When I got successive tweets last night about the president’s memo to the Secretary of Health & Human Services instructing her to secure hospital visitation rights for LGBTs, I was floored and about to break out the champagne when I decided to look more closely at the missive. This is no doubt a great gesture on the part of Mr. Obama, but is it enough?
First, the letter mandates that only “hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors.” What about those that do not? What about medical institutions run by religious groups? Will they be exempt even if they receive Medicare or Medicaid funding?
Second, it says 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.” But what if the patient arrives unconscious and is unable to tell hospital employees who she considers her spouse and family? What if a gay couple has not set up powers of attorney, living wills and health care proxies?
The burden of proof is still on gay couples. A man who is hospitalized can easily say that a female visitor is his wife and chances are no questions will be raised. But if he were to say that another man were his husband or partner, he would have to prove his claim especially in parts of the country that are not welcoming of LGBT people. We still need to carry our marriage and domestic partnership certificates in our wallets.
Finally, the memo ends by making it clear that it “is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.” It does not create any enforceable right. As Richard Socarides, former advisor of President Bill Clinton, acknowledges, the directive does not grant any new LGBT rights.
Nonetheless, Socarides points out that President Obama’s latest action on behalf of the LGBT community does “draw attention to the very real and tragic situations many gays and lesbians face when a partner is hospitalized.” Although all this would be moot if the Defense of Marriage Act were repealed and same-sex marriages federally recognized, this is another step toward full equality and civil rights for LGBT Americans.
Although the President can put more effort in passing civil rights legislations such as the Employment Non-Discrimination Act and in repealing “Don’t Ask, Don’t Tell,” there is no denying that we are better off under his administration. I doubt that Republican Sen. John McCain would have taken this step — or any at all to help us — had he won the presidency.
You can follow Erwin de Leon on Twitter at @ErwindeLeon.