Dissenting Opinion by
Judge Kramer :I join in the dissenting opinion by Judge Mencer and add the following comments as additional reasons for my dissent.
Section 1 of the Fourteenth Amendment to the United States Constitution reads: “All persons born or naturalized in the United States, and subject to the *673jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of any citizens of the United States; nor shall any state deprive any person of life,, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.” (Emphasis added.)
. On July 17, 1967, the Appellee School District adopted the following resolution: “Resolved that henceforth maternity leaves of absence shall not be. granted to employees of this school district; that any - employee who becomes pregnant shall resign effective not later than the end of the fifth (5th) month of the pregnancy; • ••”
As I view the above regulation, and applying it to the facts of this case, I am of the opinion that the appellant’s constitutional rights under the Fourteenth Amendment have been violated in that she was denied equal protection of the law.
It has -been stated, repeatedly that the guarantee of the equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances. See Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544, 67 L. Ed. 1112 (1923).
The Equal Protection Clause of the Fourteenth Amendment is a restriction upon the state governments and operates exclusively upon them and their agencies.. The limitations created by the Fourteenth Amendment extend to all the departments of state government and to all instrumentalities by which and through which the state acts, including a school district. This constitutional right relates to all individuals, the least deserving as well as the most virtuous, and its protective scope forbids the government to select any *674person or class of persons for the imposition of unreasonable or unlawful discrimination.
It is well settled, of course, that the state or its instrumentalities may validly classify persons and objects for the purpose of legislation, but if that classification is fanciful, capricious, arbitrary or unnatural, it must be held to be invalid. Whether or not the differences created by legislative classification are arbitrary, capricious and consequently illegal is a judicial question to be determined by the courts and not by the very governmental agencies creating the classification.
In a recent United States Supreme Court decision, Reed v. Reed (not yet reported), November 22, 1971, 40 United States Law Week 4013, Mr. Chief Justice Burger states: “A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).” A classification may never be capricious or arbitrary; but rather must be reasonable, natural and have a rational basis. It is conceivable that a classification may legally discriminate if the essence of the discrimination is unobjectionable and is founded upon reasonable basis. The test is whether the object and purpose of the law or regulation bears a fair, substantial, natural, reasonable and just relation to the classification created. See Allied Stores of Ohio, Inc. v. Bowers, Tax Commissioner, 358 U.S. 522, 3 L. Ed. 2d 480 (1959).
It has also been said that a classification must be based upon substantial distinctions which make real differences and which are germane and pertinent to the purpose of the law. See Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 91 L. Ed. 1093 (1947) and Asbury Hospital v. Cass County et al., 326 U.S. 207, 90 L. Ed. 6 (1945), Terrace et al. v. Thomp*675son, 263 U.S. 197, 68 L. Ed. 255 (1923), Truax v. Corrigan et al., 257 U.S. 312, 66 L. Ed. 254 (1921).
No one lias raised the question of discrimination between the sexes in this case; and it is not intended to be dealt with in this dissent.
I concede that a regulation made applicable to pregnant teachers, based upon testimony and evidence that the pregnant state alters their physiological or mental ability to carry out teaching and adjunct duties, could be a reasonable classification and not violative of individual constitutional rights.
A reasonable leave of absence for pregnancy causes me no concern. What does cause me concern in this case is the fact that this school district resolution terminates a teacher’s right to future employment and carves out and creates a small sub-class. The resolution impliedly recognizes at least three classes, (1) those who have reached their fifth month of a pregnancy and must resign, (2) those who are already mothers and are unaffected by the resolution, and (3) those who are less than five months pregnant and are similarly unaffected by the resolution.
The instant appellant was the mother of a daughter at the time she was initially hired and at the time her rights as a professional employee vested under the provisions of the School Code. This regulation now reclassifies her in the fifth month of pregnancy of her second child and places her in a class distinct from all other teachers who may be mothers, who may not be pregnant, or who may be pregnant less than five months. Proof of the arbitrariness and capriciousness of this regulation is made when one views a number of possible variations. What rights has a teacher if she suffers a miscarriage during her sixth month of pregnancy after the termination of all her rights as a teacher in this particular school district? What are the rights of the teacher pregnant as a result of rape? What *676are the rights of the pregnant unmarried teacher who plans to legally relinguish her rights to her child? In these situations, the reasons given by the school district in defense of the regulation are without merit.
