LGBTQ+ Older Adults: Access to Public Benefits

According to recent estimates, approximately 9-11 million LGBTQ+ people live in the United States. Within that, 3-5 million live with a disability. The ongoing research study Aging with Pride confirms that LGBTQ+ older adults develop both physical and mental disabilities at higher rates than their heterosexual contemporaries.

Further, disability risk varies considerably within the overall LGBTQ+ community, with the following groups disproportionately affected:

• Transgender older adults: In addition to higher rates of victimization and discrimination, transgender older adults report higher rates of disability than their gay/lesbian/bisexual identified peers.
• Bisexual older adults: Bisexual OA report high levels of internalized biphobia and tend to mask their identities throughout their lifetimes. Combined, those factors lead to increased risk of poor health outcomes and disability for bisexual elders.
• LGBTQ+ Older Adults of Color: Older adults of color who are low-income and/or identify as queer, gender non-conforming, nonbinary, or another identity tend to experience elevated levels of invisibility within the more mainstream gay/lesbian community. They are less likely to seek out health services, which leads to higher rates of chronic illnesses and eventual reliance on Social Security disability payments as a primary source of income as they age.

In addition to disability, Social Security retirement and survivors benefits are crucial financial safety nets for LGBTQ+ OA. Survivors benefits were only made available less than a decade ago, following the U.S. Supreme Court decision in Obergefell v. Hodges (2015) that states must recognize marriages between same-sex couples.

LGBTQ+ Older Adults and Social Security

In a SAGE survey of LGBTQ+ older adults, 83% of respondents reported depending on Social Security benefits for financial support. 58% of respondents confirmed anxieties that projected Social Security spending cuts would negatively impact their financial well-being.

What Is Social Security?

Social Security, also known as the Old Age, Survivors, and Disability Insurance program (OASDI) is the largest federal income-maintenance program in the United States. It is funded primarily through payroll taxes paid by covered workers and their employers. Currently, Social Security pays monthly cash benefits to more than 65 million individuals.

The Social Security Act of 1935 created the Social Security Administration, the federal agency that administers all programs.

• Title II of the Social Security Act of 1935 (the Act) authorizes monthly cash benefits to covered retired workers (Retirement), disabled workers (SSDI), and eligible surviving beneficiaries of deceased workers.
• Title XVI of the Act authorizes monthly cash benefits (SSI) to persons who are aged 65 or older, disabled, or blind, and who lack the income and the work credits to receive benefits under Title II.

Social Security is the primary source of income for the majority of older adults, including LGBTQ+ older adults. However, the Congressional Research Service reports that this essential program may be unable to pay full benefits as currently allotted beginning in 2035.

Social Security Disability Insurance

Social Security Disability Insurance (SSDI) pays benefits to people who cannot work due to a qualifying medical condition that is expected to last at least one year or result in death. In order to receive SSDI, you must:

• Meet Social Security's strict definition of disability, and
• Have the required years of employment in which you paid Social Security taxes.

Whatever your age when you claim SSDI, Social Security sets your monthly benefit payment as though you had reached full retirement age (FRA), when you become eligible for unreduced Social Security retirement benefits based on your lifetime earnings. Your FRA depends on your date of birth. For example, if you were born between 1943 and 1954, your FRA is 66. If you are receiving SSDI when you reach FRA, your disability benefit will automatically convert over to your Retirement benefit.

Supplemental Security Income

If you are aged 65 or older, blind, or have a qualifying medical condition that prevents you from working, you may be eligible for Supplemental Security Income (SSI), a monthly benefit for people who are low-income and have limited resources. If you qualify for SSI, you may also be eligible for food assistance through SNAP, health insurance coverage through Medicare and/or Medicaid, and other social services provided through your state.

