In the Struggle for Equality, We Choose Dignity and Respect

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

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For more than a decade, the ACLU of Pennsylvania has advocated for protections from discrimination for gay and transgender Pennsylvanians. We have always known that the opposition would get uglier as we got closer to passage. And now that we have a coalition of business and academic interests at our back called Pennsylvania Competes and some of the most prominent members of the General Assembly in support, “the antis” – in the parlance of advocates- have sunk to their lowest level yet, as was inevitable.

The Pennsylvania Fairness Act- House Bill 1510 and Senate Bill 974- amends the commonwealth’s non-discrimination law to include sexual orientation and gender identity or expression as protected classes in employment, housing, and public services. It levels the playing field for gay and transgender Pennsylvanians. We’re the only state in the northeast that does not have some form of this protection.

A few weeks ago the Pennsylvania Family Institute- the state’s leading anti-gay, anti-trans, anti-woman advocacy group- launched a new campaign called “defend my privacy” that claims that the Pennsylvania Fairness Act would make it illegal to have gender-specific public restrooms. That’s not a joke and it’s not from The Onion. That’s actually what they say.

The areas in which the Pennsylvania Human Relations Act provides protection from discrimination include “public accommodations.” This means that people cannot be denied services based on the protected classes in the act. Think of an interracial couple being denied a wedding cake from a baker because of their race. Or a public golf course refusing to allow women to play there.

The antis have taken a bill that is intended to stop discrimination against gay and transgender people in their daily lives and twisted it into an attack on the simple act of peeing in peace. Last year Brae Carnes, a trans woman from Canada, and Michael Hughes, a trans man from Minnesota, took on the absurdity of the antis’ argument by posting pictures of themselves in public bathrooms of their assigned gender at birth.

Transgender women are women. And transgender men are men. That’s it.

At the ACLU of Pennsylvania, we share the values of privacy and public safety. In my 11 years here, I cannot think of another organization in this state that has done more to protect the right to privacy than us. The issues are too numerous to list.*

Privacy and public safety are not compromised by ensuring that people can use public services based on their gender identity. The city of Harrisburg has had an ordinance like the Pennsylvania Fairness Act for more than 30 years without complaint. If there were problems in Harrisburg or in any of the 30+ municipalities with such ordinances, I can assure you that the antis would tell us.

But the rhetoric of the antis- from the Pennsylvania Family Institute to the advocates and politicians behind recent anti-LGBT legislation in North Carolina and Mississippi- does compromise public safety. It inflames hostility toward transgender Americans. According to the FBI, hate crimes against transgender people tripled in 2014. And advocates believe the actual victimization number is much higher.

In advocating for the Pennsylvania Fairness Act, the ACLU of Pennsylvania and its allies have chosen a campaign of respect, dignity, and basic human decency. It is a shame that the people who oppose this bill cannot offer transgender Pennsylvanians the same.
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*But here are a few. Women’s reproductive healthcare, the Real ID Act, two-party consent in the state Wiretap Act, DNA collection from people not convicted of a crime, protecting data in prescription drug monitoring, the PATRIOT Act, anonymity for parents who give their biological children for adoption, access to location data gathered by EZPass. Etc., etc., etc.

Andy_Blog_HeadhshotAndy Hoover joined the ACLU of Pennsylvania in December 2004, as a community organizer and became legislative director in 2008. As the organization’s lead lobbyist, Andy largely deals with civil liberties and civil rights issues at the state capitol.

The Most Important Criminal Justice Reform Case You’ve Never Heard Of

By Mary Catherine Roper, Deputy Legal Director, ACLU of Pennsylvania

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On Wednesday, the Supreme Court of Pennsylvania (SCOPA) heard argument in Kuren v. Luzerne County, which may be the most important case you’ve never heard of. The one question before SCOPA in Kuren is whether clients of an understaffed public defender office who know their lawyers do not have time to fight for them can ask any court to protect their rights.

Like many places around the country, public defender offices in Pennsylvania are chronically underfunded and understaffed. If you are one of the 80% of people charged with a crime who cannot afford to hire a lawyer, that means you will be represented by a lawyer who has so many cases that he or she has little or no time to talk with you, no time to hunt down documents or witnesses who can help with your defense, no time to argue for a reduction in your bail or your release without bail, and no time to consider your case on an individual basis. You will see your lawyer only for a few minutes at court before your case is called – or, if you can’t make bail, through a video link while your lawyer stands in a courtroom and you sit in jail.

In most counties in Pennsylvania, your local PD office is a “plea mill.” That means that your lawyer will have no chance to investigate your case, but will bring you a deal and tell you that’s the best you will get from the prosecutor. He or she will tell you that the sentence, if you lose at trial, will be much worse, and that you will wait a year – likely in jail – for that trial, during which time you will lose your job, your home, and custody of your children.

But unlike any other state in the country, Pennsylvania has NO statewide funding for or oversight of PD offices. The local county government decides how much funding to give its PD office. Now, if Luzerne County and the Pennsylvania Commonwealth Court have their way, no court can order them to provide more resources.

In April 2012, the ACLU-PA and Dechert LLP filed suit against Luzerne County on behalf of Al Flora, Jr., who was then the Chief Public Defender of Luzerne County, and indigent criminal defendants whom the overloaded PD could not represent.

Al Flora, Jr. |  ©Marco Calderon Photography

Al Flora, Jr. | ©Marco Calderon Photography


The ACLU presented the court with huge amounts of evidence that the Luzerne County PD office couldn’t keep up with all of the people who needed help. Most of the lawyers in the PD office worked without desks, computers or even phones. The administrative staff could not even keep track of files, much less help the lawyers with investigations or client communications. Two months after we filed suit, the trial judge ordered the county to allow Flora to hire more lawyers as a first step, and to come up with a plan to deal with the “crisis” in the PD office.

Luzerne County’s “plan” to deal with the crisis? Firing Al Flora and hiring a new Chief Public Defender who tried to stop the case from moving forward.

When the ACLU continued the suit on behalf of the indigent clients who rely on the PD office, the county argued that criminal defendants aren’t allowed to file suit to protect their right to adequate representation – that as long as they have a lawyer in name, they have to wait to be convicted, then appeal their case, then file a “post-conviction relief” petition claiming their lawyer didn’t do a good enough job. The trial court agreed and dismissed the claims. The Commonwealth Court agreed and affirmed. Now it is for the Pennsylvania Supreme Court to decide.

But the court will have some help. The United States Department of Justice filed a brief with the Pennsylvania Supreme Court saying that PD clients in Pennsylvania should be able to sue to improve the PD office, just as PD clients in many other states have done. The American Bar Association also chimed in, as did the National and Pennsylvania Associations of Criminal Defense Lawyers. And the Innocence Project, which has proven the innocence of hundreds of wrongly convicted people, filed a brief saying that inadequately prepared lawyers are “the biggest factor” leading to wrongful convictions.

Al Flora lobbied the county for additional funds for two years before resorting to filing suit. If the county can fire any chief public defender who is willing to sue, and can stop PD clients from suing, then there will be no protection for the rights of thousands of poor people in Pennsylvania who are charged with crimes.

We need the PA Supreme Court to get this one right.

Mary CatherineMary Catherine Roper is the deputy legal director at the ACLU of Pennsylvania, where she coordinates litigation on a broad range of civil liberties issues, including freedom of speech, religious liberty, racial and ethnic justice, equality for lesbians and gay men, student rights, privacy, prisoners’ rights, and police misconduct.