Aging In Community Pronouns, Freedom of Speech, and Life in a Long-Term Care Facility

By Eric Carlson

For most people, moving into a nursing facility or assisted living facility is a transition into the unknown. And not necessarily a benign unknown, but “unknown” with a whiff of foreboding. This is doubly true for LGBTQ+ older adults, who well may be wary about moving into an unwelcoming or even hostile environment.

How to address this problem? One strategy is to pass a law. Since 2018, California has had a Bill of Rights for LTBTQ+ residents of long-term care facilities. The law prohibits facilities from discriminating on the basis of sexual orientation or gender identity in certain specified actions. The nodiscrimination principle explicitly applies (for example) to admission and eviction decisions, room assignments, and clothing choice.

One provision of the Bill of Rights—the socalled “pronoun provision”—is currently being challenged in state court. Under this provision, if facility staff have been “clearly informed” of the resident’s chosen name and pro - nouns, they commit a violation by “willfully and repeatedly” failing to use the name or pronouns.

As things currently stand, this provision is unenforceable, based on a ruling from a state appellate court that the provision violates facility employees’ free speech rights.

According to the court, the law regulates the content of speech and, although the law’s goal may be admirable, the state has adopted an unduly restrictive method to reach that goal. The court relied heavily on a finding that, under some circumstances, a staff member hypothetically could be guilty of a criminal offense by using the wrong name or pronoun.

Importantly, this appellate court ruling will not be the last word: the California Supreme Court accepted the case for review and is expected to issue its opinion later this year.

Justice in Aging submitted a friendof-the-court brief defending the law on behalf of itself, Openhouse (a nonprofit San Francisco LGBTQ+ senior service organization), and several other California community organizations.

The Importance and Power of Individual Advocacy https://www.c-span.org/video/?472971-1/coronavirus-subcommittee-hearing-covid-19-nursing-homes on your own behalf as possible (or have a friend or family member be proactive on your behalf).

But passing laws (and sometimes the related litigation) are only part of the answer.

LGBTQ+ facility residents can recognize the importance of legislation while also understanding the need to look out for yourself, sometimes, but not always, by utilizing the relevant law.

Perhaps the most obvious individual action is choosing a welcoming facility. A small number of California facilities designate themselves specifically for LGBTQ+ residents while others— due to history, a management initiative, or other factors—put themselves out as open and affirming for an LGBTQ+ clientele.

How to identify a facility that welcomes LGBTQ+ residents? A stereotypical indication would be a rainbow flag or marketing materials that feature same-sex couples. But a potential resident does not have to rely on discreet clues, nor overlook the power of asking questions.

I encourage you to be as proactive

Ask the facility about LGBTQ+ residents. Ask about no-discrimination policies. And ask about things that are specifically important to you, whether related to sexual orientation, gender identity, health care needs, favorite activities, or any other concern.

Remember, a potential resident represents possibly tens of thousands of dollars of future income for the facil- ity, and should be prepared to exercise the leverage that comes with controlling that much money. And if facility staff seem uncomfortable with your inquiries or with the concept of an LGBTQ+ clientele? Better to know now rather than later.

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Club 75 staff bring their own first-hand experience of discrimination and marginalization to break down barriers and ensure the program is applicable, relevant, and impactful in meeting the needs of LGBTQ+ seniors. Staff members identify with the queer community they serve and revere their elders. They are specially trained to care for adults who have experienced trauma or have mental health challenges, or who are living with Alzheimer’s or other dementias.

Our programming is robust and intentional, filling the day with activities tailored to the individual needs of participants. Seniors are engaged in San Francisco’s culture, with outings to music performances, cultural events, gallery, and museums—the kind of activities they enjoyed when they were younger and now cannot access on their own.

If needed, members and their caregivers are referred to additional health and social services through Openhouse and On Lok to provide them with a continuum of care as their needs change. The center is now a certified alternative care setting (ACS) for the Program of AllInclusive Care for the Elderly (PACE), the full-service healthcare program pioneered by On Lok to empower seniors with long-term care needs to live at home for as long as possible. Alternative care settings offer PACE participants more geographically convenient access to some of the services they receive, such as preventative care and meals. On Lok has a history of supporting vulnerable populations by creating alternative care settings with partners in the community. For the city’s LGBTQ+ seniors who choose to enroll in On Lok PACE, it will also include the choice to attend Club 75.