Applying for Disability: A Timeline

Here are the steps in the Social Security Disability application process:

1. Information gathering: Gather the information Social Security will ask for before starting the application process.
2. Application: You can apply online or make an appointment with your local Social Security Field Office. If you choose to apply online, you can ask your caregiver, partner, friend, or chosen family member for help completing the application. You can also select one of those people to act as your formal SSA Representative or consult with a disability attorney near you.
3. DDS review: Once your application is submitted, it will be assigned to your state's Disability Determination Services (DDS) office. The DDS office will collect and review your medical records. You will be assigned a DDS caseworker who may mail you additional forms to fill out (e.g., Work History Report, Adult Function Report). It is important that you complete and return all forms to DDS on time.
4. Medical exams: DDS may also schedule a Consultative Examination (CE) and/or Mental Status Examination (ME) with a doctor authorized by the SSA to independently assess your medical condition(s). DDS will mail you a written notification with the appointment(s) location, date, and time. It is important that you attend these appointment(s), which will be at no cost to you.
5. Notice of decision: Once DDS makes its disability determination, Social Security will mail you a written notice of its decision.
6. Appeal: If your claim is denied, you can appeal by submitting a Request for Reconsideration within sixty (60) days of the date on the decision letter. Consider consulting with a disability attorney near you for help with the appeal process, which can be lengthy and complicated. You can also reach out to a legal aid organization in your area. If you meet income eligibility and other requirements, most legal aid organizations assist with Social Security appeals free of charge.

Continuing Disability Review

Generally, your disability benefits continue as long as your medical conditions are severe enough to prevent you from working. SSA will periodically review your medical records to determine whether your medical conditions are likely to improve in a process called Continuing Disability Review (CDR). Your annual benefits award letter tells you when to expect your CDR.

Social Security Retirement Benefits

Social Security retirement benefits are earned entitlements paid for through payroll taxes taken directly from your lifetime earnings. SSA calculates your monthly retirement benefit based on the payroll taxes you contributed during your working years.

This means in order to qualify for retirement benefits, you must contribute Social Security taxes for the minimum amount of time set by SSA. Persons born in 1929 or later need 10 years of work (40 credits) to be eligible for retirement benefits.

Social Security plays a significant role in retirement planning. Current data suggests that LGBTQ+ OA who are Black, Indigenous, or People of Color (BIPOC) generally retire with less income security than their white LGBTQ+ peers, in part due to race-based discrimination in employment over their lifetimes. Gaps in employment and lower wages result in lower Social Security retirement benefit payments.

In a recent survey, 44% percent of LGBTQ+ respondents reported concern that they will be forced to work beyond retirement age to support themselves, compared to 26% of non-LGBTQ+ respondents.

Your monthly retirement benefit amount will vary based on your age when you first begin collecting benefits. You can start collecting reduced monthly retirement benefits at age 62, before you reach full retirement age (FRA). Your date of birth determines your FRA.

Alternatively, you can maximize your monthly benefit by delaying retirement until you reach age 70. In summary, if you start retirement benefits:

• Before FRA, your monthly benefit will be lower, and you will receive it for more time.
• At FRA or later, your monthly benefit will be higher, but you will receive it for less time.

If you do decide to delay your retirement benefits, make sure to enroll in Medicare when you turn 65. You can start the enrollment process up to three months before your 65^th birthday. Note: Failing to sign up for Medicare at age 65 could delay your coverage and result in higher premiums.

Deciding when to begin claiming retirement benefits depends on a host of factors, including your:

• Employment status,
• Savings, pension, and other retirement income,
• Overall health and life expectancy, and
• Eligibility for Social Security Survivor benefits.

You can apply for retirement benefits online or by contacting your local Social Security Field Office. During the application process, you can designate up to three representative payees. If you are unsure of the best way forward, seek advice from a qualified Social Security attorney or financial adviser.

Currently, the Social Security Administration's (SSA's) record system only allows people to designate their sex/gender as “female" or “male" when applying for benefits or replacement Social Security cards. As of the date of this publication, individuals may change their sex/gender identification on their Social Security record without providing medical or legal confirmation for the change. SSA is exploring ways to accommodate non-binary individuals and others who choose not to specify a sex designation on their identity documents.

