A lawsuit pushed by a right-wing legal shop in order to make life more difficult for LGBTQ adults and students in Pennsylvania has hit a snag. The judge has admonished the lawyers for submitting a brief filled with errors. “Who wrote it?” Commonwealth Court Judge Matthew Wolf questioned attorney Tom King. “And does it contain AI, artificial intelligence hallucinations?”
Wolf noted problems with numerous citation errors, including misquotes and quotes that don’t exist. King filed an application for relief in order to have a chance to file a corrected brief; as of January 9, it appears the court has not yet decided whether to allow the attorneys to fix their mistakes.
So how did we get to this point?
The Lawsuit
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 has added whole new sub-categories such as homosexual, asexual, and bisexual (at no point in the suit could they bring themselves to use the word “transgender”).
A win for the Thomas More Society would strike down anti-discrimination protections for LGBTQ youth.
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 (R-199) and state Representative Aaron Bernstine (R-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.
First, the lawsuit argues that the PHRC does not have the authority to make such an alteration to make such an alteration. “Under the Non-Delegation Doctrine, the General Assembly is prohibited from granting, ‘to any other branch of government or to any other body or authority,’ the power to make law,” says the Petitioners Brief.
The plaintiffs argue 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. “The decision to change the definition of ‘sex’ is exactly the type of basic public policy choice that must be made by the Legislature.”
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.
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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 Knoch district has also passed policies forbidding boys from playing on girls’ teams and a policy against sexual harassment, which the petitioner’s brief would be impacted by the PHRC’s new definitions. In other words, the district would be required to protect trans students from harassment, and would be challenged for discriminating against trans athletes. Knoch’s school board put up $10,000 to join the lawsuit, over the objections of many citizens.
The petitioner’s brief also cites at length the Trump executive order “Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government”, as if Presidential edict somehow establishes biological facts.
The Firm Behind The Lawsuit
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), including a successful challenge to Pennsylvania’s mask mandate. 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.
The firm was also 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.
Because Thomas More is based in Chicago, they need boots on the ground here, and for that they hired the Western Pennsylvania law firm 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 has served 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 and legal counsel for the Religious Rights Foundation of Pennsylvania, a conservative religious legal shop that has its own ties to the Thomas More Society (and promises to keep its members and contributors anonymous).
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.
These “brave school districts” are suing for the right to discriminate freely against their LGBTQ students.
The Mistakes
But, as noted above, these brave school districts and their legal representatives have run into trouble.
Sarah Boden at Spotlight PA, noted one specific example of the errors in the brief:
One quote in the brief was attributed to Bayada Nurses, Inc. v. the Commonwealth of Pennsylvania, Department of Labor and Industry, a 2010 ruling from the state Supreme Court. The brief reads, “agencies ‘may not, under the guise of interpretation, enlarge a statute or engraft additional substantive requirements not included by the General Assembly.’”
This quote appears nowhere in the Supreme Court’s opinion.
WESA quoted Wolf, “You cite the Popowsky case for a proposition and a quote that does not exist, and that case is not even on point to this case.”
Breth and King were caught flat-footed in front of the panel of Wolf and six other judges. Breth told the court that the brief had been written through a “collaborative process” including various colleagues. “This is very embarrassing. It is a very significant issue,” he told the court.
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DMKCG responded to Spotlight PA’s request for comment by noting that it would be inappropriate to comment pending the court’s decision about allowing a corrected brief.
Responding to WESA in December, King said, “We don’t draft briefs using AI,” and then added: “I’m not a lawyer that would even know how to use [AI]. Neither is Tom Breth.” King also told WESA, “To the extent that any human error was made, I’m happy to correct it.”
King indicated that his firm runs briefs through “software” that verifies the accuracy of citations. If that is the case, the “software” appears to have failed spectacularly here.
King and Breth do not admit to any AI involvement in crafting the brief, but the errors certainly match the pattern of other AI legal errors. There have been high-profile examples, such as the federal case involving MyPillow CEO Mike Lindell where lawyers were fined for using AI that fabricated cases and citations. There are also low-profile cases, such as district justices retracting court orders after discovering their decisions were based on quotes and case law fabricated by AI.
Damien Charlotin runs a webpage that tracks cases in which AI has fabricated materials, and shows 13 such cases in Pennsylvania, including the case involving bidding for construction work at Bucks County Community College. Nine of the thirteen cases involve AI used by a litigant serving as their own lawyer, so perhaps their assumption that AI will let them operate just like a real lawyer is understandable.
But one would hope that lawyers with decades of experience at an established law firm would know better.
Meanwhile, the Supreme Court will consider the legality of trans athlete bans for school sports. That decision may have ramifications for the issues being considered in the Pennsylvania case. Here’s hoping nobody submits AI fabrications to the Supreme Court.
