PHILADELPHIA — A conservative legal group representing Pennsylvania school districts and parents has sued Pennsylvania over rules barring discrimination based on gender identity — arguing the state illegally expanded the definition of sex.

In a lawsuit filed last week in Pennsylvania’s Commonwealth Court, the plaintiffs — including a Perkiomen Valley school board member and two other Philadelphia-area parents — say the Pennsylvania Human Relations Commission didn’t have the authority to amend its regulations in 2023 to specify that sex discrimination includes discrimination based on gender identity and sexual orientation.

“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,” said Thomas W. King III, a lawyer based in Butler, Pa., who is special counsel for the Thomas More Society representing the plaintiffs in the suit against the PHRC and Gov. Josh Shapiro’s office.

King said the commission’s rules were “a blatant example of government bureaucrats overstepping their authority to push gender ideology.”

Advocates for LGBTQ students have pointed to the PHRC rules while advising schools that they must continue to protect the rights of transgender students, despite executive orders from President Donald Trump declaring that the country will only recognize two sexes and promising to rescind federal funds from educational institutions “that deprive women and girls of fair athletic opportunities.”

At an unrelated news conference in York County on Tuesday, Shapiro said he had not read the lawsuit. But, he said, he is committed to Pennsylvania’s founding principle to be “warm and welcoming for all, including for people in the LGBTQ+ community.”

”I understand that there are those who want to try and score cheap political points by bullying a trans kid or making it harder for someone to marry who they love,” Shapiro said. “That’s just not where I am, and that’s certainly not where I think the vast majority of Pennsylvanians are.”

Here’s what to know about the case, and what it could mean for transgender students in Pennsylvania:

What does the lawsuit say?

The lawsuit objects to rules adopted in 2023 for the Pennsylvania Human Relations Act, which bars discrimination based on sex and other factors like race and religion. The 2023 changes said the term “sex” can apply to pregnancy; sex assigned at birth; “gender, including a person’s gender identity or gender expression”; “affectional or sexual orientation, including heterosexuality, homosexuality, bisexuality and asexuality;” and “differences of sex development, variations of sex characteristics or other intersex characteristics.” The language was approved by House and Senate committees, and the state attorney general.

But the plaintiffs allege the commission usurped the role of Pennsylvania lawmakers in enacting the rules.

“We say that the definition of sex is a legislative act, and especially as it pertains to the enforcement of constitutional rights,” King said. “If the Legislature wants to change it, it can. But ... they didn’t do it, and they haven’t done it.”

King said that when the Pennsylvania Human Relations Commission was created following a law passed in 1955, sex was defined as male and female. The lawsuit cites a 2024 Pennsylvania Supreme Court decision that defined sex as “either the male or female division of a species, especially as differentiated with reference to the reproductive functions.” (In that case, the court sided with abortion-rights activists seeking to challenge a state law prohibiting the use of Medicaid funding for abortions, ruling that the law discriminates against women exercising their right to terminate a pregnancy.)

A number of laws, including the state’s school code, refer to the male and female sex, King said. As a result, he said, the PHRC rules conflict with school boards’ abilities to follow that code, including by maintaining bathrooms and athletic teams separated by sex.

Who’s behind the lawsuit?

Among the plaintiffs are Jason Saylor, a school board member in Perkiomen Valley, who had favored restricting transgender students in that district from using bathrooms aligned with their gender identities. Other local plaintiffs include parents Beth Ann Rosica of Chester County, and Alexandra Pasternak of Delaware County.

King said the parents in the case “support separate facilities for males and females: bathroom-wise, sports-wise, locker room-wise.”

Two western Pennsylvania school districts — South Side Area and Knoch — are also plaintiffs, as are two members of the Pennsylvania House of Representatives, Barb Gleim (R., Cumberland) and Aaron Bernstine, R., Butler. (Gleim, who has sponsored bills seeking to bar students “of the male sex” from participating on girls’ sports teams, was one of several Pennsylvania lawmakers at the White House last month as Trump signed an order on “Keeping Men Out of Women’s Sports.”)

King said the two school districts are paying for part of the case, while the Thomas More Society — a Chicago group that has represented anti-abortion activists — will fund the remainder.

Can this legal argument succeed?

King has brought similar challenges against Pennsylvania before. In 2021, he won a lawsuit on behalf of Republican lawmakers to overturn the state’s mask mandate, arguing that then-Gov. Tom Wolf’s administration had failed to follow the proper rule-making process to enact the requirement.

He also represented western Pennsylvania districts, parents, and teachers in a lawsuit challenging Pennsylvania’s “culturally relevant” teaching guidelines, again on the basis they weren’t enacted properly. The Department of Education in November agreed to rescind the guidelines and replaced them with a new framework.

How could transgender students be affected?

King noted that the PHRC rules have served as a basis for arguments in favor of schools continuing to permit transgender students to play on sports teams matching their gender identities, including in a recent letter from advocacy groups accusing the Pennsylvania Interscholastic Athletic Association of taking an unlawful position on transgender athletes.

But they haven’t been the only legal justification cited by schools. In defending the rights of a transgender female student to participate in girls’ track, the Colonial School District earlier this month pointed to a 2018 federal court ruling in favor of the Boyertown Area School District, upholding that district’s policy to allow transgender students to use bathrooms aligned with their gender identities.

Kristina Moon, senior attorney with the Education Law Center, said the PHRC’s rules were “consistent with federal law and with state courts’ interpretation of sex discrimination.” She noted a 2018 decision that — even before the PHRC adopted the new definition of sex — found the Philadelphia school district liable under the Pennsylvania Human Relations Act for failing to stop harassment of a student based on their gender presentation.

Still, the PHRC’s enforcement of the challenged rules is “a critical tool to ensure our schools are safe and affirming for all children,” Moon said.

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Staff writer Gillian McGoldrick contributed to this article.

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