Laws Affecting LGBTQ+ Older Adults
This article provides an overview of laws directly impacting LGBTQ+ older adults (OA) and their ability to age with dignity, access affirming healthcare and culturally competent senior services, and prevent elder abuse.
The discussion below covers the following laws:
- Older Americans Act
- Nursing Home Reform Act
- Discrimination in healthcare laws, including the Affordable Care Act
- Elder abuse and exploitation laws, including the Elder Abuse Prevention and Prosecution Act
The National Resource Center on LGBTQ+ Aging estimates there will be 7 million LGBTQ+ adults 65 and older living in the United States by 2030. More needs to be done to minimize anti-LGBTQ+ bias and support the needs of the growing number of LGBTQ+ older adults.
Congress originally passed the Older Americans Act (OAA) in 1965 to develop community and social services for older adults, who, at that time, were more likely to live in poverty than any other age group.
The OAA authorizes a variety of supportive and community service programs for adults aged 60 years or older in each state and the District of Columbia, as well as some federally recognized tribal organizations and U.S. territories.
The OAA established the federal Administration on Aging (AoA). The Administration on Aging distributes funds to State Units on Aging (SUA), which develop multi-year state plans carried out by Area Agencies on Aging (AAA). These public and private non-profit organizations provide a variety of services to older adults either directly or via local service providers, including:
- Funding for senior community centers
- Training for elder care and service providers
- Transportation assistance (e.g., Access-A-Ride)
- Congregate and Home-delivery nutrition services (e.g., Meals on Wheels)
- Caregiver resources
- Community service employment
- Prevention of abuse, neglect, and exploitation of older adults
- Dementia support
- Respite care
The OAA also authorizes the Long-Term Care (LTC) Ombudsman program that works to settle difficulties related to the rights, health, safety, and welfare of individuals living in long-term care facilities such as nursing homes, board and care homes, and assisted living facilities. Under the OAA, each state must have its own dedicated LTC Ombudsman program to address complaints and advocate for advancements across long-term care facilities. You can find your state's LTC Ombudsman through the National LTC Ombudsman Resource Center.
Greatest Social Need Under the OAA
The OAA authorizes programs available to every older adult aged 60 and older; however, it prioritizes services for those in “greatest social need." OAA defines greatest social need as need caused by:
- Living below the poverty line,
- Physical or mental disabilities, or
- Cultural, social, or geographical isolation (includes isolation due to language, race, or ethnicity).
Recent federal legislative efforts to incorporate LGBTQ+ older adults as a greatest social need group within the OAA include the:
LGBTQ+ older adults were not officially included as a greatest social need group in the Congress' 2020 reauthorization of the OAA. However, the Administration for Community Living (ACL), which oversees the AoA, acknowledges that LGBTQ+ older adults meet the criteria:
"Isolation due to sexual orientation or gender identity may restrict a person's ability to perform normal daily tasks or live independently, and therefore, LGBTQ+ older adults should be targeted for services and supports because they meet the Older Americans Act definition of greatest social need."
ACL supports the National Resource Center on LGBTQ+ Aging (the Center), the first national resource center for LGBTQ+ older adults, their families, and caregivers. The Center is operated by SAGE (Services and Advocacy for GLBT Elders), a national non-profit organization working on behalf of LGBTQ+ older adults since 1978.
Thanks in large part to the efforts of SAGE, LGBTQ+ activists, and allies, each SUA and AAA receiving funding under Title IV of the OAA must:
- Direct outreach efforts towards LGBTQ+ older adults,
- Collect and report data on the needs of LGBTQ+ older adults, and
- Collect and report data on whether those needs are being met.
The next reauthorization of the Older Americans Act takes place in 2024.
SAGE continues its work with states and municipalities to designate LGBTQ+ older adults as a greatest social needs population at the local level. If you are interested in learning more and getting involved in these efforts, check out the SAGE Action Squad.
You and your caregiver(s) can also volunteer with your local Aging Advisory Council, where you can actively participate in developing your AAA's Area Plans on Aging. You can search for your local advisory council using the Elder Care locator or by contacting the Department of Elder Affairs in your state.
Congress passed the Nursing Home Reform Act (NHRA) in 1987. The Act was intended to guarantee older adults dignity, privacy, autonomy, and freedom from neglect and abuse in long-term care facilities (i.e., nursing homes) that accept federal funds.
