Fighting for Fairness and Equality Through the Legal System
by Doni Gewirtzman
In response to the unique needs of older lesbians and gay men, Lambda Legal Defense and Education Fund made a commitment in 1998 to expand our impact litigation and advocacy efforts on their behalf. As a Skadden Fellow, I will spend the next two years as a staff attorney at our national headquarters in New York specializing in legal issues affecting older lesbians and gay men, and working with individuals and groups to address homophobic discrimination and abuse targeted at older gay people.
Founded in 1973, Lambda is the nation's oldest and largest legal organization serving the needs of lesbians, gay men and people with HIV and AIDS through litigation, education and public policy work. With our new initiative, we are especially aiming to help older members of our community who have limited economic resources, although there is no needs-based requirement for Lambda's advocacy or litigation assistance.
Lambda's expertise is in impact work, a specialized type of legal practice that makes us different from a typical law firm. Impact work involves legal disputes or policy issues that directly affect a large number of lesbians or gay men, that establish a legal precedent or policy change to eventually help many members of our community, or that can be used to attack misconceptions about gay people and to expose common forms of discrimination. Beyond litigation and policy advocacy, Lambda's work encompasses efforts to educate our community and others about their legal rights and responsibilities. Our education efforts also try to increase the visibility of certain populations within the gay community, such as older lesbians and gay men, that are particularly susceptible to discrimination and harm.
We have already identified a number of specific areas where we believe Lambda's experience and expertise may be of particular assistance to older lesbians and gay men. These center around sexual orientation discrimination, abuse, and the silencing of gay identity in settings that are unique to or especially problematic for older gay people. Lambda's ongoing work to increase the legal recognition of gay family relationships through access to marriage or domestic partnership also is vitally important to this part of our community. Until the legal status of our relationships is firmly established, older gay people in particular need to specify their wishes through wills, powers of attorney and other documents. Hence, Lambda's new initiative will make sure that older lesbians and gay men are educated about their legal planning needs and options.
Combating Discrimination
Exclusionary or hostile residential environments pose one difficult challenge for older gay men and lesbians. Discriminatory treatment in housing can manifest itself in a number of different forms, from a refusal to admit an openly gay resident to a retirement community to a nursing home's failure to take action against antigay harassment. Discrimination in housing presents additional obstacles for older people who are involved in relationships. For example, assisted living facilities are often reluctant to afford gay people the same privacy rights as their heterosexual counterparts and may prevent same-sex partners from sleeping together in the same room.
Discrimination also can hit older gay people who are active in their communities. Businesses, recreational organizations, volunteer opportunities and other community activities that are open to the public may nevertheless attempt to deny equal access to lesbians and gay men. Older people who experience discrimination by such entities--known in legalese as "public accommodations"--are often entitled to legal protection by state or local laws that forbid discrimination based on sexual orientation.
In the healthcare arena, some medical practitioners either refuse to treat older lesbians and gay men or do not present their patients with the full range of available medical choices and opportunities. These sorts of practices are all too common, for example, among the growing population of older people with HIV. This type of discrimination often exacts a significant emotional toll on patients above and beyond the additional health risks it causes. Like discrimination in housing and community participation, ending unequal treatment can add significantly to the quality of life and dignity of older lesbians and gay men.
Sometimes antigay discrimination takes on a particularly ugly form: sustained abuse that targets a single individual for mistreatment. Past issues of OUTWord have already addressed the considerable harm that physical, emotional and psychological abuse can wreak upon older lesbians and gay men. From repeated verbal harassment or physical confrontations with neighbors to ongoing mistreatment by a home healthcare assistant, abusive conduct has a devastating effect on its victims. These sorts of tragic circumstances are another important target for Lambda's advocacy and litigation tools.
Another serious problem for older lesbians and gay men, both within and outside of the gay community, is invisibility. This silencing of gay identity can be particularly destructive for elders, cutting off access to relationships, feelings and memories at a time when the ability to treasure and contemplate the past becomes paramount. When censorship is imposed by public institutions that restrict gay-related expression, forced invisibility can threaten the rights of older gay people to freedom of speech and freedom of association guaranteed by the First Amendment.
Educating Judges and Our Community
Beyond our efforts to target discrimination, abuse and invisibility, Lambda's work on behalf of older lesbians and gay men extends to education. We have started to educate the judiciary about the life experience of older gay people and the obstacles they face as a way of encouraging a more informed and sensitive response by judges.
A recent New Jersey case in which Lambda participated, Arzig v. Benkendorf, offers an example of how impact work can use a friend-of-the-court brief to expand a judge's knowledge. The case concerns a gay male couple, Bruce Arzig and Carl Benkendorf, who had been together since 1959 and lived in a New Jersey apartment owned by Benkendorf for almost two decades. Throughout their years together, Benkendorf made a number of oral promises that he would provide for Arzig's well-being after his own death.
After Benkendorf died four years ago, Arzig remained in the apartment and ran Benkendorf's former floral business in the same building. When Benkendorf's family belatedly launched eviction proceedings earlier this year to kick Arzig out of the home he and Benkendorf had shared, Arzig filed a lawsuit asking the court to enforce Benkendorf's oral promises and to stop the eviction. The trial court ruled on a supposedly "equitable" basis for the Benkendorf family, holding that Arzig had waited too long after Benkendorf's death to bring his legal claim.
On appeal, Lambda filed a brief seeking to educate the court on the unique difficulties Arzig confronted in seeking to assert his legal rights and the equities on his side. By explaining that the trial court should have considered Arzig's closetedness and his life experience forged within the historical context of the 1950s, when homophobia and antigay discrimination by public institutions were rampant, we illustrated how Arzig's delay in filing suit was attributable to his fear of revealing his sexuality in a highly public venue like a court of law. We also presented the court with social science research that augmented Arzig's lawyer's own presentation.
While the outcome of the suit is pending, the case illustrates how essential it is for older gay people to seek legal advice and assistance when developing a plan for the future. Because same-sex relationships are largely denied automatic legal protection and benefits by the government, gay men and lesbians need to draft valid, individualized documents to see that their medical and property distribution wishes are respected. Lambda is working to make sure that older members of our community avoid the problems experienced by Bruce Arzig.
If you are aware of specific instances of discrimination, abuse or censorship harming older gay men or lesbians, I encourage you to contact me in New York or to call one of our regional offices in Chicago, Los Angeles or Atlanta. Lambda is also available to help you or your clients find legal resources, even if we might not be the right organization to help directly with a particular problem.
We need to hear from you about issues you or your clients are facing so that we can best direct our work and find potential clients for litigation and advocacy initiatives that will benefit a large number of older gay men and lesbians. As Lambda's work in this area develops, I hope that our collective efforts to combat discrimination will help to ensure fairness and equal treatment for all members of our community, regardless of their age.
Doni Gewirtzman is a staff attorney (awaiting admission to the bar) at the national headquarters of the Lambda Legal Defense and Education Fund in New York. He can be reached at (212) 809-8585, ext. 242, or at dglldef@aol.com. Further information on Lambda is available on the Web at www.lambdalegal.org.
copyright © 2001 American Society on Aging; all rights reserved.
