Alex Blaze

An LGBT, beyond marriage win

Filed By Alex Blaze | April 16, 2010 11:00 AM | comments

Filed in: Living, Marriage Equality, The Movement
Tags: beyond marriage, chosen family, health care reform, hospital visitation rights, LGBT

Obama released a presidential memo late yesterday to allow people to choose who gets to visit them and who gets to act as health care proxy, effectively banning hospitals that participate in Medicaid or Medicare (almost all of them) from not letting LGBT people visit their partners:

Initiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy. You should also provide that participating hospitals may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability.

While CBS and other media are reporting this as Obama allowing gays and lesbians partner visitation rights and the right to be health care proxies, but it's more than that. This is a "beyond marriage" win modeled on the North Carolina statute that lets people make their own medical decisions and decide who can visit them in the hospital, including LGBT people.

Families are changing, and laws that try to define who is important to you instead of letting you decide who is important yourself are out-dated and paternalistic. This is a step in the right direction, although I'd still be concerned with accessibility.

As Bilerico contributor Nancy Polikoff put it described the need for advance health care directives:

The rhetoric goes roughly like this...A lesbian is denied the ability to see her hospitalized partner; spouses are allowed to visit each other in the hospital; therefore lesbian (and gay) couples must be allowed to marry so they can visit each other in the hospital. So then Obama steps into this conversation, saying that we can't agree on marriage but we can agree that couples who can't marry should still be able to visit each other in the hospital.

But try this. Hospital accreditation standards include those who play a significant role in a patient's life, even if not legally related, within the definition of family. Neither gay nor straight couples should have to marry to visit each other in the hospital. Gay people without partners need assurance that those they love and consider family will be allowed to visit them in the hospital. Consider that LGBT people may be more likely than heterosexuals to move away from unsupportive families of origin and/or to more accepting cities or towns.

If we make any discussion of hospital visitation policies about same-sex couples, we are going to miss the vast numbers of unpartnered LGBT people who don't want their estranged parents given hospital access while their closest friends are kept out or who don't want to be left all alone because their families of origin live at a great distance and their families are choice are excluded.

As a policy, I think we can all agree that this is a step in the right direction. I'm going through a few rightwing sites and I'm not finding anything about this, although maybe they were just caught off-guard.

As for the politics, Andy Towle captures the sentiment of the few people I've talked/emailed with since this memo was released:

Still, a powerful step in the right direction. Let's hope it's not (as I fear it might be) strategically timed to try to quash disappointment over stalling, inaction, and/or loss on some of the larger and more comprehensive issues that are pending in our legislature, like ENDA and DADT.

Well of course it is. That's why it's being released now, as midterms are revving up and donors are needed, instead of some time in 2009. At least it shows that they're not really afraid of the Religious Right, at least not on this issue.

But I'd say there's about a 1% chance of LGBT people generally being appeased with this move. If you ask the average gay person who's angry at Obama, the Democrats, and Congress for not providing "FULL EQUALITY NOW" which ten of the 1100+ benefits from marriage currently denied to same-sex couples are the most important to them, it's unlikely you'd get a complete response. The idea is more about symbols of inclusion, along with the instances of discrimination that people have personally encountered.

In other words, notice how hate crimes legislation is totally forgotten by the folks saying nothing's happened for us since the last election. Those people's disappointment isn't going to be easily "quash"ed.

Anyway, I'm willing to w00t this development for now. Then, after the weekend, it's back to being mad about the fact that I can be fired from a job just for being gay. There's no contradiction there.

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SkepticalCidada | April 16, 2010 11:08 AM

Yes, Alex, it is a nice gesture, but be wary of falling for White House spin.

This is not, as you say, more than rights to visitation and proxies; it is considerably LESS than that. The statement makes explicit that it is establishing no new rights. The only enforcement mechanism would be withholding federal funding from a hospital, and there is no way HHS is ever going to do that. That means there's no effective enforcement mechanism when a hospital just ignores this.

Moreover, health care proxies, powers of attorney, and those things are regulated by STATES. Either your state already provides for it or not. This order doesn't require states to provide for it and can't create any federal law of health care proxies or powers of attorney.

The time to establish RIGHTS was in the health care bill, but this administration deliberately refused to include provisions prohibiting sexual orientation discrimination, provisions that the House had already approved.