Today, nearly all nursing homes receive federal funds in the form of Medicare and/or Medicaid dollars. Some states have incorporated NHRA's requirements into their laws regulating nursing homes. In those states, all long-term care facilities must comply with NHRA standards, not only those seeking federal dollars.
Your NHRA Rights as a Nursing Home Resident
As a nursing home resident, you have certain rights under federal and state law to obtain the dignified care, assistance, and essential services you deserve. Before you are admitted, your nursing home must inform you of your rights in writing and in a language you understand. You, in turn, must provide written acknowledgment that you received the information.
At the federal level, NHRA sets the minimum standard for your rights as a nursing home resident in a long-term care facility that receives any amount of Medicare/Medicaid funds. Among other matters, you have the right to:
- Dignified and respectful treatment
- Freedom from abuse and neglect
- Make informed medical decisions and receive proper medical care
- Avoid physical and chemical restraints
- Participate in resident groups, activities, and programs
- Manage your own money (or choose someone you trust to do so for you)
- Obtain suitable privacy, property, and living arrangements
- Spend private time with your visitors
- Have your doctor and legal representative notified during critical events
- Access services (e.g., counseling and legal aid)
- Leave the nursing home
- Maintain protection against unfair transfer or discharge
- Involve your unmarried partner and chosen family in your care
Additionally, the law provides that long-term care facilities that receive any amount of federal funds must comply with federal civil rights protections for both prospective and current residents. Put another way, it is unlawful for a nursing home that receives Medicaid/Medicare funds to discriminate against you because of your race, color, national origin, age, disability, or sex.
The Affordable Care Act and SOGI Discrimination
Since the passage of the Patient Protection and Affordable Care Act (ACA), debate rages on as to whether sexual orientation and gender identity (SOGI) should be included in the ACA's protection from discrimination “on the basis of sex."
The Nondiscrimination in Health Programs and Activities rule (85 FR 37160, NHPA, “2020 Rule") set by the U.S. Department of Health and Human Services (HHS), rescinded a previous 2016 Rule which included gender identity as a protected class in accordance with Title IX.
In 2021, President Joe Biden released an Executive Order directing all federal agencies (as defined under 44 U.S.C. 3502(1)) to enforce federal prohibitions on sex discrimination on the basis of sexual orientation and gender identity. HHS is one of those agencies.
On August 4, 2022, HHS issued its latest Notice of Proposed Rulemaking (87 FR 47824, NPRM), including SOGI as protected classes for prohibited sex-based discrimination in health programs or activities receiving any amount of federal dollars. After considering relevant case law and incorporating public comment, HHS will issue its revised Rule. However, until then, the 2020 Rule retains the force of law.
Gaps in Implementing Federal Laws and Continued Mistreatment
Broad variance persists in state standards and resources for implementation of federal non-discrimination laws at the state and local levels. Wide gaps exist in service provider education and cultural competency training focused on LGBTQ+ communities despite a growing number of free technical assistance resources.
Institutional shortfalls, combined with long-held prejudice and misinformation about LGBTQ+ communities, contribute to intolerance, abuse, and neglect of LGBTQ+ older adults in long-term care facilities and other healthcare settings.
For example, one study of LGBTQ+ older adults living in long-term care facilities uncovered 853 occurrences of mistreatment related to sexual orientation and/or gender identity, including:
- Verbal or physical harassment from fellow residents (23%)
- Verbal or physical harassment from staff (14%)
- Rejecting durable medical power of attorney presented by spouse/partner (11%)
- Restricting personal visits (11%)
- Misgendering patients (9%)
- Refusing to provide basic services or care (e.g., bathing assistance) (6%)
Some LGBTQ+ older adults choose to return to the closet due to fear of mistreatment in long-term care facilities. The documentary film Gen Silent follows the lives of six LGBTQ+ older adults living in Massachusetts who face the choice of going back into the closet in order to preserve their opportunities for end-of-life care.
Returning to the closet is not an option for everyone. Many transgender and gender nonconforming (TGNC) older adults fear humiliation and harassment when entering long-term care facilities, especially if they transitioned earlier in life without or with limited medical intervention and their physical anatomy does not match their gender identity. TGNC older adults are even more vulnerable to hostility and mistreatment from healthcare personnel than their cisgendered peers in long-term care facilities and other medical settings.
Stand Up for Your Rights
If you believe your rights have been violated at a nursing home in any way, contact your state's Long Term Care Ombudsman to file a complaint.
