But at the end of life for trans seniors in need of nursing home care, the battle to hold onto their identity is not so simple. Recently, it’s become the subject of a debate in the court system over how they are identified in nursing homes across the state.
Last month, the Third District Court of Appeal overturned a portion of the 2017 law SB 219 that prohibits employees of nursing homes and other long-term care facilities from willfully and repeatedly using anything other than residents’ preferred names and pronouns to address them. Prior to the ruling, it was illegal for employees to intentionally misgender trans residents, calling them by the names and pronouns they were born with, a practice otherwise known as deadnaming.
The ruling stems from a suit against the state of California brought by a group called Taking Offense, described in the ruling as an “unincorporated association which includes at least one California citizen and taxpayer who has paid taxes to the state within the last year.” On July 16, in the court’s unanimous, 34-page ruling, the Third District ruled that the ban on deadnaming violates nursing home employees’ right to free speech. Legal representatives for the group did not respond to requests for comment on the ruling.
“The law compels long-term care facility staff to alter the message they would prefer to convey,” Justice Elena Duarte wrote for the panel, reasoning that the SB 219 ban “burdens speech more than is required” to reach the state’s objective of eliminating discrimination, including harassment on the basis of sex.
Referring to residents other than by their preferred gender “may be disrespectful, discourteous, and insulting,” Duarte wrote. But it can also be a way “to express an ideological disagreement with another person’s expressed gender identity.”
Advocates for the LGBTQ community were outraged by the decision, including State Sen. Scott Wiener (D-San Francisco), who authored SB 219, which was passed by former California Governor Jerry Brown.
“The Court’s decision is disconnected from the reality facing transgender people,” Wiener said in a statement at the time of the ruling. “Deliberately misgendering a transgender person isn’t just a matter of opinion, and it’s not simply ‘disrespectful, discourteous, or insulting.’ Rather, it’s straight up harassment. And, it erases an individual’s fundamental humanity, particularly one as vulnerable as a trans senior in a nursing home.”
At the core of the argument over deadnaming trans seniors is the question of conduct versus free speech.
“The pronoun provision at issue here tests the limits of the government’s authority to restrict pure speech that, while potentially offensive or harassing to the listener, does not necessarily create a hostile environment,” Justice Duarte wrote.
However, LGBTQ advocates say that this type of behavior specifically targeted at a particular population veers far outside of First Amendment protections.
“Misgendering someone intentionally repeatedly is harassment,” said Sam Garrett-Pate, communications director for Equality California, one of the groups that worked with Sen. Wiener to pass SB 219. “It’s not even a question, it is intended as harassment. And so the argument that the First Amendment protects this conduct is really harmful toward trans or nonbinary seniors.”
Looking at the effect that lack of dignity and respect can have on the mental health of seniors, Equality California and other organizations like the National Center for Lesbian Rights (NCLR), the Transgender Law Center, and the American Civil Liberties Union have been vocal in their opposition to the ruling in press conferences and rallies leading up to the Aug. 26 deadline for the state to decide whether it will appeal the ruling. The attorney general’s office didn’t comment on whether it will appeal.
Loree Cook-Daniels, the founder of the FORGE Transgender Aging Network, notes that this lack of protections for trans elders is one of the main reasons they avoid living in nursing homes. In one 2011 national survey, “LGBT Older Adults in Long-Term Care Facilities: Stories from the Field,” less than a quarter of LGBT older adult respondents said they were able to be open about their sexual orientation or gender identity with staff at long-term care facilities, and 89 percent of respondents were concerned about facing discrimination from staff. It’s the prime reason, other than financial hardships, that many trans people stay away from these facilities even though they might need long-term care.
“If someone does go into a nursing home, it is absolutely critical that they be respected for who they are. Otherwise, it just feeds into hopelessness,” Cook-Daniels says. “So when, when you say, ‘I don’t need to call you that name,’ you’re saying, ‘I don’t need to respect you.’”
An LGBTQ Bill of Rights
When it was proposed by Sen. Wiener in 2017, SB 219 was designed to be an LGBTQ seniors’ bill of rights.
“The goal was to make sure that LGBTQ people can age with dignity and are afforded basic respect as they age, especially in those long-term care facilities,” Garret-Pate said of the early talks surrounding the bill. A number of LGBTQ organizations worked with Wiener to pass this legislation to codify key protections than ensure LGBTQ seniors are treated with respect and don’t face harassment or discrimination.
“Among other things, the bill would make it unlawful, except as specified, for any long-term care facility to take specified actions wholly or partially on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status, including, among others, willfully and repeatedly failing to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns, or denying admission to a long-term care facility, transferring or refusing to transfer a resident within a facility or to another facility, or discharging or evicting a resident from a facility,” according to the legislation.
