the PHRC regulation would “have profound implications for the preservation of equal rights and parental authority, while threatening school policies on issues like bathrooms and athletics—placing districts in legal jeopardy.” In other words, the PHRC rules would create trouble for school districts that wish to discriminate against LGBTQ students.
That would certainly concern a district like South Side Area School District, which has been busy passing anti-gender identity policies, aided by the Independence Law Center, the Pennsylvania Family Institute’s legal arm that has been helping school districts across the state pass anti-diversity rules.
The Firm Behind the Suit
The Thomas More Society is a “not-for-profit, national public interest law firm dedicated to restoring respect in law for life, family, religious liberty, and election integrity.” The firm has worked cases challenging both abortion and birth control, LGBTQ rights, and virtually all pandemic mitigation strategies (not just anti-vax, but also anti-masking, anti capacity limits, and anti social distancing). They helped mount legal challenges to the results of the 2020 Presidential election; they also employed Senior Trump advisor Jenna Ellis as a special counsel. And they mounted the successful challenge to Pennsylvania’s mask mandate.
They are also the law firm behind the 2023 lawsuit over the Pennsylvania Department of Education’s Culturally Relevant and Sustaining Education standards meant to be part of teacher training in the commonwealth which was promoted by former Governor Tom Wolf. Then, as now, they collected a couple of school districts, some parents, and a board member or two to be plaintiffs for the case.
As I wrote at the time of adoption, the standards were a bit of a mixed bag. In 2024 the Shapiro administration settled the suit by downgrading the standards to “optional.” The Thomas More Society proudly announced that the department had rescinded the “woke” curriculum standards. Said one of the attorneys, “Our agreement is a triumph against the Department’s blatantly ideological and illegal attempt to inject ‘woke’ activism into school curricula across Pennsylvania.”
Because Thomas More is based in Chicago, they needed boots on the ground here, and for that they hired the Western Pennsylvania law firm of Dillon McCandless King Coulter & Graham, specifically lawyers Tom King and Tom Breth. DMKCG has a wing specializing in school districts, and as district solicitors they have been involved in many conservative flashpoints in Western PA. In the standards case, the school districts involved were client districts, and in the current case, Tom Breth is the solicitor for the Knoch School District and the South Side District, the two districts involved in this suit.
King has conservative credentials, including serving as the general counsel of the Pennsylvania GOP and as a delegate to the Republican National Convention. Breth’s bio lists him as a special counsel to the Thomas More Society.
What Are The Stakes
Tom King’s statement in the Thomas More press release gives us a hint of where this is headed:
“Gov. Josh Shapiro’s and the Pennsylvania Human Relations Commission’s radical redefinition of ‘sex’ undermines our state constitution, parental rights, and the fair and equal treatment of every Pennsylvanian—male or female. This regulatory redefinition of reality is a blatant example of government bureaucrats overstepping their authority to push gender ideology. The Human Relations Commission wasn’t elected by anybody and nor were they ever authorized by the legislature to do this. We are proud to stand with these brave school districts and families to demand accountability and restore the rule of law.”
“Gender ideology” is always a tell, because it is rarely defined, but is generally a vague hand wave in the direction of LGBTQ issues. In use, it appears to refer to anything that acknowledges that LGBTQ persons exist. The ultra-right Heritage Foundation, in a piece mostly about how hard it is to define “gender ideology” finally lands on this:
“Gender ideology is the view that the sex binary doesn’t capture the complexity of the human species, and that human individuals are properly described in terms of an ‘internal sense of gender’ called “gender identity” that may be incongruent with their ’sex assigned at birth.’”
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The author, Jay Richards, Director of the DeVos Center for Life, Religion and Family, goes on to explain the perceived problem with this — that it replaces an objective truth about the physical reality of men and women with the idea of psychological selves, “like disembodied gendered souls” that are “independent of and can be incongruent with the bodies that God gave us.”
Richards presents this argument as if it is self-evidently bizarre, as if he is on the sensible side of a debate, and it does seem as if there’s a deep philosophical discussion to be had about the nature of human existence — is our identity a feature of our physical selves, or are we the product of psychological and spiritual factors that are more than and separate from our bodies.
Except that science tells us that human biology is more than a simple binary. As Tina Hesman Saey put it in an article for Science News, “Many genetic, environmental and developmental variations can produce what are thought of as masculine and feminine traits in the same person.” A variety of factors, including the distribution of chromosomes at conception, make the assignment of gender messy.
President Donald Trump’s attempt to limit humans to two simple and easily-identified gender by Presidential edict does not change the reality of the science, and neither will the results of the Thomas More Society’s lawsuit.
What could be changed is whether or not LGBTQ persons have the legal right to seek remedies to discrimination when it occurs. What is at stake is the question of whether or not LGBTQ persons should have fewer civil rights under the rule of law in Pennsylvania.
