In 2015, when the U.S. Supreme Court ruled in the Obergefell v. Hodges case that marriage equality was the law of the land, the lesbian, gay, bisexual, transgender and queer (LGBTQ) community celebrated, but only briefly. Marriage is only one step in a lifelong partnership between two people, and many within the LGBTQ community have found that even though they are married, they are not treated the same as a heterosexual couple would be. The discrimination becomes more pronounced as LGBTQ people age, and often LGBTQ seniors have difficulty accessing the same assistance and opportunities, like senior living accommodations, available to heterosexual seniors. In a recent instance, a lesbian couple from St. Louis, Missouri applied to a senior living community in 2016 and found out shortly thereafter that their admission was denied because the community had a “long-standing policy” that precluded a lesbian couple from cohabitating.
Mary Walsh, 72, and Bev Nance, 68, applied to the senior living community, Friendship Village, in Sunset Hills, Missouri, a suburb of St. Louis. They were impressed and immediately put $2,000 down to secure a spot in a shared accommodation. Friendship Village provided the option of incrementally increased care should one of them become ill. If one of them were moved to the assisted living section of the community, or even the nursing home on Friendship Village’s 52-acre property, Walsh and Nance would still be able to have dinner together and spend time with each other. The ability to be together through the remaining years of their lives was of significant importance to the couple. At that time, neither asked whether or not two married women cohabitating was a problem. Walsh told the St. Louis Post Dispatch that when she asked an employee at another retirement community the wives toured if there would be any issues with their relationship, the employee seemed surprised that there might be an issue and so Walsh didn’t ask the question again. “I thought, ‘Well, this has all been resolved with the Marriage Act, isn’t this great.’ So when we visited Friendship Village on several occasions, I never asked the question.”
Walsh and Nance, who have been together for 37 years and were married in 2009 in Massachusetts, put their deposit down and went on a waiting list. When their names came up in July 2016, they received a letter denying their housing arrangement and stating “Your request to share a single unit does not fall within the categories permitted by the long-standing policy of Friendship Village Sunset Hills.” This “long-standing policy” is that cohabitation is only allowed between siblings, parents and children, or spouses. Friendship Village, which according to their website provides a “fulfilling, worry-free lifestyle” which is “guided by Biblical values,” defines marriage only as one man married to one woman.
Walsh and Nance, and their attorneys from the National Center for Lesbian Rights, the ACLU, and the Washington-based firm Relman, Dane & Colfax, filed a discrimination suit seeking a court order requiring Friendship Village to develop policies and procedures designed to prevent discrimination of any kind and requesting a permanent injunction to keep Friendship Village from denying Walsh and Nance entry. The lawsuit alleges Friendship Village violated the Fair Housing Act as well as Missouri’s Human Rights Act. However, same-sex couples are not currently protected under federal housing law and Friendship Village is a private company, meaning they are potentially allowed to continue their discrimination. According to one St. Louis-area law professor the discrimination could continue because private companies may decide not to rent a room to someone under First Amendment freedom of association law. “They’re probably entitled to their deposit back,” said Anders Walker, a St. Louis University constitutional law professor. Other legal scholars have said this case would put the Fair Housing Act to the test with regard to sexual orientation. Recent rulings in federal courts have stated that Title VII of the Civil Rights Act of 1964 protects against discrimination based on sex, which is listed as a protected class. A case like this one could argue sexual orientation discrimination is a form of sex discrimination because it is based upon the sex of both parties in a relationship. If either Walsh or Nance were a man, they would not have been denied a cohabitating unit because their marriage would have fit within Friendship Village’s limited definition.
Activists for LGBTQ seniors have said for years that discrimination is worse for LGBTQ people. In 2013, the Equal Rights Center conducted a study that found about half the time, senior housing facilities were more likely to discriminate against same-sex couples than opposite-sex couples. The discrimination included being shown fewer units to choose from, being charged more, being less likely to receive or even be given information on financial incentives, and were put through more hoops in the application process. LGBTQ seniors are less likely than straight seniors to have children and are more likely to have estranged family, and they often have to rely on professional care and services where straight seniors would have family support. LGBTQ seniors have reported disrespect by staff members, harassment, religious proselytizing and refusal to recognize their same-sex relationships as legitimate. As a result, LGBTQ senior citizens often opt to return to the closet. A lawsuit stemming from one such situation, Wetzel v Glen St. Andrew Living Community, is awaiting a ruling on appeal from the U.S. Court of Appeals for the Seventh Circuit after the suit was dismissed for failure to show discriminatory intent. Many major U.S. cities have responded to the discrimination by securing funding for senior communities to obtain sensitivity training and ensure seniors don’t face discrimination in their golden years because of their LGBTQ status. The LGBT Elder Initiative is an organization based in Philadelphia that focuses specifically on the rights and opportunities of LGBTQ seniors. Philadelphia is also home to John C. Anderson Apartments, an apartment community in Center City designed specifically for LGBTQ seniors to have a safe housing option within Philadelphia.
Marriage equality, while a significant step in the fight for LGBTQ rights, is only one of many important battles moving through the courts right now. Lawsuits like Walsh and Nance’s could secure stronger LGBTQ protections in areas like housing equality and senior services, or they could give a pass to those using religion as a means of denying LGBTQ citizens equal rights. Mary Walsh and Bev Nance want to spend their remaining time together at a facility that will provide them both the professional support and the dignity they deserve. Their case, and ones like it, will be decided by the courts in the next few years and have far-reaching consequences on the lives of the entire LGBTQ community.
Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real estate law and civil rights. Her website is www.giampololaw.com and she maintains two blogs, www.phillygaylawyer.com and www.lifeinhouse.com. Contact her at firstname.lastname@example.org.