Survivors Benefits

Until the U.S. Supreme Court's decision in Obergefell v. Hodges, surviving same-sex partners and spouses were barred from receiving a host of privileges strictly reserved for heterosexual married couples, including Social Security survivors benefits. Once the Court recognized the constitutional right for same-sex couples to marry, surviving spouses became eligible to apply for Social Security survivors benefits.

At first, however, many individuals whose partners either died before the Obergefell decision or died shortly after were denied survivors benefits due to Social Security's rule that a couple must have been legally married for at least nine months in order for the surviving spouse to be eligible for survivors benefits. Lawsuits were filed on behalf of same-sex surviving partners and spouses, and two class actions emerged: Ely v. Saul and Thornton v. Commissioner of Social Security.

Ely v. Saul

Michael Ely and James Taylor were in a committed relationship for 43 years. In 2014, they married in their home state of Arizona after the state began allowing same-sex couples to marry. Seven months later, James died of cancer. The SSA denied Michael survivors benefits because their legal marriage lasted less than nine months.

On May 27, 2020, a federal district court held in Ely v. Saul that the SSA's denial of survivors benefits to Michael violated his constitutional rights to equal protection and due process as James's surviving spouse. Additionally, the court certified a class of same-sex surviving spouses across the United States:

• Who have filed or will file a survivors benefits claim,
• Whose claims were denied or would be denied because they were married to their spouse for less than nine months when their spouse died, and
• Who were prevented from being married for at least nine months due to discriminatory state laws prohibiting same-sex marriage.

If you believe you are a member of the Ely class, contact Social Security to apply or request that your claim be reopened.

Thornton v. Commissioner of Social Security

Helen Thornton and Margery Brown were a couple for 27 years. Ms. Brown died in 2006. At the time of her death, Washington State had a law prohibiting same-sex marriage (although it eventually recognized same-sex marriage in 2012). Ms. Thornton applied for survivors benefits in 2015 but was denied because she was not legally married to Ms. Brown at the time of her death.

On November 25, 2020, a federal district court held in Thornton v. Commissioner of Social Security that the SSA may not deny survivors benefits to same-sex partners who were barred from marriage by unconstitutional laws. The Thornton court also certified a class of persons across the United States:

• Who were unable to marry their deceased partner because of unconstitutional laws prohibiting same-sex marriage, and
• Whose claims were denied because they were unable to meet the SSA's marriage requirements to obtain survivors benefits.

A surviving partner of a same-sex relationship who files a survivors benefits application after November 25, 2020 will not technically be a Thornton class member. However, the SSA continues to consider claims from surviving partners of same-sex relationships on the same terms and conditions as the agency processes claims for Thornton class members.

Ely and Thornton made it possible for surviving spouses and partners of same-sex relationships to qualify for Social Security survivors benefits. If you were in a same-sex relationship and your partner or spouse has passed away, you could be eligible for survivors benefits based on their earnings record.

You can contact your local Social Security office to apply for survivors benefits. Note that you cannot apply for survivors benefits online at this time. If you were previously denied survivors benefits, you can request that the SSA reopen your claim. If you were previously denied and the SSA determines that you qualify for survivor benefits under Ely or the Thornton rules, you could be eligible for retroactive benefit payments dating back to your spouse's or partner's death.

LGBTQ+ OA Access to Medicare and Medicaid Services

The Center for Medicare and Medicaid Services (CMS) is the federal government agency that administers two large, publicly funded health insurance programs: Medicare and Medicaid. You might qualify for both programs (called dual-eligible) if you meet certain income and asset requirements.

