Federal Judge Says Lesbians Not Protected By Federal Civil Rights Law

Many LGBTQ elders struggle to find safe and supportive communities in their senior years.

Many LGBTQ elders struggle to find safe and supportive communities in their senior years. That struggle may now get worse after a federal judge ruled last week that a retirement community could legally discriminate against a lesbian couple based on their sexual orientation.

Spouses Bev Nancy and Mary Walch had partners for more than 40 years and applied to live in Friendship Village of Sunset Hills, a senior living community. The facility, however, rejected their application because of its internal “cohabitation policy” that restricts the ability to live together to married couples, with marriage defined as “the union of one man and one woman, as marriage is understood in the bible.”

After being turned away, the couple brought a lawsuit accusing the retirement community of sex discrimination, which is banned under the Fair Housing Act. The case has been making its way through the courts, but on Wednesday of last week, federal judge Jean C. Hamilton dismissed the case, finding that the discrimination by the retirement community was based on sexual orientation rather than based on sex and that federal civil rights law prohibiting sex discrimination “does not prohibit discrimination against homosexuals.”  Julie Wilensky, an NCLR senior staff attorney representing Walsh and Nance, told the Post-Dispatch  that the case was “a straightforward example of discrimination ‘because of sex.’”

“Planning for senior housing is a big decision, and Mary and Bev chose Friendship Village because it was in their community, they had friends there, and it offered services that would allow them to stay together there for the rest of their lives,” Wilensky said. “If Mary were a man married to Bev, instead of a woman married to Bev, Friendship Village would not have turned them away.”

The couple and their attorney are now determining their next steps, which may include asking the Supreme Court to weigh in on the issue. In the meantime, LGBTQ elders are still at risk of housing discrimination at the federal level.

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