So, in the end, the administration refused to actually create enforceable rights when it had a chance and, instead, is issue some nice-sounding language that has no credible enforcement mechanism and creates no rights. This is little more than pretty words. Rather than give a happy speech and then doing nothing, they're now trying to pretend to be doing something by putting the symbolic happy words in a regulation with no teeth.

Well I for one think its a big fucking deal. This is a really big big fucking deal for people who don't live on a liberal oasis on the east or west coast- for people who won't see marriage equality in the next ten years in their state (the south / middle states).

This will make a real immediate impact on the lives of many working class people who don't have the money / time / etc to go through all the legal bullshit- that still wasn't a promise that you'd be able to see your partner at a time of need.

As someone who had to fight to get into an emergency room when my boyfriend at the time was having a massive brain tumor removed- this surely does matter.

And for the record- please submit proof that "administration deliberately refused to include provisions prohibiting sexual orientation discrimination, provisions that the House had already approved." There was one way to get the Health Care bill passed- and that was swallowing the Senate bill whole. Sometimes the world doesn't simply revolve around our issues, as much as I would like it to.

I am very impressed with this move in the right direction. And for so many in the fly-over states, this will have the most impact on their LGBT lives than anything done by Congress or the White House yet.

Good work Obama- keep it coming.

And finally- as Alex and Nancy have said before us- this is a really concrete move by the federal government to recognize the changing demography of the U.S. Family and will be of benefit to a lot of non-LGBT people as well.

I'll get angry about ENDA and DADT on Monday, but today and this weekend I'm going to celebrate this victory.

Savor the victories because they are few and far between....

SkepticalCidada | April 16, 2010 4:15 PM

If this really accomplished anything, cap, I'd celebrate with you. But I'm not at all convinced that this will do anything to prevent that very kind of fight that you had. It creates no legally enforceable rights and has no real enforcement mechanism. Maybe hospitals will voluntarily comply, but if they don't, I don't see this as forcing them to change their practices.

This should have been in the health care bill. Tammy Baldwin tried repeatedly to get nondiscrimination language included in the final version of the health care bill. It was the administration that WROTE the final version of the health care bill.

Um, to one point...

HHS has withheld federal funding for hospitals on several times before.

This has led to more than a few hospitals closing their doors in the past, although these days, hospitals typically comply readily quickly, since part of the policy is to send a few warning letters first, checking with compliance.

I am among those people who believe that, given the huge range of crises Pres. Obama faced when he took office, he has done a pretty goddamn amazing job one year and three months into his administration. Anyone who is not impressed and thinks he should have accomplished more is being ridiculous. Sorry to be blunt. I'm not going to bother listing what he has addressed and accomplished. If you don't know, you're not criticizing him out of knowledge of the issues.

Every single constituent group with pent up frustrations and needs is banging on his door demanding to be first in line. Yay, Democracy! But be fair.

There's already some kitchen table lawyering going on declaring the stipulations of the memo are unworkable. I'm not a lawyer so I can't say. However, Barack Obama is and he has a stable of them at his beck and call. I believe these critics also tend to dismiss the memo as cynical pandering. Be that as it may, if it works, it works.

But will it work? The federal gov't routinely uses the power of the purse to modify behavior regardless of whether it ever exercises that power.

SkepticalCidada | April 16, 2010 4:08 PM

Yeah, NoelG, Obama was too busy with crises to not compare us to pedophiles and to not invite Rick Warren to deliver a prayer at the inauguration.

The "too busy" excuse expired months ago.

Michael @ | April 16, 2010 2:28 PM

1. There ARE times when looking the proverbial gift horse in the mouth IS justified. And when rainbows are forming over gay blogs due to all the moisture in the air from so many gullible queens wetting their Calvins, this is one of them.

This is just more of the same ObamaRahm pattern: everytime they've experienced or are facing gay outrage, they take down their box of cookies and crumbs and dole some out.

Exhibit A: the White House Tea Party for The Gays and the first time Gates blew up the "more humane DADT" balloon [which remains mostly hot air] came immediately after high profile/major donor gays boycotted the DNC LGBT fundraiser.