Ephraim Getahun, Director of Strategic Partnerships & Training at Openhouse, is leading outreach deep in the community to identify seniors who would most benefit from the program. Hospitals and skilled nursing facilities are learning about us and reaching out when they discharge people as they are transitioning back to the home. Many want to embed Openhouse + On Lok Community Day Services in their care planning.

Our dream is for the program to grow and lift the lives of all LGBTQ+ seniors in need, and for our partnership with Openhouse to continue to flourish. We are deeply grateful to all the people who have worked so hard to make our bold vision of creating a safe and inclusive space for LGBTQ+ elders a reality: Karyn Skultety and Marcy Adelman, with whom we began our amazing journey, and Openhouse Executive Director Kathleen Sullivan for her leadership and guidance going forward. Together, we can ensure that LGBTQ+ seniors have the services to age as their authentic selves in the community they love.

For additional information about Club 75, contact Openhouse + On Lok Community Day Services at 415-2928302 or email communitydayservices@ onlok.org trans people, much of the rest of the country is moving in the opposite direction. We have seen over 400 bills proposed across this country that threaten the safety of LGBTQ people. This includes everything from book bans, to drag bans, to banning trans children from playing sports, banning trans teens from receiving gender affirming care, and taking trans children away from their parents.

With more than three decades in healthcare and 22 years at On Lok, Grace Li’s experience spans a wide range of healthcare settings. She has worked in hospitals and managed physician practices, in private and academic settings, and in assisted living facilities and healthcare consulting. She holds a Master of Health Administration from the University of North Carolina, Chapel Hill, and a Bachelor of Arts in Economics from the University of Florida.

What is happening in states like Florida is absolutely terrifying, and we need all hands on deck to fight back. We must continue to support organizations like the Trans Law Center, the National Center for Lesbian Rights, and the American Civil Liberties Union that are on the frontlines of many legal battles to push back against these laws. And as more and more trans people, trans parents, and parents with trans children leave places like Florida to come to places like San Francisco, it is even more important to make sure that we make them welcome.

With organizations like El/La Para Trans Latinas, Lyon-Martin, St. James Infirmary, San Francisco Community Health Clinic, San Francisco AIDS Foundation, TGIJP, the SF LGBT Center, LYRIC, and, of course, the Transgender District here in San Francisco, we can continue to be a sanctuary city for the transgender community, but only with support from the city, the state, and, most importantly, the community. We have to turn our thoughts, our hopes, and our vision into action so all of us can be safe, be our best authentic selves, and thrive. Honey Mahogany is an activist, social worker, and performer who grew up in San Francisco and got her Master in Social Work from UC Berkeley. She is a founder of the Transgender District, a Co-Owner of the Stud Bar, a founding queen of Drag Story Hour, and Chair of the San Francisco Democratic Party.

Continuing to advocate for yourself after admission is also important. Both nursing facilities and assisted living facilities are required by law to work with residents (or a resident’s representative—this can be a family member or friend) to develop a service plan. Federal nursing facility law explicitly requires that care be “person-centered,” and that a facility make reasonable accommodations for a resident’s needs and preferences.

An important step in self-advocacy is bringing in other people to help. The resident or representative can consult with the publicly-funded Long-Term Care Ombudsman Program, which provides advocacy assistance for residents of nursing facilities and (to a lesser extent) assisted living facilities. Also, a resident has the option of filing a complaint with the relevant state inspection agency. In any case, the first and essential step for self-advocacy is the resident saying, “No, this is not good enough.”

There was a time when no laws supported the rights of LGBTQ+ people. Now, the laws have improved to a significant extent, but remaining gaps in relevant law, along with rampant facility noncompliance, still often leave facility residents in a precarious position. As a practical matter, residents and their representatives must assert their rights when the facility falls short. Speaking up may feel intimidating, but staying silent and hoping for the best is not a winning strategy. Reach out to others so you are not alone—to a friend, relative, neighbor, legal aid office, community social worker, ombudsman representative, or others. Don’t give a longterm care facility more power than it actually has. Facility staff feel pressure too, and the ombudsman program and licensing agencies can provide helpful back-up. The resident who stands up for themself, with help from a few friends or allies, may be pleasantly surprised by how much can be accomplished.

Eric Carlson, an attorney, is Director of LongTerm Services and Supports Advocacy at Justice in Aging, and is the author of the comprehensive consumer guide “25 Common Nursing Home Problems and How to Resolve Them,” available for free at https://justiceinaging.org/