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By now you have heard the good news regarding the Obama administration directing the Secretary of HHS to issue rules mandating that hospitals extend visitation rights to the partners of LGBT people. I have a few reactions:
1. Whether or not these rules could be circumvented. Key graph from the WaPo piece on this today:
Hospitals often bar visitors who are not related to an incapacitated patient by blood or marriage, and gay rights activists say many do not respect same-sex couples' efforts to designate a partner to make medical decisions for them if they are seriously ill or injured.
One of the key arguments in New Jersey for why civil unions did not work and the legislature should pass marriage equality is exactly this. New Jersey set up a Civil Union Review Commission that documented cases in which hospitals ignored that partners were in a legal civil union relationship- even with documentation- and had power for visitation and decision-making rights. What I wonder is what is any different about this. Sometimes regardless of "the rules", hospital personnel simply ignore them. Perhaps that the penalty for a hospital is a decision to refuse such rights could result in a penalty in the form of Medicare/Medicaid funding. This is one question I'm putting forth as this gets fleshed out.
2. Making sure LGBT advocates don't fall into a "damned if you do, damned if you don't" trap. I saw this last summer when the Administration extended benefits for same-sex partners of federal employees. While the federal employees I know who are in same-sex relationships celebrated this decision, it was lambasted throughout the community as "half-baked", "table scraps", etc. because the benefits did not even include certain health benefits. The reason for that is because DOMA prevents a number of rights from being extended- something Tammy Baldwin's Domestic Partnership Benefits and Obligations Act aims to correct. So while the Administration did what it could do to the fullest extent of the law (or at least, what its legal team's interpretation of the law), they were lambasted anyway. The concern that arose out of that was backing a well-intentioned ally into a corner. If the Administration had done nothing at all, they would have been trashed, and when they did what they could do, they were trashed anyway.
In this vein, I think it's important to remember to thank allies when they do the right thing, and not get sucked into how best to criticize what's wrong about this move. The cynical way to react to last summer's benefits decision was that there was this big boycott of a DNC fundraising dinner ongoing at the time, and the decision was announced in the middle of it, so it must be to placate LGBT advocates. The cynical way to approach this is that ENDA and DADT are at risk, so this is "throwing us a bone". As Joe Sudbay writes, the timing may simply be a result of LGBT anti-discrimination provisions being stripped out of the health insurance reform bill. The point is to be careful about reaction.
3. Along the lines of being careful about reactions, the last item I think is important is using the headlines to message to the Administration, Congress and the general public about what other inequalities remain for LGBT families. A lot of straight friends e-mailed me last night and this morning expressing surprise because they didn't know LGBT couples couldn't have such hospital rights. I used that opportunity to e-mail them back, saying "Yep. You know what else is true? It's true that in 29 states, you can face employment discrimination in hiring, firing, pay and promotion just because you're LGBT. That's why it's important for Congress to pass ENDA." and asking them to take a simple action. In many cases, I got another round of "are you serious?!" e-mails back. No joke.
This is also an opportunity to do the same when you're talking about this to friends, and for LGBT advocates everywhere to do so. An opportunity in disguise.
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