Exhibit B: his speech at the HRC dinner the night before the National Equality March was announced at exactly the same time it became clear that NEM was going to be larger than the [White] House Faggots had predicted.

Now, just as the curtain is being ripped off of the ObamaRahm conspiracy to kill DADT repeal by telling Congress to table it until after DEFAUTH is already signed and sealed and after midterms, as more and more LGBTs are saying they won't give a dime to the DNC for those midterms, and four days before he's going to face another huge crowd of angry gay protesters when he arrives at Barbara Boxer's fundraiser in L.A. Monday, The Box has been taken down again.

I wonder if this time he'll pass Dan Choi and all those rippling rainbow flags in his Presidential limousine then go inside and claim he doesn't understand what they're angry about as he did at that L.A. fundraiser last year.

2. This will NOT have "an immediate impact" on gay/trans couples nor anyone else. This was an ANNOUNCEMENT of oossible policies that are months and months away.

Partners of gay federal employees STILL don't have THEIR crumb and that annoucement was made nearly a year ago.

3. But what is probably going to happen soon is the revelation that ObamaRahm will make a "conscience" exception for hospitals run by Catholics or other religiofascist groups because "God is in the mix."

In any kind of hospital, all a straight person has to do is SAY, "I'm his husband" or "I'm his wife" and the waters part and they're immediately shown to their spouse's room, allowed to make absolutely any medical decision, ad infinitum; treated like hallowed, haloed vessels of The Great Straight Nuclear Family in Excelsis, Hosanna, Hosanna!

Even in hospitals not officially exempted, medical emergencies are medical EMERGENCIES, and what is a gay partner going to do when some ignorant or religiofascist nurse or doctor says, "I don't care what Obama wants I'm not letting you see him/her or override what his/her homohating Mother wants even if you do have in your pocket or go home and get that piece of paper or have on a goddamn 'Yes We Can' t-shirt! SECURITY!"?

Call the ObamaNation police?

Call a Health & Human Services hall monitor?

Call HRC's sheriff's department?

4. Many of those rainbows are also forming from the tears being shed by the touching story of our fierce advocate's heart melted when he heard the story of the lesbian partner prevented from seeing her dying partner in Florida.

Bless her, her late partner, and their children but that was TWO YEARS before Obama was sworn in! Why is this just being announced 15 months after he had the authority?

In addition to being provided with LGBT rights goals all during the primaries and throughout the general election, LGBT groups had official meetings with ObamaRahm's transition team between his election in November and January 20th.

They provided not just To Do lists, but HOW To Do Them papers. Hospital visitation and medical decision authority was absolutely on those lists. Then AND NOW, how much more does it take than saying, "Treat LGBT couples as you would a straight couple or lose your Medicare funding. Period."?

Next up? 40 acres and a mule.

It's fascinating and unsurprising that Obama's directive -- which, as you note, leapfrogs marriage in order to give these rights to all people, not just married couples -- has gay conservatives like Andrew Sullivan (practically the inventor of gay marriage) very nervous.

Eric Payne | April 16, 2010 9:22 PM

I don't understand how you can label this a "beyond marriage win" for gays and lesbians.

The majority of gays and lesbians had already had the documents in place that, according to conservatives, gave gays and lesbians the "same rights as a married couple." Included in those documents is, almost always, a Durable Power of Attorney for Health Care Purposes.

All the president did today was issue an order that hospitals and health care providers no longer be allowed to simply ignore those documents.

With marriage, the powers granted our spouses would be automatic. There would also be a slew of other responsibilities and rights accorded the couple who is legally married.

"Beyond marriage"? No.

Bringing hospitals and health care providers up to date in the law (or, at least, up to... say... 1985 in the law)? Yes.

I'd love to see someone in the mainstream media, at the next briefing at the White House press room, push Our Fierce Advocate (or his press secretary) as to why it is necessary to issue an Executive Order forcing the nation's hospitals to follow the law in reference to powers of attorney regarding same-gender couples.

Bill Perdue Bill Perdue | April 17, 2010 1:22 AM

This is a good step and we'd welcome it more if it weren't for the fact that it's a clear signal that he's going to screw us on other issues, sans lube.

He always does. It's just a question of time.

It's better than another helping of Easter eggs, but there are still some 12 or 1300 rights we're denied because of Clintons DOMA and Obama's defense of its bigotry.