Additionally, if you experience discrimination due to your race, color, national origin, age, disability, or sex (including your sexual orientation and gender identity), as a prospective or current nursing home resident (or as a patient of any health care provider that receives federal funds), file a written complaint with the U.S. Department of Health and Hospitals (HHS) Office of Civil Rights (OCR). You can file your complaint by U.S. mail, fax, email, or via the OCR online Complaint Portal.
You can also reach out to a licensed civil rights attorney in your area for advice and assistance.
LGBTQ+ older adults came of age during a time when same-sex attraction and gender variance were classified as severe mental illnesses and grounds for being involuntarily hospitalized. Today, LGBTQ+ people of all ages regularly encounter unaffirming healthcare providers. For older adults, that includes gerontologists (doctors who specifically work with elderly patients) and dementia care providers who lack the knowledge and cultural competence to provide safe, unbiased, and suitable care.
Transgender and gender non-conforming (TGNC) older adults face distinct barriers accessing healthcare services because they often cannot selectively hide their transgender status, especially when seeking medical care or assistance with tasks like bathing and dressing in hospitals and long-term care facilities. As a result, many TGNC OA avoid healthcare providers and delay essential medical care until they experience a life-threatening crisis.
Protection Under the Affordable Care Act
The Patient Protection and Affordable Care Act (ACA) refers to a wide-ranging 2010 federal healthcare reform law aimed at expanding health insurance coverage and preventative healthcare services while at the same time lowering consumer healthcare costs. Additionally, Section 1557 of the ACA (Section 1557) prohibits discrimination on the basis of race, color, national origin, age, disability, or sex in health programs or activities receiving any amount of federal dollars (covered entities).
To identify its grounds for discrimination and enforcement, Section 1557 specifically refers to:
- Title VI of the 1964 Civil Rights Act (Title VI) (prohibits discrimination based on race, color, or national origin in programs/activities receiving federal dollars)
- Title IX of the 1972 Education Amendments (Title IX) (prohibits discrimination on the basis of sex in public schools/education programs/activities receiving federal dollars)
- The Age Discrimination Act of 1975 (Age Act) (prohibits aged-based discrimination in programs/activities receiving federal dollars)
- Section 504 of the Rehabilitation Act of 1973 (Section 504) (prohibits discrimination against qualified individuals with disabilities by employers/organizations receiving federal dollars)
The issue of whether sexual orientation and gender identity should be protected under Section 1557 is hotly debated in state legislatures and federal district courts across the country. Although the arguments largely center around whether TGNC youth are entitled to gender-affirming healthcare and access to gender-affirming in school-based facilities and programs, how these issues are ultimately decided will have a substantial impact on whether LGBTQ+ older adults will be protected from discrimination in healthcare settings as well.
Nondiscrimination in Health Programs and Activities 2016 Rule
In its 2016 Rule published in the Federal Register, the Obama Administration, via the U.S. Department of Health and Human Services (HHS), clarified that Section 1557's prohibition of discrimination “on the basis of sex" included gender identity but stopped short of fully including sexual orientation.
Relying on the U.S. Supreme Court's 1989 decision in Price Waterhouse v. Hopkins (employer must show that its hiring decisions are not based on sex stereotypes), HHS explained that Section 1557 included sexual orientation only where the evidence determined that the discrimination was founded on gender stereotypes.
Religious Freedom Restoration Act
The 2016 Rule explicitly exempted covered entities from conforming with non-discrimination regulations that violated federal legal protections for “religious freedom and conscience." Even so, court challenges alleging that Section 1557 violated the Religious Freedom Restoration Act (RFRA) were swiftly brought in federal district courts, enjoining (stopping) HHS from interpreting or enforcing Section 1557's prohibition on gender-identity-based discrimination (note: some Section 1557 challenges are based on violations of the Administrative Procedure Act).
The Religious Freedom Restoration Act prohibits the government from “substantially burdening a person's exercise of religion." Since RFRA was signed into federal law in 1993, several states have passed their own RFRAs, which allow people, churches, non-profit organizations, and sometimes corporations to request exemptions from state laws that burden their religious beliefs.
Some states have RFRAs targeted at healthcare providers and other medical care facilities serving the public. These disproportionately affect LGBTQ+ OA who seek medical care and assistance associated with aging, including long-term care facilities like nursing homes. The Movement Advancement Project (MAP) maintains interactive maps that show the status of laws affecting LGBTQ+ older adults, including RFRA and health care.