Medicare

Medicare is the most frequently used health insurance program for older adults aged 65 and older. Medicare provides health insurance coverage to:

• Older adults aged 65 and older
• People under age 65 with certain disabilities
• People of all ages with permanent kidney failure (ESRD) or Lou Gehrig's disease (ALS)

Medicare coverage is divided into four parts:

• Part A (hospital insurance)
• Part B (medical insurance)
• Part C (Medicare Advantage), and
• Part D (prescription drug coverage)

In order to qualify for free Medicare Part A benefits, you (or your spouse) must have contributed Medicare payroll taxes. If you were born in 1929 or later, you need 10 years of work (40 quarters) to be eligible for Part A with a $0 premium. The standard monthly premium for Part B is $164.90/month in 2023. If you (or your spouse) do not have a qualifying work history, Part A premiums can be quite costly.

To avoid delayed Part B coverage and higher premiums, be sure to sign up for Medicare during your Initial Enrollment Period (IEP), which begins 3 months before your 65th birthday, includes the month you turn 65, and ends 3 months after the month you turn 65.

CMS provides an online calculator to estimate your Medicare IEP. To learn more about Medicare Advantage (Part C), and prescription drug coverage (Part D), visit our Medicare Overview.

How Marriage Impacts Your Medicare Coverage

Generally, you must be married for at least one year before you can qualify for Medicare based on your spouse's qualifying work history. However, you may be able to qualify for spousal Social Security and related Medicare coverage if unconstitutional state laws prevented you from marrying or from marrying sooner.

Depending upon your individual income and that of your prospective spouse, marriage could either raise or lower your Part B and Part D premiums. For example, if you are planning to get married and currently receive the Medicare Part D Low Income Subsidy (LIS) to help pay for prescription drugs, your new spouse's income and assets will be counted toward your total household income. This may impact your ability to maintain your LIS. To determine how marriage will impact your Medicare coverage, consult with a qualified tax professional or a licensed healthcare attorney.

Impact on Long-Term Care Services

Keep in mind that Medicare will not cover most long-term care services. Consider purchasing private long-term care insurance to avoid having to transfer your assets to comply with Medicaid spend-down rules. Another option to consider (depending on which state you live in) is setting up a Qualified Income Trust.

Medicare Coverage for Transgender Older Adults

Your Medicare records will include the gender marker (sex identification) from your Social Security record. You may change your gender marker (as of 2023, there are only "male" and "female" options) by requesting that SSA update your record and/or send you a replacement Social Security card. Once completed, the SSA changes should be reflected in your Medicare records.

Medicare approves coverage of medically necessary gender-affirming surgeries on a case-by-case basis, informed by the standards of care provided by the World Professional Association for Transgender Health (WPATH). Medicare Part D also covers transition-related drugs.

Additionally, Medicare will not deny coverage for sex-specific services (e.g., pap smear, prostate cancer screening) if your gender identity does not match the gender marker in your Medicare record. Instead, your provider can bill Medicare condition code 45 when ordering those procedures.

If you are denied gender-affirming treatment under Medicare, you can file a written complaint with the U.S. Department of Health and Hospitals (HHS) Office of Civil Rights (OCR) by U.S. mail, fax, e-mail, or through the OCR online Complaint Portal. You should also seek advice from a licensed attorney specializing in health care and/or civil rights.

Medicaid

Medicaid is a national insurance program that provides health coverage to millions of low-income Americans. Although Medicaid is funded jointly by the states and the federal government, each state manages its own Medicaid program in keeping with federal rules (which include protection from discrimination based on sexual orientation or gender identity).

Medicaid eligibility is strictly based on financial need, calculated based on your Modified Adjusted Gross Income (MAGI). To determine whether you are eligible for Medicaid coverage, you can apply through the Healthcare Marketplace or directly through your state Medicaid office.

Medicaid Coverage for Long-Term Care Services

Medicare does not cover most long-term care expenses. In the absence of private long-term care insurance, many LGBTQ+ OA will rely on Medicaid to cover their long-term care, whether they receive services at home or move into a nursing facility. Medicaid “spend down" rules, known as spousal impoverishment rules for married individuals, come into play.

