Overall, MAP found that LGBTQ seniors are among the most vulnerable group to religious exemption rules because of their reliance on regular services in the arenas of health, employment and general care. Should religious exemption rules extend further, they stand the risk of losing access to critical benefits that they rely on at a higher rate than younger LGBTQ adults.
Picture someone in the LGBTQ community, and the image is often of a young and affluent person. However, according to the U.S. Census Bureau, the population of the nation's people aged 65 years and older is set to double by 2050, to almost 84 million. And, public perception aside, it is estimated that there are nearly 3 million LGBTQ adults who are 50 years or older living in the U.S. today.
These statistics are part of a December 2017 report conducted by the Movement Advancement Project, Public Rights/Private Conscience Project and SAGE: "Dignity Denied: Religious Exemptions and LGBT Elder Services." These three groups worked together to create a study highlighting that LGBTQ seniors are an especially high-risk group in the battle for and against religious exemptions.
MAP is an independent think tank that provides research to aid LGBTQ people in attaining equality, The Public Rights/Private Conscience Project examines how religious liberty rights conflict with fundamental rights to equality and liberty and SAGE is the country's largest and oldest organization dedicated to improving the lives of LGBTQ older adults.
What follows is a summary of the study's findings, and how they relate to Michigan:
Harassment is Alive and Well in Senior Care Facilities
The study found that the majority of healthcare services for the aging are offered by religiously-affiliated organizations — about 85 percent. This affiliation could be part of the reason that LGBTQ older adults have reported discrimination when accessing a variety of services like "at work, at the doctor's office, within residential communities and when seeking housing and when accessing social supports like community centers."
Of the group of nearly 800 LGBTQ seniors who were surveyed, almost half of those who had entered long-term care had experienced some type of discrimination or mistreatment.
- 23 percent of these incidents were based on a resident's involved verbal or physical harassment from other residents.
- 20 percent involved refusal to admit or re-admit a resident.
- 14 percent of incidents were committed by staff.
These seniors frequently find themselves at the mercy of organizations that are religiously-involved. According to the American Civil Liberties Union, 14 percent of hospitals in the U.S. have a religious affiliation and make up almost a fifth of all hospital beds in the country.
If religious exemption laws expand, services at risk of disappearing in many health organizations include same-sex visitation rights, admitting LGBTQ adults to emergency medical care or providing care, giving loans or housing vouchers and Medicare and Medicaid-funded hospitals could refuse service to LGBTQ seniors.
Religious Exemption Laws Only Stand to Expand
According to the study's findings, federal and state policymakers and activists are working to allow religious organizations across the U.S. the ability to discriminate against LGBTQ people. LGBTQ seniors, who frequently rely on the services of these groups, are those who stand to lose the most. There are four main avenues to increasing this discriminatory behavior:
- Executive orders and agency guidance that permits discrimination by federal contractors and grantees, as well as government employees.
- State religious exemption laws that in some states already permit medical professionals to decline service to LGBTQ people.
- Increasing permissions to deny service, and potentially serious implications from the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which a baker refused to bake a wedding cake for an LGBTQ couple. The case is currently under consideration by the U.S. Supreme Court and a ruling is expected by the end of June.
- Court Cases that permit discrimination in employee benefit plans, that "could result in discrimination in pension and insurance benefits."
Currently, Michigan is one of seven states to permit child welfare agencies to "refuse to place and provide services to children and families, including LGBT people and same-sex couples, if doing so conflicts with their religious beliefs." Michigan is also one of 29 states to have "no public accommodations non-discrimination law covering sexual orientation or gender identity." This means that organizations could continue to receive funding while actively discriminating.
Executive Orders and Agency Guidance
In October 2017, both the U.S. Departments of Jusice and Health and Human Services released "sweeping" religious exemption guidance and regulation. (Though not included in the report, an example of regulations like these happened at the start of 2018. The HHS announced a new department called Conscience and Religious Freedom.) Based off these rulings, any employer or insurance company is now able to refuse to provide coverage for contraceptives due to religious or "moral" reasons, regardless of being publicly funded.
The report found that in 2014 alone, the federal government gave $1.88 billion to providers in the aging networks through grants, contracts or reimbursements, serving almost 11 million older Americans.
If religious exemption laws expand, services at risk of disappearing in many health organizations include same-sex visitation rights, admitting LGBTQ adults to emergency medical care or providing care, giving loans or housing vouchers and Medicare and Medicaid-funded hospitals could refuse service to LGBTQ seniors.
State Religious Exemption Laws in Michigan
Currently, 21 states in the U.S. have laws in place that allow people, churches and nonprofit organizations to seek religious exemptions. For now, Michigan has no broad religious exemption law. According to the report, the "broad" language of these rules allows for those seeking exemptions to test the boundaries of their state's discrimination rules.
Currently, Michigan is one of seven states to permit child welfare agencies to "refuse to place and provide services to children and families, including LGBT people and same-sex couples, if doing so conflicts with their religious beliefs." Michigan is also one of 29 states to have "no public accommodations non-discrimination law covering sexual orientation or gender identity." This means that organizations could continue to receive funding while actively discriminating.
The Implications of the Masterpiece Cakeshop Case
The Colorado baker involved in the U.S. Supreme Court case Masterpiece Cakeshop, Lt. v. Colorado Human Rights Commission, is directly challenging Colorado's statewide law that prohibits discrimination on the basis of sexual orientation and gender identity. He argued that his position as a baker gave him the "artistic" free speech under the First Amendment to refuse service to the gay couple who requested a wedding cake, because the cake conveyed a message with which he did not agree.
Though a decision is not expected by SCOTUS until June, if the court rules in the favor of the baker, the study reports that the implications could be far-reaching.
"An older LGBT person could be denied any service that might remotely be seen to include a 'creative' element, including long-term care, programming at senior centers, congregant meal sites and even health care," the report stated.
The study also reported that businesses could also potentially even refuse to provide basic services like meals, or as in a recent case where an LGBTQ widower was refused service by a funeral home.
Discrimination in Employee Benefits Plans
Currently, organizations that are based upon religion, like houses of worship or religious schools, are legally allowed to hire people who follow the same religion as long they do not discriminate around race or disability. The study reports that recent court rulings are paving the way for this to extend to religiously-affiliated health service providers like Catholic hospital systems. Organizations like these are arguing that their affiliation could qualify them to gain similar exemptions to places of worship.
A 2017 court case in which SCOTUS ruled in favor of a religiously-affiliated hospital that had a "church plan" which regulated employee benefits, and sought religious exemptions on it. The ruling found that "church plans" neither must be established, nor maintained, by a church to qualify for the exemption."
The study estimates that the U.S. has hundreds of thousands of employers that identify as religiously-affiliated, and provide work to millions of employees. If employers were able to prove that they too followed a "church plan," the plan may not be subject to federal anti-discrimination rules.
Conclusions
Overall, the study found that LGBTQ seniors are among the most vulnerable group to be impacted by religious exemption rules because of their reliance on regular services in the arenas of health, employment and general care. Should religious exemption rules extend further, they stand the risk of losing access to critical benefits that they rely on at a higher rate than younger LGBTQ adults.
The full report can be found online at lgbtmap.org/dignity-denied-lgbt-older-adults. SAGE Metro is a Ferndale-based branch of the organization. They can be found online at sagemetrodetroit.org.