This will likely be another example of the Democrats approach to our agenda - one step forward, two (or four or six) steps backward. The only questions now are when will he backtrack and what the issues will be.

What we can be sure of is that he'll put that damn bus of his reverse and back over us.

Some media are reporting Obama was moved to action after reading about the lesbian couple kept apart at Jackson Memorial Hospital in Miami. But that case was heavily publicized many, many months ago. Why the delay in responding? Yes, I know, we must be grateful for every crumb. Now, how about giving gay/lesbian couples equal access to Social Security survivor rights? That's this month's issue, Mr. President.

Eric Payne | April 17, 2010 8:39 AM
"Some media are reporting Obama was moved to action after reading about the lesbian couple kept apart at Jackson Memorial Hospital in Miami. But that case was heavily publicized many, many months ago. Why the delay in responding... "

That one's easy to answer, Tom. Just look at the short history of Our Fierce Advocate in the Oval Office:

Our Fierce Advocate allows his Justice Department to file briefs defending DOMA - despite his campaign pledge to repeal it - at the federal level, and to have those briefs liken DOMA to laws governing those outlawing incest, child-marriage and bestiality.

Then we did something we've never done before: We, as a community, collectively withheld our support, including our financial support from the Democrat party, as a whole. Going into the annual May "gay Democrat fundraiser," where, in the past, the Democrat party has garnered millions of dollars in contributions for the party, OFA issued his Administrative Order that the partners of gay and lesbian federal employees be granted all the benefits granted straight spouses of federal employees.

The fundraiser was held; the total take was less than one-half million dollars; a substantial drop from previous years.

Then it came out an Administrative Order differed from an Executive Order, significantly. An Administrative Order ends with the term of the President who issued the order. Should OFA be re-elected, he would have to re-issue the order.

And, as an Administrative, rather than an Executive Order, that order can not be used to ignore current law... so that the Administrative Order is simply a piece of decorative paper. It cannot be applied to the partners of military personnel, as doing so would violate DADTDP; it cannot be utilized by the partners of federal employees because of DOMA.

When it became obvious we were played for fools, again, by the Democrat party we, once again, closed our wallets.

So Don't Ask/Don't Tell/Don't Pursue makes it into OFA's "State of the Union Address." OFA re-iterates a campaign promise, stating "this year" DADT should be repealed.

Then, OFA does absolutely nothing to advance that repeal and, in fact, is reported to be influencing key Congressional members he doesn't want DADT repealed this year. Instead, he wants to take a year to study the effects of such a repeal... said study to include sending the parents of current field military personnel a questionnaire, asking those parents if "they mind" their children serving with homosexually oriented persons.

Why doesn't he ask those parents if they "mind" their children might be slaughtered at any time, despite OFA's campaign promise to end the war(s)?

But the SOTU address served its purpose, and for a few months, our wallets opened, again.

The news just broke, in the last week or so, that OFA really doesn't want DADT repealed... once again because of a Justice Department filing supporting DADT, and using quotes and speeches from nearly 20 years ago to buttress their support, despite the fact the person they're quoting has since changed his stance and has, very publicly, supported the repeal of DADT.

Anticipating our wallets are going to slam shut, again, OFA issues this directive... and some of the google-eyed, salivating fag sycophants are going to, one more time, sing the praises of this Administration and OFA, lauding him as a pioneer for equal rights at the federal level. They're allowing themselves to be - hell, almost setting themselves up to be - screwed, politically. Bareback.

Equal rights for the homosexually oriented used to make for a great campaign issue for the Democrat party.

Remember the importance of getting ENDA approved in both houses of Congress in the lead up to the last Presidential election? Lnowing the conservative Republican president would veto the legislation, the Democrats attached ENDA to another bill - some worthless dreck of a bill.

If the Democrats, then, wanted to insure ENDA becoming law, they'd have attached it to a military spending bill; they didn't. They couldn't afford to have the previous President sign it into law (even if only because he was forced to), as they would have lost a big-money draw for their campaigns.

Two years ago, with a Democrat House and a Republican Senator, they couldn't get ENDA passed. Two years later, with a Democrat House and a Democrat President, they can't even get it out of committee.

And that should tell every gay person in this country what they can expect concerning civil rights from this government.