The PDF for the issue in which this article appears can be found here.
On May 16, a leading advocacy group for LGBT older adults, SAGE, announced a new nationwide advocacy campaign, “Care Can’t Wait,” to rally support for LGBT elders whose access to care and services may be threatened by recent initiatives to shield care providers and businesses that claim that their religious beliefs require that they shun LGBT people. The campaign asks care providers, people of faith, and “all who believe in caring for our community members,” to take a pledge to stand with LGBT elders.
SAGE launched the Care Can’t Wait campaign in advance of the Supreme Court’s recent ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission where a baker appealed an adverse decision by the Colorado Civil Rights Commission, arguing that his religious beliefs created a constitutional right to refuse to sell a wedding cake to a same-sex couple. SAGE’s leaders feared that applying this logic to retirement communities could have a devastating impact on the quality of life for LGBT older adults in long-term care settings since an estimated 85 percent of nonprofit continuing-care retirement communities are affiliated with a religious institution.
Further goads to action were recent national studies that found that roughly half of LGBT elders fear discrimination in healthcare, and, at least 48 percent of same-sex couples have experienced discrimination when applying for senior housing. The recent establishment of the Conscience and Religious Freedom Division at the Department of Health and Human Services this year may represent an attempt to shield medical providers who wish to deny care based on religious or moral beliefs.
This is part of a larger issue. Even mainstream aging services that are committed to treating everyone equally often fail to do proper outreach to the LGBT community or to effectively address acts of discrimination by their staff members or residents. This makes LGBT people reluctant to access mainstream aging services and leads them to become isolated and less resilient.
SAGE’s Chief Operating Officer, Michael Adams, kindly answered questions about the Care Can’t Wait Campaign and the Masterpiece Cakeshop decision.
BIFOCAL: What motivated you to create the Care Can’t Wait campaign?
MR. ADAMS: SAGE created the Care Can’t Wait campaign because religious-based discrimination poses a grave threat to LGBT elders. We want to shine a spotlight on this threat, and to build a movement of concerned individuals who oppose this discrimination and instead commit to support respectful and inclusive care for our elders.
BIFOCAL: How widespread is the discrimination affecting access to care for the LGBT community?
MR. ADAMS: Discrimination against LGBT elders in need of services and care is widespread and needs to be reduced and eliminated, not justified or encouraged based on religion. As just one example, a study by the Equal Rights Center released in 2014 found that 48% of LGBT elders applying for senior housing were subjected to discrimination. A recent AARP survey found that roughly half of LGBT older people fear discrimination in health care as they age, while 34 percent of LGBT elders are concerned that they will have to hide their identity in order to access suitable housing. This has huge implications as LGBT elders seek the services and care they need to live their best lives.
BIFOCAL: What do you hope the campaign will accomplish?
MR. ADAMS: We hope Care Can’t Wait will accomplish the same things that SAGE’s We Refuse to Be Invisible campaign accomplished last year –increase awareness of a dangerous threat of discrimination against LGBT elders, build a critical mass of opposition to this discrimination and support for our elders, and convince the Administration and others who are pushing to authorize religious-based discrimination to reverse course.
BIFOCAL: What can elder lawyers do right now to support the civil rights of LGBT people?
MR. ADAMS: Elder lawyers can support SAGE’s cause by educating themselves on the concerns of LGBT elders so that they can effectively address those concerns for their LGBT clients. To learn more about these concerns, elder lawyers can visit our website at www.sageusa.org or our National Resource Center on LGBT Aging’s legal resources section at www.lgbtagingcenter.org.
In the long-term, elder lawyers can work closely with their LGBT clients to make sure they do legal planning appropriate to their needs. Elder lawyers can make sure to refer their LGBT clients to organizations like SAGE for resources, or to legal organizations like Lambda Legal and the National Center for Lesbian Rights if they are facing discrimination. Also, elder lawyers are well-positioned to be persuasive advocates for policy changes that would improve the lives of LGBT elders. For example, research shows that 48% of LGBT elders face discrimination when they apply for senior housing; elder lawyers know how devastating that discrimination can be, and can be powerful voices for the enactment of anti-discrimination protections to prevent it.
BIFOCAL: What is your assessment of the Supreme Court’s ruling in the Masterpiece Cakeshop case?
MR. ADAMS: While we are concerned with the Supreme Court’s decision and the dangers posed to LGBT elders, it is clear from the ruling that there is not a license to discriminate, and that civil rights laws still apply to businesses open to the public. Having said that, we already know that LGBT elders already face widespread discrimination in housing, services, and long-term care. So, SAGE will continue to do everything in our power to ensure that LGBT elders, and all Americans, are treated fairly, and encourage all elder law attorneys to do the same. As with so many other issues, the implications of the Court’s decision will likely be contested for years to come.
On the advocacy side, our national SAGECare training and credentialing program will become even more important for both care providers and LGBT elders themselves. The training will show providers why their mission is better served by culturally competent care than discrimination. The credentialing will help LGBT elders know which care providers to use and which to avoid. And, in a worst-case scenario, if we see a rise in discrimination by faith-based service providers as a result of a pro-discrimination Supreme Court decision, the culturally competent and respectful services provided by organizations like SAGE will become that much more important for LGBT elders.