There is testimony in this record concerning the psychological and physical abilities of pregnant teachers, however, there is not one word in this record which would make such testimony universally applicable to every pregnant teacher. Unless it can be shown that this regulation, in carrying out the purpose and objective of this school district, applies to every pregnant woman then the classification must fall.
The ultimate object and purpose of this regulation, as gleaned from the record, is to provide a better system of education for the children of this school district. My review of the record in this case leads me to conclude that it does not support the contention of the school district that this appellant would in any way hinder the education of the children of this school district if she were retained as a teacher until some point in time where she should be given a leave of absence to deliver her child, and after a reasonable time returned to her job as a teacher.
The school district complains that its experience with pregnant teachers is that a high percentage of them resign their positions after giving birth. The fact that this school district has experienced problems concerning pregnant teachers in the past is no indication that it suffers such problems with all pregnant teachers or with this particular teacher. In the absence of such proof the classification fails. The marriage of a school teacher is an analoguous situation creating problems for school boards. If a substantial percentage resign to become housewives, should we then permit a school district to terminate a teacher’s position four months before her marriage? I certainly would not, and I be*677lieve that the command of the Equal Protection Clause forbids it.
In other words, if it were proven by this School District that all teachers more than five months pregnant fail to return to work after the delivery of their child, or if the record would indicate that all such pregnant teachers experience physical or psychological limitations which adversely affect the education of children, then and only then the regulation would be reasonable and deserving of affirmance. The record proves the contrary, for this teacher was a mother when she was hired. How the school district can now argue that she is incompetent after the birth of her second child strains my imagination. This school district has arbitrarily and capriciously promulgated a regulation affecting a very restricted class. Such regulation fails when tested by. a functional analysis of the purpose and objective sought by such regulation when applied to the class. The classification attempted here is too restrictive. Appellant has been unconstitutionally discriminated against when compared with other teachers who are mothers (or who are' not mothers) and not pregnant more than five months.'
A regulation which would cause a mandatory leave of absence could be supported by a functional analysis of the purpose and object desired; but a complete termination of employment at the fifth month of pregnancy is unreasonable and arbitrary.
Although a regulation of the Pennsylvania Human Relations Commission is not binding upon this Court, I find support for the position I take in the regulation of that Commission found in the Pennsylvania Bulletin, December 19, 1970, Volume 1, No. 24, page 707, which reads as follows:
“(D) Maternity Leave.
“Employers must provide a female employee who becomes pregnant a reasonable maternity leave. Such a *678maternity leave may be a leave of absence without pay. Seniority and pension rights may or may not continue to accrue during maternity leave, but upon return to employment such rights shall not be taken from the employee because she took a maternity leave.
“Upon application for return to employment following such reasonable maternity leave, the employer shall offer the job she held before going on the leave of absence, or a substantially equivalent position (in pay and skill) if such jobs are vacant and available. If such jobs are not vacant and available, the employer shall offer her any other available position for which she is eligible until such time as the employer can through recognized placement procedures offer her the job she held before or one substantially similar to it.” This regulation of the Commission was intended to implement Title YII of the Civil Rights Act of 1964, 42 U.S.C., Section 2000 (e) -2. Although I may not be bound by the regulation of the Commission, I certainly may be guided by its interpretation of a pregnant woman’s rights under the federal and state law.
I find further support for my position in the fact that the Secretary of Education reversed the action of the school board in connection with the charge of incompetency when the Secretary stated: “The testimony in this case fails to substantiate a charge of incompetency. The appellant, although pregnant, has been teaching daily until twelve days prior to the end of the term, when she was suspended by the superintendent. The board presented no testimony indicating any physical incapacity or disability that might affect the teacher’s capabilities. ...” I am not impressed with the analysis of the lower court on the subject of incompetency. The record in this case in no way supports a finding that this appellant was not competent to continue her teaching duties after the birth of her child.
*679Based upon the above discussion, I would hold that the regulation of this school district dated July 17,1967, as quoted above, is invalid and unconstitutional and therefore I would reverse the order of the lower court.