In 2014, Lambda Legal successfully appealed the denial of Social Security survivor benefits on behalf of a 92-year-old transgender woman, Robina Asti, a World War II veteran and flight instructor. The Social Security Administration denied Robina’s claim stating that she was “legally male” at the time of her marriage to her spouse, disregarding the fact that Robina had been legally recognized as a woman for over three decades by state and federal agencies, including Social Security itself. Robina’s story and video brought international attention to transgender seniors and helped spark a policy change for the Social Security Administration. Robina was featured in People magazine and was named one of the Advocate’s “Prime Time 25: LGBT Seniors Making a Difference.”
LAMBDA LEGAL VICTORY IN DEATH BENEFITS CASE
FAQ For Transgender and Gender-Nonconforming Older Adults
I just entered a nursing facility and they’re refusing to give me the hormone therapy that I have been taking for years. Are they allowed to do that?
It’s definitely a violation of your rights under the Federal Nursing Home Reform Act (FNHRA) to be denied necessary care and appropriate treatment. Doctors have found transition-related health care to be medically necessary for many people; in 2008, the American Medical Association passed a resolution recognizing “an established body of medical research” that “demonstrates the effectiveness and medical necessity of mental health care, hormone therapy, and sex reassignment surgery as forms of therapeutic treatment for many patients…” (For a list of statements from medical professional associations supporting the medical necessity of transition-related health care, go to www.lambdalegal.org/publications/trans-insurance.)
Also, courts have repeatedly ruled that transition-related health care, including hormone therapy, is medically necessary when a doctor deems it so for an individual.
In 2011, in Fields v. Smith, a Federal Appeals Court affirmed transgender prison inmates’ rights to transition-related health care while incarcerated. (For our FAQ on getting access to transition-related care, click here. For our FAQ about overcoming health provider discrimination, click here.)
Staff at my nursing facility are rude to me because I’m transgender and do not allow me to dress according to who I am. Are they allowed to do that?
No. Under the FNHRA, “[a] nursing facility must protect and promote the rights of each resident.” This protection includes the right of residents to a “reasonable accommodation of individual needs and preferences.” Facilities must also “attain or maintain [a resident’s] highest practicable physical, mental, and psychosocial well-being.”
It’s a nursing facilities’ job to ensure that you are treated with dignity and respect while in their care. As for your clothes, gender transition is now widely recognized by the medical community as benefiting a transgender person’s psychological well-being, and one critical component is being able to live and be seen and treated by others in a manner consistent with one’s gender identity.
What if I am denied housing because I’m transgender?
The Fair Housing Act (FHA) is a federal law that protects you from being denied housing, public or private. What’s more, the U.S. Department of Housing and Urban Development (HUD) stated in 2012 that gender identity discrimination is prohibited in its programs. If such a thing were to happen to you, it would also be a good idea to find out if your state or municipality has a nondiscrimination law covering gender identity and expression, because such laws cover housing, including nursing facilities.
Can I decide who can and can’t visit me in a hospital or nursing facility?
Yes. Since 2010 federal regulations empower patients in hospitals to choose their own visitors. Also, hospitals are barred from discriminating against visitors based on race, ethnicity, religion, sex, gender identity, sexual orientation or disability. In addition, the FNHRA specifies that residents of nursing facilities have the right to designate who they want to visit them. Hospitals and nursing facilities are required to inform patients and residents of these rights. There are no federal standards for assisted-living facilities, but state laws generally include some right to have visitors, although the extent of such rights varies from state to state.
My nursing home roommate is verbally abusive because I’m transgender. Am I allowed to get a replacement?
You don’t have to tolerate abuse from either roommates or staff. Under the FNHRA, a nursing home resident has the right “to be free from physical or mental abuse” and “to prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents.” The nursing home is also prohibited from forcibly isolating you from other residents.
How can I make sure that I have the most possible control over my future as a transgender older adult?
If you don’t already have a last will and testament; a living will; and a medical and financial power of attorney, getting those signed and distributed to the right people should be your first step. Also, if you have any special wishes about your funeral or disposition of your remains, it’s a good idea to writethose down as well and include them with the other documents. TGNC people who are estranged from family often find their gender identity or expression disrespected during the burial process.
If you are married or have kids, talk to a lawyer or estate-planning expert to make sure your wishes for your family are clear and can’t possibly be reversed by someone trying to intervene if you die or become incapacitated.
For more information about medical and financial planning, check out Lambda Legal’s “Take the Power: Tools for Life and Financial Planning” at www.lambdalegal.org/take-the-power.
I struggled for years over my gender identity and now I’m finally ready to transition. Should I be worried that I’m too old, physically, for hormones or surgery?
In 2014, a U.S. Department of Health and Human Services (HHS) review board ruled that the National Coverage Determination (NCD) policy of denying Medicare coverage of all transition-related surgery is not valid and that it can no longer be used to deny claims for Medicare coverage of transition-related surgery. This overturned a policy that had banned coverage for transition-related surgery for nearly 50 million beneficiaries. What the ruling means is that if you rely solely on Medicare for health coverage, as many transgender seniors do, you will now have access to the procedures that your doctors deem medically necessary.
Beyond its direct impact for Medicare recipients, this ruling also marks a broader victory for transition-related health care. Currently, very few insurance companies and employers, private or public, cover gender-affirming surgery in their health insurance plans despite both the medical consensus on the necessity of this care for transgender people and the data showing that insurance companies that do cover gender-affirming surgery are able to do so at minimal cost. HHS’s ruling adds to the increasing recognition of the importance of individualized assessments of the health needs of transgender people, removing a discriminatory obstacle to equal and appropriate health care.
NURSING HOME RIGHTS: The Federal Government Protects You
The Federal Nursing Home Reform Act, enacted in 1987, is a comprehensive federal statute that creates a minimum set of standards of care and rights for people living in Medicare and/or Medicaid-certified nursing facilities. A 2009 case (Grammer v. John J. Kane Regional Centers) gave the FNHRA teeth by determining that it can be used as the grounds for a civil lawsuit against a public nursing facility. The FNHRA guarantees these rights:
• Staff must provide “care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being.”
• Staff must maintain patients’ “abilities in activities of daily living” such as bathing and dressing, unless health problems require changes.
• Patients have “free choice” to choose a physician and to be fully informed about care and treatment.
• Patients must be “free from interference, coercion, discrimination, and reprisal” for exercising their rights under the FNHRA.
FOR MORE INFORMATION: Contact Lambda Legal at 212-809-8585, 120 Wall Street, 19th Floor, New York, NY 10005-3904. If you feel you have experienced discrimination, call our Help Desk toll-free at 866-542-8336 or go to www.lambdalegal.org/help.