Medicaid is often the only option, which means individuals must “spend down" or transfer their assets in order to qualify for coverage under Medicaid's strict income requirements.

The spousal impoverishment rules protect the healthier spouse by exempting the marital home from counted assets, which allows the healthy spouse to keep at least one-half of the couple's joint assets and prevents Medicaid from placing a lien on the marital home until after the death of the healthy spouse.

Medicaid Coverage for Transgender Older Adults

According to the Williams Institute, 276,000 transgender adults are enrolled in Medicaid. As of March 2023, the Movement Advancement Project (MAP) researched state Medicaid programs and found that:

• 26 states specifically allow transgender healthcare coverage
• 9 states explicitly ban transgender healthcare coverage for people of all ages
• 13 states do not have any specific transgender healthcare coverage policy

However, if you are enrolled in Medicaid, federal law prohibits SOGI-based discrimination by nursing homes, home health, and other health and senior service providers who accept Medicaid dollars.

If you are denied gender-affirming treatment by a Medicaid provider you can file a written complaint with the U.S. Department of Health and Hospitals (HHS) Office of Civil Rights (OCR) by U.S. mail, fax, e-mail, or through the OCR online Complaint Portal. You should also seek advice from a licensed attorney specializing in health care and/or civil rights.

Additionally, your state's Medicaid policy does not affect your right to Medicare coverage.

Veteran's Benefits

In 1949, the Department of Defense released its policy banning LGBTQ+ people from serving in “any branch of the Armed Forces in any capacity." Under that policy, any service member who was a “known homosexual" was separated from their unit, their enlistment period cut short, and released with a “blue card," or “Other Than Honorable" (OTH) discharge status.

With strict exceptions for veterans experiencing mental health crises or homelessness, the Department of Veterans Affairs (VA) treats any discharge status other than “Honorable" as dishonorable for the purpose of VA benefits, including its health care, education, and home loan programs.

When Don't Ask, Don't Tell was repealed in 2011, nearly 114,000 service members had already received “Other Than Honorable" discharges on the basis of sexual orientation and/or gender identity. These individuals are now eligible for a discharge upgrade.

Discharge Upgrades

LGBTQ+OA veterans with Other than Honorable discharges must apply for a discharge upgrade with the Board of Corrections with the military branch they served with in order to access VA benefits.

It is not unusual for the discharge upgrade process to take more than one year.

If you would like assistance applying for a discharge upgrade and/or applying for VA benefits, you can use this directory to find a VA-recognized Veterans Service Organization (VSO) or a VA Accredited Representative or Attorney.

Additionally, there are several law clinics and non-profit organizations that provide culturally competent representation to LGBTQ+ veterans who meet their income and residency requirements, including the Connecticut Veterans Legal Center and Swords to Plowshares (San Francisco Bay Area).

Services for LGBTQ+ Servicemembers and Veterans

Since the repeal of DADT and more so since the legalization of same-sex marriage in Obergefell v. Hodges, the Department of Veterans Affairs has increased its services for LGBTQ+ servicemembers and veterans, including:

• Designated LGBTQ+ Veteran Care Coordinators in each VA Healthcare System
• LGBTQ+ cultural competency trainings for VA healthcare providers and staff
• Medically necessary care for transgender veterans (including hormone therapy but excluding gender-reassignment surgery)

Same-sex surviving spouses of disabled veterans are eligible for VA Survivors Pension and Disability Indemnity Compensation if they meet the VA's other requirements for those programs. LGBTQ+ service members and veterans may designate their same-sex spouses as beneficiaries for:

• Servicemembers Group Life Insurance (SGLI)
• Veterans' Group Life Insurance (VGLI)
• Post Vietnam-era Veterans Assistance Program (VEAP)
• Montgomery GI Bill
• Presentation of the Flag of the United States