The reality is that despite most trans elders’ avoidance of long-term care facilities, many from ages 50 and up will likely need more long-term care assistance as they age.
In 2013, the San Francisco LGBT Aging Policy Task Force commissioned a report by Professor Karen Fredriksen-Goldsen of the University of Washington called “Addressing the Needs of LGBT Older Adults in San Francisco: Recommendations for the Future.” It was based on information collected from over 600 LGBT seniors residing in San Francisco, including nearly 140 LGBT seniors of color. The study revealed that nearly 60 percent of the study participants lived alone. Of the 15 percent of the participants who had children, 60 percent reported that their children would not be available to assist them.
According to the study, many trans seniors in the sample reported poor physical and mental health, with nearly one-third of all respondents reporting poor general health. Nearly one-half reported having one or more disabilities, and one-third of male participants reported that they were living with HIV or AIDS. When compared to seniors in San Francisco generally, LGBT seniors have a heightened need for care, but often lack family support networks available to non-LGBT seniors. On top of that, nearly one-half of the participants in the San Francisco study reported experiencing discrimination in the prior 12 months because of their sexual orientation or gender identity.
“For a transgender person in a nursing home, if they have not had all their surgeries, they are outed every time they get into the care, whether it’s being helped with toileting, being bathed,” Cook-Daniels explains. “You cannot be closeted if you’re trans in a nursing home.”
Harassment vs. Free Speech
In the Third District’s ruling, the court recognized that misgendering may be disrespectful, discourteous, and insulting, and used as an inartful way to express an ideological disagreement with another person’s expressed gender identity. However, the court held, “the First Amendment does not protect only speech that inoffensively and artfully articulates a person’s point of view. At the very least, willful refusal to refer to transgender persons by their preferred pronouns conveys general disagreement with the concept that a person’s gender identity may be different from the sex the person was assigned at birth.”
Should the state choose not to appeal the ruling, LGBTQ community organizers and advocates say this will set a precedent allowing people to discriminate against and harass trans, gender non-conforming, and nonbinary seniors using a free speech argument.
“There’s a difference between going out into the public square and saying that you don’t like the LGBTQ community or disagree with how someone is living their life and then, targeted repeated intentional harassment of someone in a long term care facility,” Garrett-Pate said. “Those are not the same thing as protected speech. The other is conduct directed at a person with the intention of harming them and harassing them.”
Long-Term Support for Trans Elders
So what is the solution for trans elders who need care? Part of that answer, Cook-Daniels says, is peer support. Her organization the Trans Aging Network, originally formed in Wisconsin in 1998, has created a national network of support groups for trans elders who started by pulling together pieces of knowledge that various people had about trans aging. That eventually evolved into working with the American Society on Aging, hosting training for aging professionals and writing a number of publications for training professionals on how to care for trans elders.
“We roughly have two types of people that come in, one is the people who are new to transitioning and really need advice and referrals,” Cook-Daniels says. “And then we’ve got a solid core of people who’ve been with us for years and years and years, including some that have been with us from the beginning. This is a core part of their social network.”
Despite the current issues surrounding SB 219, California remains a leader in the studies on LGBTQ aging, Cook-Daniels says. “I don’t know any other state that has done as much because of SB 219, which mandates the training of healthcare professionals. That’s further than anybody else has gone, and is really critical,” she says. Training to update the standards of nursing, as well as public education on trans aging, will also help break down fears and false ideas people have about the trans senior community, Cook-Daniels says.
Recently, the Human Rights Campaign Foundation and LGBTQ senior advocate group SAGE launched the Long Term Care Equality Index, a guide that teaches long-term care facilities how be more knowledgeable and inclusive when caring for LGBTQ seniors in residential long-term care communities. These types of quality indexes have spurred businesses, governments and hospitals to do a better job of establishing standards of care for all seniors regardless of race, religion, gender or sexual orientation, Cook-Daniels says.
For LGBTQ seniors facing discrimination, initiatives like LEI promise to eventually establish better standards for care facilities that become more necessary at the end of their lives. However, Garret-Pate and other advocates say it’s also up to the state Legislature and the public to make the care and dignity of all seniors a priority.
“We as statewide LGBTQ civil rights organizations and sponsors of SB 219 have an obligation to safeguard these protections,” Garret-Pate said. “But so does everyone who thinks that seniors, regardless of their gender identity, have the right to age with dignity and respect, and long-term care facilities have an obligation to make sure that we safeguard these protections.”