Protecting the Forgotten: Enacting an LGBTQIA+ Long-Term Care Bill of Rights

This paper examines the need for Congress to enact a statutory Long-Term Care Bill of Rights (BOR) due to gaps in existing state and federal anti-discrimination legislation on the basis of sexual orientation and gender identity in the United States today. The first Long-Term Care BOR was enacted on the municipal level in San Francisco in 2015. It was necessary despite the fact that California has some of the most robust anti-discrimination protections for LGBTQIA+ people in the country. While some states like California prohibit discrimination on the basis of sexual orientation or gender identity in housing, employment, and public accommodations, they fail to address the unique vulnerability of LGBTQIA+ older adults in long-term care facilities. At the federal level, the broadest LGBTQIA+ anti-discrimination protections come from the recent Bostock decision, which reads sexual orientation and gender identity into "sex "for purposes of Title VIL While this was a victory for overall LGBTQIA+ rights, it is limited to employment. Considering that most older adults, especially those in long-term care facilities, are no longer in the workforce, the Bostock decision provided no real protection for this sub-population of the LGBTQIA + community. President Biden recently passed an executive order in July 2022 that addressed some of these gaps in protection. Yet, this can be easily invalidated by future presidents, and courts may determine that only Congress can create such protections. Unfortunately, several recent studies have uncovered the discrimination, harassment, and abuse LGBTQIA+ older adults face in long-term care facilities. A Long-Term Care BOR would protect LGBTQIA+ older adults from these experiences by defining types of discriminatory behavior, informing residents of their rights, and providing pathways for challenging potential violations. Congress should enact a Long-Term Care BOR because it is a necessary protection for a vulnerable and quickly growing population.