LGBTQ+ seniors have often encountered legal obstacles due to the lack of both recognition and protection of their relationships and identities. These obstacles have included the denial of pension benefits for partners, lack of decision-making power regarding healthcare for partners, and insufficient housing rights. LGBTQ+ seniors have also experienced discrimination when seeking elder care services. Many facilities are still unprepared or unwilling to support LGBTQ+ adults. Past years have seen some advancements that impact elder law for the community, such as the landmark ruling that legalized same-sex marriage in the United States. But the journey has not been without challenges. The legal landscape for LGBTQ+ seniors continues to reflect both past struggles and hard-earned victories.
Advancements in Elder Law for the LGBTQ+ Community
A number of recent legal advancements have benefitted LGBTQ+ seniors. With the Patient Self Determination Act of 1990, federal law mandated that healthcare institutions inform LGBTQ+ seniors of their rights, including their right to appoint a healthcare proxy.
The Obergefell v. Hodges decision in 2015, which mandated the recognition of same-sex marriages across the country, impacted inheritance rights for the community. Unlike previous years, LGBTQ+ people can now inherit property from their deceased spouse without having to pay excessive taxes.
Also, the Consolidated Omnibus Budget Reconciliation Act (COBRA) has allowed same-sex partners to access a partner’s employer-based insurance benefits as qualified beneficiaries. Although initially not inclusive, applications of the act have changed over time, especially after Obergefell, in ways that have benefitted LGBTQ+ older adults.
Anti-discrimination protection for LGBTQ+ seniors has improved over time. For example, the Fair Housing Act of 1968 didn’t originally cover sexual orientation or gender identity in terms of housing discrimination. But in 2012, the Department of Housing and Urban Development clarified that LGBTQ+ discrimination falls under its definition of “sex discrimination”, thus extending protections to LGBTQ+ seniors seeking housing.
The Affordable Care Act (ACA) of 2010 includes provisions that prohibit discrimination based on gender identity and sex stereotyping in health programs. This extends to care facilities as well.
A significant development in 2020 was the Bostock v. Clayton County decision by the U.S. Supreme Court. It ruled that the Title VII prohibition against employment discrimination based on sex also covers orientation and gender identity. Although it primarily focused on employment, this ruling has implications for areas that affect seniors, such as employment practices within care.
At the state level, specific protections have been enacted through laws like California’s SB 219, passed in 2017. This bill ensures that long-term care facilities can’t discriminate based on orientation, gender identity, gender expression, or HIV status—creating a safer environment for LGBTQ+ seniors.
Spokane’s Progressive Approach to Elder LGBTQ+ Rights
Enacted in 1999, Spokane’s Human Rights Ordinance has safeguarded residents from sexual-orientation-based discrimination in employment, housing and public accommodations. This has ensured that LGBTQ+ seniors get access to housing and services without facing prejudice.
More recently, Spokane’s City Council showed support in 2019 for encouraging developers to create housing projects specifically designed for the needs of LGBTQ+ seniors. Local groups like the Spokane LGBTQ+ Seniors of the Inland Northwest have helped support Spokane’s LGBTQ+ elders, offering activities, resources, and advocacy for members of the community. They collaborate with experts to organize workshops on topics like rights awareness, estate planning, and healthcare decisions that are specifically relevant to LGBTQ+ seniors.
Persistent Challenges Facing LGBTQ+ Seniors
Despite progress, LGBTQ+ seniors continue to confront challenges. Discrimination persists, with a 2020 report by the Movement Advancement Project highlighting that 34% of LGBTQ+ elders fear disclosing their identity in healthcare environments, resulting in delayed or inadequate care.
Discrimination and bias have also made it difficult for LGBTQ+ older people to find safe and affordable housing. In 2014, 48% of same-sex couples experienced adverse treatment when seeking senior housing. Nearly one-quarter, or 23%, of transgender individuals report having experienced some form of housing discrimination. Due to the lack of protections for LGBTQ+ people, those who are aging often have experienced unstable housing and a lack of housing resources.
As a result of experiencing discrimination throughout their lives, LGBTQ+ older adults may have lower lifetime earnings and Social Security payments. Additionally, one-third of LGBTQ+ elders live at or below 200% of the federal poverty level. Difficulties attaining financial security throughout life can lead to significant issues in later years. and the unique issues faced by LGBTQ+ older adults can be exacerbated by financial insecurity.
Legally, while the Obergefell v. Hodges decision granted marriage rights, not all LGBTQ+ seniors in long-term relationships have chosen to marry. As a consequence, they might not automatically enjoy the same partner rights in healthcare decisions or estate inheritances, necessitating complex legal arrangements.
Pension issues also loom large. For instance, if an LGBTQ+ senior worked at a company before the recognition of same-sex marriages and their pension plan provided benefits based on marital status, they might face obstacles in transferring pension benefits to their partner, even after they retire.
Elder care facilities, too, pose challenges. The National Senior Citizens Law Center’s 2011 survey indicated that nearly 90% of senior LGBTQ+ respondents felt staff at senior housing facilities would discriminate against LGBTQ+ residents. Such perceptions underscore the need for more LGBTQ+-inclusive training and awareness programs in elder care institutions.
How an Experienced LGBTQ+ Elder Law Attorney Can Help
For LGBTQ+ seniors, hiring an attorney familiar with the unique challenges facing the community can be a huge help. An experienced LGBTQ+ elder law attorney can help an LGBTQ+ senior ensure that past joint assets are properly protected and transferred. They can also advise on pension rights and transferring benefits to a partner from a time before marriage equality while helping prevent unintentional financial loss or legal hurdles. An experienced attorney specializing in LGBTQ+ elder law can also help craft healthcare proxies, wills, or housing agreements that best represent an individual’s wishes and rights, ensuring peace of mind and reducing potential future disputes.
Reach Out to Legacy Law Group
If you need help with long-term care planning and have questions about it, you can contact the estate planning attorneys at Legacy Law Group in Eastern Washington, Spokane Valley, and Spokane itself. Get in touch with us at (509) 315-8087.