Ellie Holzman, JD Anticipated May 2023, Law & Public Policy Scholar
Over the past several decades, the LGBTQ rights movement has secured several historical wins for their community. There are a number of accomplishments from the late 20th and early 21st century that stand out. The U.S. Supreme Court has decided landmark cases in favor of LGBTQ rights, such as invalidating anti-sodomy laws, upholding the right to same-sex marriage, and reading “sex” for purposes of Title VII of the Civil Rights Act of 1964 to include sexual orientation and gender identity. Given these significant advancements, it is unsurprising that the general public may view the fight for LGBTQ rights as a thing of the past, or at least, not as pressing of an issue as it once was. After all, trans women are being cast as major characters in popular television shows, and performers like Lil Nas X, an openly Queer Black man, have millions of followers on social media.
Yet, despite these major U.S. Supreme Court decisions, there are still more legal battles that lie ahead to ensure that existing protections remain in place. Even more concerning, marginalized subsets of the LGBTQ community who are less sympathetic to legislators and the general public alike are left without any protections at all. While white, middle-class, young, cis-gender LGBTQ individuals may feel safer living as their authentic selves than they did just decades ago, those with intersecting marginalized identities have a long way to go before they are protected at the same level. One particularly vulnerable group are LGBTQ older adults, who are currently at risk for discrimination and abuse in long-term care facilities without any means of legal recourse. Existing federal and state LGBTQ protections have failed to address the unique vulnerability of LGBTQ older adults. As such, it is time for federal, state, and municipal LGBTQ advocates to address these gaps in protections by implementing a Long-Term Care Bill of Rights (BOR).
Federal and State LGBTQ Protections
The extent to which an individual is protected against discrimination based on their LGBTQ identity depends heavily on the jurisdiction where they live, as well as the context within which they are alleging discrimination. At the federal level, the broadest LGBTQ anti-discrimination protections are provided by the U.S. Supreme Court decision in Bostock v. Clayton, which held that the prohibition of sex discrimination in employment provided by Title VII of the Civil Rights Act includes discrimination based on sexual orientation and gender identity, in addition to biological sex. Beyond the Bostock decision, other forms of federal LGBTQ anti-discrimination protections are limited both in number and scope.
For those fortunate enough to live in progressive states, more extensive LGBTQ protections may be available beyond what is provided at the federal level. For instance, public accommodation, housing, education, and employment are the most common spaces in which some states have explicit LGBTQ anti-discrimination legislation.Nearly half of states, such as California, have enacted legislation that protects individuals from discrimination on the basis of sexual orientation and gender identity in employment, housing, and public accommodations. States with this level of protection are among those with the most robust LGBTQ anti-discrimination legislation.
Protections for LGBTQ Older Adults
Still, some sub-populations of the LGBTQ community like the elderly have less protection against discrimination on both the federal and state levels. Even states with the most extensive anti-discrimination LGBTQ protections have gaps in their legislative protections. For example, California has some of the country’s most extensive LGBTQ anti-discrimination protections, but these provisions are confined to spaces outside the scope of the typical older adult’s daily life. Employment, housing, and education are rarely the spaces in which older adults are regularly occupying. Furthermore, while the federal government regulates long-term care facilities which accept Medicare and Medicaid and protects those residents from abuse and neglect, there is no specific language prohibiting discrimination on the basis of sexual orientation or gender identity. As a result, LGBTQ older adults are completely unprotected when it comes to facing discrimination in long-term care facilities. Due to a variety of factors, such as limited familial support arising from legal barriers to marriage and social stigmatization, LGBTQ older adults as a population are over-represented in long-term care facilities. Additionally, while in long-term care facilities, this community faces high rates of discrimination, harassment, and abuse based on sexual orientation and gender identity from staff and their fellow residents. Without any legal protections, either from LGBTQ anti-discrimination legislation or long-term care regulations, this type of discriminatory behavior is completely legal.
So, what now? How do we protect this sub-population of the LGBTQ community who has been left behind in the movement for queer liberation? The answer is to pass a Long-Term Care BOR on the federal level to protect LGBTQ long-term care residents from discrimination, harassment, and abuse based on sexual orientation and gender identity. In 2015, San Francisco enacted the country’s first Long-Term Care BOR. Since then, California and New Jersey have passed state-wide Long-Term Care BORs, as well as the District of Columbia. A Long-Term Care BOR is a legislative document which outlines the specifically prohibited discriminatory behaviors in long-term care facilities. Similar to pre-existing state and federal long-term care facility regulations, a Long-Term Care BOR provides a guideline of residents’ rights and requirements for long-term care staff. What makes a Long-Term Care BOR distinctive from these existing federal long-term care regulations is that it targets the unique challenges that LGBTQ older adults experience in long-term care facilities. While each of the Long-Term Care BORs that have already been enacted differ slightly in language, the goal is the same: to protect LGBTQ older adults from discrimination, harassment, abuse, and neglect in long-term care facilities based on sexual orientation and gender identity. The most important sections of a Long-Term Care BOR are “Prohibited Activities,” “LGBTQ Liaison Requirement,” and “LGBTQ Training Requirement.” These sections outline prohibited discriminatory behavior and the training requirements for staff to ensure that they can appropriately assist LGBTQ residents.
LGBTQ advocates across the country should push for the enactment of a Long-Term Care BOR which would specifically protect LGBTQ older adults from discrimination, harassment, and abuse in long-term care facilities based on their LGBTQ identities. Ideally, a Long-Term Care BOR would be passed at the federal level, as this would guarantee protections for LGBTQ older adults even in less progressive states. Yet, given the current political landscape in Congress, this is unlikely. Therefore, passing Long-Term Care BORs at the state and municipal levels is both a realistic goal, and one that would still improve the lives of countless LGBTQ older adults. As this population continues to grow, there is an immediate need to enact formal protections for LGBTQ residents of long-term care residents in order to ensure their dignity, health, safety, and well-being.