Nondiscrimination in Health Programs and Activities 2020 Rule
The Trump Administration posted its revised Section 1557 Final Rule (2020 Rule) in the Federal Register, rescinding the 2016 Rule's inclusion of gender identity in Section 1557's definition of “on the basis of sex." As with the opposition to the 2016 Rule, several lawsuits were filed in U.S. District Courts seeking to enjoin (stop) its enforcement.
The Bostock Impact on Federal Non-Discrimination Protections for LGBTQ+ OA
A little over one month after the 2020 Rule, the U.S. Supreme Court held in Bostock v. Clayton County that sexual orientation and gender identity were included in Title VII of the 1964 Civil Rights Act's prohibition on sex-based employment discrimination.
In response, HHS, this time under the direction of the Biden Administration, issued the Bostock Notification. This notifcation stated that, effective May 10, 2021, the Office of Civil Rights (OCR) would interpret and enforce Section 1557's prohibition on discrimination on the basis of sex to include discrimination on the basis of sexual orientation and gender identity. It cited additional supporting case-law: Grimm (4th Circuit) and Adams (11th Circuit)
As of this writing, at least three court challenges to the Bostock Notification have been filed alleging violations of the RFRA (and the APA) – Neese (5th Circuit), Christian Employers Alliance (D.N.D.), and American College of Pediatricians (6th Circuit).
HHS issued additional guidance on March 2, 2022, reiterating that Section 1557 forbids gender-identity-based discrimination in access to health programs and activities receiving federal dollars. Specifically, HSS said:
"Categorically refusing to provide treatment to an individual based on their gender identity is prohibited discrimination. Similarly, federally funded covered entities restricting an individual's ability to receive medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity likely violates Section 1557."
On August 4, 2022, HHS issued its current Notice of Proposed Rulemaking ( 87 FR 47824, NPRM), reiterating that consistent with the Supreme Court's interpretations of Title VII and Title IX, sexual orientation and gender identity are included in prohibited sex-based discrimination in health programs or activities receiving any amount of federal dollars.
Along with other amendments, HHS aims to update nondiscrimination regulations for the Centers for Medicare & Medicaid Services (CMS), Program of All-Inclusive Care for the Elderly (PACE) to clarify that sex-based discrimination includes discrimination based on sexual orientation and gender identity. However, until the court challenges are resolved, the 2020 Rule retains the force of law.
Protection from Discriminatory Health Insurance Practices
Nondiscrimination in Health Programs and Activities (NHPA) also applies to health insurance issuers that receive federal funds. Because health insurance issuers play a significant role in the provision of health care, NHPA provides clear nondiscrimination standards for the health insurance industry, including protections for SOGI.
In the meantime, HSS encourages anyone who experiences discrimination in a healthcare setting due to their sexual orientation and gender identity to file a written complaint with OCR by U.S. mail, fax, e-mail, or via its OCR online Complaint Portal. You can also reach out to a licensed civil rights attorney in your state for advice and assistance.
As they age and require increased assistance from healthcare and senior services providers, LGBTA+OA face unique safety concerns tied to bias and intolerance of their sexual orientation and/or gender identity (SOGI), real or perceived.
Older Adult Abuse
Older adult abuse, often referred to as elder abuse, is defined generally as the mistreatment, neglect, or financial exploitation of people age 65 and older. There are many forms of older adult abuse, including:
- Physical abuse
- Family violence
- Intimate partner violence
- Domestic violence
- Sexual abuse
- Emotional abuse
- Psychological abuse
- Financial exploitation
While research on older adult abuse has increased in recent years, there is still a wide knowledge gap about how LGBTQ+ OA experience abuse and access relief services.
For example, the most recent Adult Maltreatment Report (2021), based on data submitted by 56 state and territorial adult protective service programs through the National Adult Maltreatment Reporting System (NAMRS), does not yet include a category of abuse motivated by LGBTQ+ bias, although it does acknowledge that very few states collect information about transgender older adults. ACL is currently working with NIH to increase SOGI-inclusive data collection to support improved abuse prevention services for LGBTQ+ OA.
A growing body of academic research confirms that LGBTQ+ OA have experienced lifelong anti-LGBTQ+ bias and discrimination, leading to higher rates of social isolation and internalized homophobia and/or transphobia later in life. They also are likely to:
- Be survivors of sexual and/or intimate partner violence
- Heavily rely on chosen family (many who are also LGBTQ+ OA) for care and support
- Be living with HIV
All of the above factors place LGBTQ+ OA at a higher risk for mistreatment and financial exploitation as they grow older and their health needs increase. When partners and chosen family become ill or pass away, LGBTQ+ OA become more reliant on health and aging providers who are often not educated or trained on how to provide culturally sensitive and dignified care to LGBTQ+ patients.
