Chapter 12 Silver Threads Inside the Rainbow: Lesbian, Gay, Bisexual, and Transgender Seniors

• Library: Estate Planning for Same-Sex Couples (ABA) (2015 Ed.)

Chapter 12 Silver Threads Inside the Rainbow: Lesbian, Gay, Bisexual, and Transgender Seniors

Lesbian, gay, bisexual, and transgender (LGBT) seniors came of age in a different era. Most kept their personal lives concealed and many are still reluctant to go public, like the gay male couple that has been together for 55 years and still refers to each other as "friends."

Even when lesbian and gay seniors feel safe they often find it necessary to return to the closet to obtain services from the heterosexual senior community and senior service providers.

UCLA's Williams Institute estimates there are 1.5 million LGBT people who are 65 and older and they expect this population to double by 2030. The U.S. Administration on Aging estimates there are 1.75 million to 4 million LGBT people who are 60 or older.¹ It is generally accepted that the actual number of LGBT seniors is impossible to establish. Regardless of the number, it is apparent there are a statistically significant number of seniors who identify as LGBT. And, these U.S. citizens are not receiving the services to which they are entitled.

The 2014 Healthcare Equality Index² reports that almost 97 percent of participating health care facilities include "sexual orientation" and "gender identity" in their patient nondiscrimination policies. That number should grow to 100 percent because the new Department of Health and Human Services (HHS) regulations governing hospitals that accept Medicare and Medicaid require that "sexual orientation" be included. As of 2011, the Joint Commission standards require all hospitals to prohibit discrimination based on sexual orientation and gender identity.³

Past surveys in New York show that many LGBT seniors find they are unwelcome at most senior centers. Many LGBT seniors face harassment and discrimination when accessing social service programs designed to assist them. Most programs developed to assist the elderly do not plan for including LGBT seniors. The staff lack training and program policies fail to address the unique needs of an aging LGBT population. This causes many LGBT seniors to avoid the programs set up to assist them. That results in these seniors being denied access to services to which they are entitled.

The problems are not limited to community programs. Discrimination and harassment also exist in senior retirement communities, nursing homes, rehabilitation facilities, and assisted living facilities.

Lesbian and gay elders who think they would not be accepted in a senior center or a government-sponsored program are unlikely to seek it out. Many LGBT seniors do not disclose their sexual orientation or gender identity to their doctors or social workers because they fear being denied services.

Few retirement communities welcome lesbian and gay seniors. Many retirement communities will not accept a lesbian or gay individual or couple. And transgender seniors are even more likely to experience exclusion and discrimination.

Gay-friendly retirement communities are a growing industry.⁴ These communities are located throughout the country and new ones are announced on a regular basis. One problem with these communities is the price. Few are designed for low- and moderate-income people. And, this prices many LGBT seniors out of the market. Other LGBT seniors are not interested in living in a gay retirement community. They prefer not to isolate themselves from the rest of the community. Still, many LGBT seniors will need to address the issue of where they will be welcomed and safe.

The Fair Housing Act prohibits discrimination. The gay-friendly developments make their nondiscrimination policy clear. Too bad the other ones do not.

The 2010 Census reports the U.S. population is 308,745,538. This is a 9.7 percent increase over the 2000 Census numbers. Almost 50 million are 62 or older. That is a 21 percent increase since 2000 and constitutes 26.4 percent of the population.⁵

A. Preparing for the Future

Lesbian and gay baby boomers need retirement, life, and estate-planning services from the legal community. Their concerns about aging include not having a safe place to live, outliving their money, worrying about who will care for them, and discrimination in health care.

Social Security survivor benefits are available to all married same-sex spouses provided they meet the requirements set by SSA for married couples and surviving spouses.

Many lesbian and gay seniors are also U.S. military veterans. That number will grow as current lesbians and gay men serving put in their 20 years of service and retire. Those veterans are entitled to military retired pay, VA health care, and other veterans benefits. And, their spouses will also be entitled to spousal benefits.

