Lesbian, gay, bisexual, and transgender individuals and couples have made great strides in achieving civil equality since the emergence of the modern gay-rights movement from Stonewall in New York in 1969. I have had the pleasure of reporting on legal victories leading to the repeal of Don’t Ask, Don’t Tell and major blows to California’s Proposition 8, as well as the federal Defense of Marriage Act. I am fortunate to be of the generation where adult adoption of a same-sex partner as a work-around to estate planning issues is history and not reality. And I must admit that my life as an out and partnered gay man is quite easy living in the wake of those pioneering trailblazers who have gone before me. But those trailblazers are at least two generations removed from my partner and me, a typical married couple residing in the bedroom community of Riverside. Most of them were quite content to reject traditional family structures if their families rejected them for who they were and their civil rights were rejected in the name of “family values.” They built communities and formed their own “families” in urban enclaves like San Francisco’s Castro District, L.A.’s West Hollywood, and even a large swath of our very own Palm Springs.
As LGBT civil rights progressed, and homophobia was replaced with familiarity and tolerance, LGBT individuals took on more traditional family roles as sons and daughters, aunts and uncles, and – increasingly – mothers and fathers. With these traditional family roles came the benefits of traditional family support. But what of that lost generation of the aforementioned trailblazers? For a movement that started 43 years ago, surely some of them must be less concerned with LGBT civil rights and more concerned with elder rights. Some of them are dealing with the hard intersection of LGBT and elder rights issues as their “family” advocates are not given the same legal status as a traditional family advocate, like a spouse or child, to carry out end-of-life planning and estate distribution. Gary Gates, a scholar and demographer at UCLA Law School’s Williams Institute, has studied U.S. Census data going back to 1990 (when same-sex parenting couples were first identified), and found that the percentage of same-sex unmarried partner couples with children under the age of 18 in the home has increased from 12.5% in 1990 to a peak of 18.8% in 2006, down to 16.2% in 2009.1 But that means that 83.8% of unmarried same-sex couples do not have children. They have been referred to flippantly as DINKs (Double Income, No Kids),2 but with the economic downturn and a more sophisticated understanding of LGBT demographics, the joke is not as funny; some of them may be OINKs (One Income), LINKs (Low Income) or NINKs (No Income). Some of that may be by choice or circumstance, but some of that is by policy design (i.e., North Carolina’s recently passed Amendment 1 and other anti-marriage equality and anti-adoption equality laws).
You may think that passing marriage and adoption equality measures would be an easy fix to this problem. But that fix applies mostly prospectively for select LGBT couples, and it doesn’t address the issues highlighted above that affect their similarly situated heterosexual counterparts: childless couples, people estranged from their traditional family, and unmarried cohabitating couples. In her book, Beyond (Straight and Gay) Marriage: Valuing All Families under the Law (Beacon Press, 2008), Law Professor Nancy Polikoff lays out the argument that structuring social rights and benefits around marriage ignores the reality of an increasing number of couples and individuals who structure their lives around, “diverse kinds of partnerships, households, kinship relationships and families.”3
Even a legislative fix is only half the battle for these families. Consider the 2010 case of Clay M. Greene and Harold Scull, a same-sex couple from Sonoma County, CA.4 When Mr. Scull, 89, suffered a fall down the stairs in April 2008, the county petitioned the court for conservatorship and then proceeded to dispose of nearly $500,000 worth of belongings accumulated by the couple over the years. It characterized Mr. Greene, 78, as the “roommate,” despite documentation they had prepared in case of the death or incapacitation of either party and the reality of their relationship. It then moved the understandably antagonistic Mr. Greene into a nursing home against his will. On top of the loss of property and dignity, Clay Greene also lost his longtime partner in August 2008.
Fortunately, Mr. Greene was able to recover a substantial sum of money, as well as to force a change in policy at the Sonoma County Public Guardian’s office. But this case just highlights the need for our laws and the people charged with enforcing them to treat all elderly couples and individuals, gay and straight, with respect and dignity, regardless of how they choose (or are forced) to structure their family.