The Aging With Pride study, funded through the National Institutes of Health's (NIH) National Institute on Aging (NIA), generates statistics based on long-term surveys of 2,560 LGBTQ+ OA between ages 50-94. In that study:
- 68% reported verbal harassment
- 43% reported threats of violence
- Transgender older adults reported higher levels of discrimination and harassment than cisgender LGB older adults.
Prejudice and hostility in long-term care facilities create stressful and undignified environments for LGBTQ+ OA. Numerous reports document anti-LGBTQ+ bias and abuse by nursing home staff:
- Denying phone calls or visits from partners and chosen family,
- Isolating LGBTQ+ OA
- Preventing partners and chosen family from participating in medical decision-making (even with Advance Directives and medical POAs in place)
- Refusing to allow same-sex couples to share rooms, and
- Blocking gender-affirming accommodations for transgender older adults.
If you believe that you or another older adult in your life is suffering abuse in a long-term care facility or nursing home, contact your state's Long-Term Care Ombudsman and Adult Protective Services.
Elder Justice Act
The federal government's first concentrated effort to address older adult abuse, financial exploitation, and neglect was the Elder Justice Act (EJA), which Congress passed as part of the Affordable Care Act (ACA) in 2010. The EJA committed federal public health and social service resources to support prevention, detection, and treatment of older adult abuse, primarily through support (via grants) for Adult Protective Services (APS) programs across the country, creation of the Elder Justice Coordinating Council and development of the National Adult Maltreatment Reporting System (NAMRS).
Elder Abuse Prevention and Prosecution Act
Congress passed the Elder Abuse Prevention and Prosecution Act (EAPPA) in 2017 to set standards for the Department of Justice (DOJ) criminal investigation and prosecution of older adult abuse, including financial exploitation through email marketing. The law's requirements include:
- Appointing an Elder Justice Coordinator (EJC) for the entire DOJ to improve the department's understanding, prevention, and detection of older adult abuse and exploitation
- Appointing at least one federal prosecutor in each federal judicial district to serve as an EJC and prosecute abuse and exploitation cases
- Requiring the Federal Trade Commission (FTC) to designate an EJC within its Bureau of Consumer Protection
- Training for FBI agents investigating older adult abuse and exploitation
- Aiding state and local agencies in investigating, prosecuting, and preventing older adult abuse
- Encouraging states to share resources to prevent older adult abuse and exploitation
- Promoting data collection by DOJ as well as use of Department of Health and Human Services data from APS investigations (e.g., NAMRS)
The overall goal of EAPPA is to expand the federal response to older adult abuse and financial exploitation by promoting the investigation and criminal prosecution of persons who target vulnerable older adults, as well as improving data collection and abuse prevention efforts at state and local levels.
Adult Protective Services
Adult Protective Services (APS) programs serve older adults (and adults of all ages with disabilities) in each state and U.S. territory. Typical APS services include:
- Managing an abuse reporting system
- Investigating abuse/exploitation reports
- Providing counseling and other social services to abuse survivors
- Ongoing monitoring and risk assessment
Most APS programs developed before the EJA was enacted. APS and elder abuse laws vary across states and definitions of what constitutes abuse vary, as well as:
- Types of abuse/exploitation covered
- Classification of abuse (criminal or civil)
- Who is legally required to report abuse (mandatory reporters)
- Who is eligible for APS assistance
- Investigative procedures
- Remedies for abuse
If you believe that you or another older adult in your life is being mistreated, report it to the APS as soon as possible. If the mistreatment is happening in a long-term care facility or nursing home, contact your state's Long-Term Care Ombudsman.
How to Report Abuse and Financial Exploitation
The National Center on Elder Abuse hosts an online directory of APS offices in each state and territory. You can also use the Eldercare Locator online or call 1 (800) 677-1116. Other resources include:
- National Adult Protective Services Association APS online directory
- SAGE National LGBTQ+ Elder Hotline or call 1 (877) 360-LGBT (5428)
- National Domestic Violence Hotline or call 1 (800) 799-SAFE (7233)
- National Elder Fraud Hotline or call 1 (833) 372-8311
- Federal Trade Commission (FTC) or call 1 (877) 382-4357
- Federal Bureau of Investigation (FBI) Internet Crime Complaint Center
If you or someone you know is in immediate, life-threatening danger, call 911 right away.
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