As individuals and advocacy groups push to advance the rights of LGBT citizens across the nation, a frequently overlooked area is the discrimination that older gay residents can face when they have to check into nursing homes for short- and long-term care.As the generation of civil rights heroes who marched and fought for equal rights in the 1960s grows older and faces the health problems associated with ageing, a new frontier opens in the battle for the right to live with dignity and receive equal treatment under the law.
“There’s no federal law that prohibits LGBT discrimination,” says Shannon Minter, legal director at the National centre for Lesbian Rights. “There are facilities that normally would accommodate people who are married or in a relationship, but are reluctant to do that for a same-sex couple. And there are big issues with facilities respecting the identity of transgender people.”
Compounding the problem, elderly LGBT people are less likely to have family members to look out for them due to rejection or lack of acceptance. They are also less likely to have children or direct descendants advocating on their behalf, creating a population that can be lonely, isolated and all the more vulnerable to discrimination.
Wills and Paperwork
The best way to avoid getting caught in a bad situation, advocates say, is proper planning.
“We have really stressed to our community how important it is that our people have all their paperwork in order, and people have wills, and power of attorney for finances and medical care, so if you become ill or incapacitated and can’t make decisions for yourself, it will be very clear who you have authorised to visit you and make decisions on your behalf,” Minter says.
Unfortunately, he says, facilities often disregard the paperwork entirely. “That was a real shock to me,” says the attorney, citing a situation in Florida where medical officials ignored the partner of a woman who was improperly placed in hospice care, even though the partner was the designated power of attorney. “Even standing there on site with paperwork in hand, they would not let her make medical decisions,” Minter says. “Two attorneys from our office were right there saying, ‘You are breaking the law, stop it.’ We had to go to court to get her out of this facility. That is typical of what we’re finding.”
Beyond the proper paperwork, LGBT elders need advocates on their side to make sure their rights are protected.
“You need to have a network of friends who are willing to go with you to the facility to be sure that your wishes are honored and respected,” Minter says. “I strongly advise anyone who can afford to do so, have an attorney on retainer. Don’t wait for a problem to emerge.”
There are laws that can protect LGBT elders in homes, but legal recourse depends on what state the facility is in. Sixteen states plus Washington, D.C., ban discrimination based on sexual orientation and gender expression/identity, while another five ban discrimination based on orientation only, according to the National Gay and Lesbian Task Force.
And there is the federal Nursing Home Reform Act, which doesn’t address discrimination but does mandate that facilities which accept Medicare or Medicaid “provide services and activities to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.” The Act also bans abuse, seclusion and neglect. Like any laws, the state and federal protections are only as good as their enforcement.
Of course, it’s always better to head off a problem before it occurs. “If you’re an isolated elder, it’s sort of cold comfort to say get a lawyer and sue,” says Nancy Knauer, a law professor at Temple University who focuses on LGBT elder law. Instead, whenever possible she urges people who need care to seek out facilities that market themselves as LGBT friendly, with appropriate non-discrimination policies and cultural competencies.
“We’re talking about where you live, and where you receive your medical care and assistance,” Knauer says. “Imagine when it’s discrimination you can’t get away from.”
For untold numbers, such is reality. “For every person who’s willing to speak up, there are thousands who are not and who are being horribly mistreated,” says Minter. “It’s a crisis.”
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