Newly elected state Senator Scott Wiener (D-San Francisco) introduced a bill (SB 219) earlier this month aimed at criminalizing specific behavior within nursing homes he believes is discriminatory against those who identify as gay, lesbian, bisexual, and transgender. Refusing to use a person’s preferred pronoun, requiring identity documents from a resident who wants to use the opposite-sex bathroom, or prohibiting any sexual behavior among residents would result in a misdemeanor charge. There is no exemption for facilities operated by religious organizations, and according to Wiener’s office, there is no plans to add one.
“Our LGBT seniors built the modern LGBT community and were on the front line of so many battles to expand our civil rights,” Wiener said in a statement. “They deserve to age with dignity and respect and that means making sure our long-term care facilities have culturally competent policies and procedures in place.”
California Family Council’s President Jonathan Keller responded to the bill saying he believes everyone, no matter who they are, deserved to be treated with love, care, and respect. This is especially true for senior citizens. But he also believes the state has no right to force Christians and religious organizations to violate their faith. “No religious non-profit should face criminal prosecution for designating their bathrooms by biological gender,” Keller said. “Nor should anyone be forced to use a pronoun for someone that violates that person’s strongly held religious belief that gender is not a preference, but a biological, medically observable, objective fact.”
California already has some of the most liberal laws in the nation prohibiting discrimination based on sexual orientation, gender identity, or gender expression. But according to the bill language of SB 219, “the promise of these laws has not yet been fully actualized in long-term care facilities.” The bill text goes on to state that “the purpose of this act is to accelerate the process of freeing LGBT residents and patients from discrimination,” by spelling out what “discriminatory acts” are prohibited, and by letting LGBT residents know their rights and how to “vindicate” themselves against violators.
To justify the need for this bill, Weiner quotes a survey of LGBT individuals from a 2011 study published by the National Senior Citizens Law Center, which states 43 percent of those surveyed personally witnessed or experienced mistreatment of LGBT seniors.
Wiener’s press release lists half a dozen discrimination stories from the study. One tells of a woman’s lesbian friend who lived in a skilled nursing facility where the staff continued to call her by her given name, “Hazel,” and not by her preferred name “Rusty.” Another story told of a man who wasn’t showered for weeks at a time and it was thought the facility aide “may or may not be ‘comfortable’ helping a gay man bathe.”
The last two stories of discrimination listed told of seniors who were anxious and lonely living in assisted living facilities, because they feared what other residents would say about their sexual identity. “She felt too vulnerable to tell the truth,” wrote Nina L. from Carlsbad talking about her friend. “Frankly, I’m afraid of telling anyone that I’m gay,” wrote a 73-year-old from Sylmar.
Anyone found guilty of willfully or repeatedly violating any of these new rules will be charged with a misdemeanor. The bill has been assigned to be heard in the Senate Human Services and Judiciary committees. Hearing dates have not been set yet.
Keller believes some of the incidences of discrimination mentioned to justify this bill should be addressed administratively, but not with a heavy-handed law that lacks a religious exemption. “The government should never trample the First Amendment free exercise rights of faith-based nursing homes and hospice facilities,” Keller said. “We hope that Senator Wiener will reconsider his bill before proceeding further.”