Recent rule changes now allow attorneys to represent people filing VA claims. Those lawyers are needed to help people navigate the VA morass and repel any anti-gay attitudes by staff and patients at VA hospitals. In July 2015, the U.S. Department of Defense announced it was studying whether to allow transgender persons to serve in the armed services. Until that study is completed, all potential discharges of transgender servicemembers must go through the Undersecretary of Defense. It seems the U.S. military is leaning toward removing the impediment to service for transgender individuals.

B. Public Benefits

The growing elder population will tax Medicare and Medicaid resources. And, LGBT elders will be among those claiming benefits. Contrary to popular belief, most LGBT seniors are not wealthy. Rampant employment discrimination adversely affected the income of LGBT people. Those who are now seniors do not have the resources many heterosexual couples do.

Many lesbian and gay elders are aging in silence and anonymity. No one is taking the lead in talking about or resolving this growing problem. A 2004 report, Aging in Equity,⁶ provides a good overview of the issues facing lesbian, gay, bisexual, and transgender elders.

The type of legal issues affecting older Americans is growing. These include

• Medicare and Medicaid
• Public benefits
• Social Security
• Advance directives
• Financial and physical abuse
• Discrimination by age, gender, and sexual orientation
• Long-term-care availability
• Rise in nursing home litigation
• Taxes

Healthy aging is usually seen as having access to appropriate housing, quality health care, and supportive public and private services. These are missing from the lives of most LGBT seniors.

C. Older Americans Act

The Older Americans Act,⁷ originally enacted in 1965, was last reauthorized in 2006. The law provides services for Americans over the age of 60. Congress has failed to reauthorize the Act since the last reauthorization expired in 2011. In 2014, Congress appropriated $1.88 billion to implement the statute's programs but has not yet reauthorized the Act.

The Administrative Office on Aging organizes, coordinates, and provides community-based services for older Americans and their families.

There are a variety of services provided under the Act, including home-delivered meals, health screenings and counseling, abuse protection, volunteer guardians, and legal services. In addition, eligible seniors may be able to get help with minor home repairs, yard work, housekeeping, and respite care.

The Act now includes the National Family Caregiver Support Program (NFCSP).

This program is designed to help family caregivers of older adults who are ill or who have disabilities. Two-thirds of noninstitutionalized persons rely on family and friends for assistance with daily living activities. One-quarter of seniors supplement family care with services from paid providers.

The NFCSP provides grants to state agencies on aging to work with Area Agencies on Aging, service, and community organizations to provide support services. These services include

• Information to caregivers about available services
• Assistance in gaining access to services
• Respite care
• Supplemental services to complement that care being given
• Counseling, support groups, and caregiver training

The Act also maintains the original objectives that serve to preserve the rights and dignity of older Americans. There are provisions for low-income minorities and an added focus on older individuals living in rural areas. This Act can be a source of assistance for lesbian and gay elders who remain in the community.⁸

In 2001, the federal Office on Aging recognized that the Older Americans Act was not serving lesbian and gay elders in the United States. However, Congress has not considered legislation to remedy the situation.⁹

D. Discrimination

The Employee Retirement Income Security Act (ERISA) controls pension plans. Federal law requires pension plans to protect spouses.

There is no similar requirement to protect a same-sex partner because domestic partners are not synonymous with "spouse." And, private employers used the Defense of Marriage Act to deny lesbian and gay employees the opportunity to name their spouse, even in recognition states.

This discrimination came home to the surviving partner of a police officer who was killed in the line of duty.

On July 6, 2001, Tampa, Florida, police officer Lois Marrero was shot and killed in the line of duty. She was due to retire in 15 months. Officer Marrero left behind her partner of 11 years, Tampa police officer Mickie Mashburn.

Unlike the officer's heterosexual counterparts, Officer Mashburn was not entitled to receive any part of Marrero's pension. Florida's pension law provides that only spouses and children are eligible to receive survivor benefits. Mashburn also could not receive a refund of the $50,000 paid into the pension fund by Marrero. The eight-member city pension board awarded the $50,000 refund of pension premiums to Marrero's mother. Marrero's family claimed there was no relationship between Marrero and Mashburn.

And, since Marrero died intestate, her parents inherited her estate.

Mashburn did receive $25,000 from the Florida crime...