BIFOCAL: Why was a wedding cake chosen to test this issue? Why not something more high stakes such as refusal to provide care?
MR. ADAMS: Issues that end up at the Supreme Court often aren’t the result of well-honed strategies that pick the best possible test case. When it comes to discrimination, what rises up first depends on where the bias starts to manifest and who feels most passionately about refusing to be a victim of discrimination. In this case, as marriage equality became the law of the land we started seeing a backlash against same-sex couples and a decision by some to refuse to serve them. It’s not surprising that a couple who is refused service by a business that is serving everybody else would decide not to accept that and to challenge that in the courts. No American should have to face that kind of discrimination. Recognizing that the facts of this case are about a wedding cake, it’s our job as advocates to make sure the Supreme Court understands the potential broader implications. That’s why SAGE joined the American Society on Aging in filing an amicus brief in Masterpiece Cakeshop that educates the Court to the potential threat to vulnerable LGBT elders who need care, given that 85% of long-term care providers in this country are religiously affiliated.
BIFOCAL: What mistakes do lawyers make when dealing with LGBT clients?
MR. ADAMS: The biggest mistake lawyers make when dealing with LGBT clients is to assume that they are not LGBT, or to assume that the fact that they are LGBT is irrelevant to their legal needs and therefore to fail to ascertain how their LGBT clients’ lives may be different and require different legal support. Fortunately, we are making significant progress on this front as more and more lawyers avail themselves of the resources at their disposal to learn how to work with LGBT clients in an effective and respectful manner.
BIFOCAL: For senior care professionals, are there certain common questions that well-meaning care providers ask that backfire? Are there routine questions that need to be avoided or rephrased?
MR. ADAMS: For elder care professionals, the fundamental need is to provide person-centered care to every individual. The only way to provide person-centered care for LGBT people is to recognize and respect that they are LGBT – that their lives can be different in a variety of ways, and that care and services must be adapted to address those differences in a respectful way. The most important things that need to be avoided aren’t so much questions, but behaviors rooted in bias and presumptions that all persons in care are or should be heterosexual. What we know from experience is that for many marginalized communities, preferred terms and language changes over time as cultural understandings advance — it’s one of many reasons why it’s important for providers to make cultural competency training available to their staff on an ongoing basis. The only questions that need to be avoided are questions that reflect bias, questions that reflect a failure to get educated about respectful dialogue, and questions that are irrelevant to an individual’s care and needs.
In SAGE’s experience, providers sometimes use misplaced concerns about individual privacy or discomfort as a way of avoiding questions that in fact should be asked. For example, all providers should ask care recipients about their sexual orientation and gender identity, in the same way they ask about other demographics and matters that may be relevant to their care. There are great resources available to train providers in how to ask those questions in a respectful and effective manner. In fact, SAGE’s National Resource Center on LGBT Aging has a great guide called Inclusive Questions for Older Adults: A Practical Guide to Collecting Data on Sexual Orientation and Gender Identity. This guide helps service providers ask questions about sexual orientation and gender identity in safe and respectful ways by relying on research, real-world knowledge, and experience.
BIFOCAL: Is there a difference in the way Elder Lawyers should deal with issues such as:
a. End of life decision making
b. Estate Planning
MR. ADAMS: This depends on the circumstances and desires of the individual LGBT client. Often those circumstances and desires are shaped by distinct social realities. For example, relative to older Americans in general, LGBT elders are twice as likely to be single and four times less likely to be parents. They are more likely to be disconnected from their families of origin and more likely to rely on caregivers who are not family members in the traditional sense. Because these realities apply to the lives of many (but not all) LGBT elder clients, they have obvious implications for estate planning and end of life decision-making. These factors can potentially impact a client’s thinking about end of life issues – who is available as an alternate decision-maker, who needs to be considered in estate planning, etc. The key is for the elder lawyer to fully understand their LGBT clients’ lives and needs by learning more about the issues that LGBT elders face.
BIFOCAL: How can lawyers, policy makers and care providers educate themselves so that they can better serve their LGBT clients?
MR. ADAMS: I strongly encourage people to read up on issues concerning LGBT elders. As mentioned above, SAGE’s National Resource Center on LGBT Aging is a resource library of all things LGBT aging related, and can be found at www.lgbtagingcenter.org. Besides visiting SAGE on the web, sister organizations like Lambda Legal and National Center for Lesbian Rights have pages on legal issues and LGBT aging. AARP also recently released a great study on LGBT aging in America. There is a lot of information out there that needs to be digested. Fortunately, more and more care and service providers are recognizing that they have a responsibility to provide respectful care to all elders, including those who are LGBT, and are taking advantage of our SAGECare training and other resources offered by organizations like SAGE that help providers lean into that responsibility.
More information is available at SAGE's web site, www.sageusa.org.