By Senator Scott Wiener–
When you’re a public official, occasionally an idea comes along that’s so obvious and so necessary that all you can do is stop and think, “How has no one done this before?”
That’s how I felt about the first LGBTQ Long-Term Care Facility Residents’ Bill of Rights (also known as SB 219 and the LGBTQ Seniors Bill of Rights), which we passed in San Francisco as a first-in-the-nation effort we then got signed into law statewide in 2017. This law grew out of a community working group we created to study the needs of LGBTQ seniors. I was honored to work with that group on this and related policy proposals.
LGBTQ seniors face a variety of unique challenges, including discrimination in long-term care facilities that poses serious risks to their health and safety. Moreover, LGBTQ seniors are less likely to have adult children to look after them, more likely to have lost parts or all of their social networks during the HIV crisis, and less likely to have a broadly supportive family network.
For me, the need to protect aging LGBTQ people from discrimination was so obvious, I couldn’t believe that such protections weren’t already on the books. Protecting aging LGBTQ people is a moral imperative—those currently in long-term care facilities are part of the generation that fought and won the protection and acceptance that so many LGBTQ people enjoy today. It’s also a deeply practical concern—the number of LGBTQ adults over 50 in the U.S. is expected to double by 2030 (https://tinyurl.com/2p9ejw52), and a just elder care system must adapt to their unique needs.
Since we began this work a decade ago, California’s LGBTQ Seniors Bill of Rights has grown into a nationwide movement, championed by the White House and replicated by states and municipalities across the country. Yet progress is rarely linear, and even here in California, these protections are under attack as the forces of bigotry and ignorance challenge them in the courts. Even as the need for these protections is becoming widely accepted, it’s critical that we keep pushing to expand them in the face of rising anti-LGBTQ bigotry.
SB 219 Outlawed Discrimination Against LGBTQ Seniors in Long-Term Care
For decades, discrimination against LGBTQ seniors was the norm in long-term care. A 2011 study ( https://tinyurl.com/ej3w629u ) found that 89% of respondents believed caretakers would discriminate against them for being LGBTQ—and 43% personally witnessed or experienced mistreatment of LGBT seniors.
SB 219 clarified for the first time which actions constitute unlawful discrimination against LGBTQ people. It covers refusing to use a resident’s preferred name or pronoun, denying admission to a long-term care facility, transferring or refusing to transfer a resident within a facility or to another facility, or evicting or involuntarily discharging a resident from a facility, on the basis of a person’s actual or perceived sexual orientation, gender, gender identity, gender expression, or HIV status. Facilities are also required to post notices about these forms of discrimination wherever nondiscrimination notices are currently posted.
Under SB 219, facilities that discriminate against LGBTQ people in any of these ways can be reported to the California Department of Social Services. The Department can issue a range of penalties depending on the seriousness of the infraction.
Shedding Light on the Abuse LGBTQ Seniors Face
While it’s important that facilities face real consequences for discriminatory actions, the real power of SB 219 is the clarity it brings facilities and allies on the standards by which LGBTQ people are to be treated.
Before SB 219, a facility may not have known that refusing to use a patient’s preferred name and pronoun was discriminatory. But with the law on the books, the facility has the clarity to train its workers to treat LGBTQ residents with the respect they deserve.
Even more important, the bill gives allies a tool to advocate for LGBTQ residents to be treated with respect. For example, an East Bay trans woman was being treated disrespectfully by staff at her facility, and because of a cognitive disability she had difficulty advocating for herself. The woman’s conservator was able to use SB 219 to advocate for her with the facility, and the issue was resolved. Across the state, the law has been yielding hundreds of wins like these even without needing to escalate to a formal complaint.
We’re still far from a world free from discrimination—a 2022 survey found that 85 percent of all LGBTQ adults over 45 fear the impact of discrimination on them as they age (https://tinyurl.com/2xw4tj8h). But with protections on the books, we have more tools to work with than ever before.
Where California Leads, The Nation Follows
As so often happens, other cities, states, and even the federal government have begun to follow California’s lead. Washington, D.C., Montgomery County, Maryland, and New Jersey have all passed versions of the LGBTQ Seniors Bill of Rights. There is even a version of the LGBTQ Seniors Bill of Rights in Congress, though with Republicans in control of the House there is little prospect that the bill will advance for now.
Meanwhile, President Biden issued an executive order during Pride Month last year that calls for the U.S. Department of Social Services to issue its own Bill of Rights for LGBTQ Older Adults (https://tinyurl.com/2p9c4xvm). We’re still waiting to see what the Department will come up with—strong and robust rules from them could extend protections to millions of LGBTQ seniors overnight.
LGBTQ Seniors’ Rights Are Under Attack
As much as we’ve won with this remarkable bill, the fight to protect LGBTQ seniors from discrimination is far from finished.
In a case that’s currently pending before the California Supreme Court, right-wing activists are using bogus free speech arguments to sue the state of California to challenge the provisions of SB 219 that protect residents from a facility’s refusal to use their preferred name and pronouns. The case is called Taking Offense v. California, and we’re hoping for a verdict in our favor soon.
Similarly, while President Biden’s executive order sets an important precedent, it could be undone by a future administration antagonistic to LGBTQ rights.
In many ways, these threats highlight the importance of passing SB 219 and the other LGBTQ Seniors Bill of Rights. There will always be bigots out there willing to use the law to enable hate and discrimination, and we’re much better off with some protections on the books.
But they also show that, as with any right, we must continue to advocate for LGBTQ seniors to be protected from discrimination. Our silence is their invitation to act, so it’s important that we continue to raise awareness around these issues, elect LGBTQ champions, and advocate with our federal representatives.
Senator Scott Wiener represents San Francisco and northern San Mateo County in the California State Senate. Before his election to the Senate, Senator Wiener served as a member of the San Francisco Board of Supervisors, representing the district previously represented by Harvey Milk. He also served in a number of community leadership roles, including co-chair of the San Francisco LGBT Community Center and on the national Board of Directors of the Human Rights Campaign. Senator Wiener has lived in San Francisco’s Castro neighborhood since 1997.
Special Section Aging in Community by Dr. Marcy Adelman
Published on May 4, 2023
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