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Illinois woman allegedly assaulted for being gay can sue retirement home for failing to stop abuse

(Lambda Legal/YouTube)

After her partner of 30 years died, Marsha Wetzel didn’t have many choices besides moving to a retirement home.

She and Judith Kahn fell in love in 1982 and held a commitment ceremony the following year but never legally married. Illinois, where they lived, didn’t legalize same-sex marriage until November 2013 — the same month that Kahn died of advanced colon cancer.

Not long after, Wetzel, who suffers from severe arthritis, lost her home. According to a 2016 video produced by Lambda Legal, an LGBT rights organization representing her in court, Kahn’s family took possession of the house where the couple had lived. When she didn’t leave, a sheriff’s deputy came to evict her. Around that same time, she became estranged from the son who they had adopted and raised together.

A social worker found her a spot at Glen St. Andrew Living Community in Niles, Ill., a retirement home and assisted living facility.

“When I first got here, I started meeting the people. It was great making all these new friends, and I thought, hey, this isn’t bad,” Wetzel, now 70, said in the Lambda Legal video. “And then, it changed.”

Once the other residents learned she was a lesbian, Wetzel was spat on, called homophobic slurs and derogatory nicknames like “fruit loop,” and even physically attacked on several occasions, she claims in a lawsuit under the federal Fair Housing Act as well as the Illinois Human Rights Act. She also alleges that she complained to the retirement home’s administration but that they didn’t make any meaningful attempt to put a stop to the abuse and retaliated against her instead.

On Monday, the U.S. Court of Appeals for the Seventh Circuit overturned a lower court’s decision to dismiss her lawsuit against the retirement home. Hailed as a victory by housing rights and LGBT advocates, the three-judge panel’s decision said that landlords can be held liable for discrimination if they fail to respond to harassment faced by tenants who belong to a protected class.

“Marsha Wetzel’s tenacity will help thousands of victims of housing discrimination,” the National Fair Housing Alliance, which filed an amicus brief along with six other housing groups, wrote Monday on Twitter.

Lambda Legal described the ruling as “a tremendous victory for Marsha.”

[Federal fair housing law protects LGBT couples, court rules for first time]

“She, just like all people living in rental housing, whether LGBT or not, should be assured that they will at least be safe from discriminatory harassment in their own homes,” Lambda Legal senior counsel Karen Loewy said in a statement. “What happened to Marsha was illegal and unconscionable, and the Court has now put all landlords on notice that they have an obligation to take action to stop known harassment.”

The appeals court ruling did not assess the validity of the claims that Wetzel makes in her lawsuit. The decision allows the case to proceed in the district court. In a statement, representatives for Glen St. Andrew said that they strongly deny the factual allegations in the complaint and will present their side of the story in court.

“Glen St. Andrew Living Community is committed to providing fair, safe and non-discriminatory housing, regardless of race, ethnicity, gender, sex or sexual orientation,” the statement also said.

Wetzel, a petite woman with cropped hair and wire-rimmed glasses, lays out a detailed account of the bullying that she allegedly encountered at Glen St. Andrew in the complaint.

The problems started after another resident discovered she had a son and asked where her husband was, she says in the Lambda Legal video. When she told the woman that she had never had one, the woman assumed that she was a single mother.

“I said, ‘No, I had a partner, my partner was a woman, and we raised a son,’ ” she recalled. “It got out, and I thought, oh, no, here we go again. Gay hate.”

One resident, a former police officer, told her that if she had sex with a man, she would never want a woman again, she alleges. Wetzel complained to staff at the nursing home, and the harassment seemed to decrease. Then, months later, the man addressed her with a homophobic slur and rammed her scooter with his walker, “hard enough to tip her chair and knock her off the ramp,” the lawsuit alleges.

Wetzel claims that she reported the incident but was told not to worry about it. When the harassment increased and she continued to complain, she was told by nursing home staff that she was a troublemaker who couldn’t be trusted, she alleges.

The man later allegedly threatened, in crude terms, to rip her breasts off, commented that it was great that gay people had been killed in the Pulse nightclub shooting in Orlando, and told her, “Judy died to get away from you.”

Another woman allegedly told her she looked like a man, and that gay people would burn in hell. The woman later rammed her wheelchair into the dining hall table where Wetzel was sitting, knocking the table on top of her, the lawsuit alleges. Kitchen staff had to help remove it.

On Jan. 5, 2016, an unknown assailant attacked Wetzel from behind and hit her on the head, calling her a “homo” and leaving her with a black eye, the lawsuit claims. She went back to her room and cried but did not report the injury to staff that day because she did not think they would believe her.

The lawsuit also accuses administrators at Glen St. Andrew of retaliating against Wetzel. She claims that she was temporarily banned from spending time in the lobby unless she was getting coffee, given a less desirable seating assignment in the dining hall, falsely accused of smoking in her room and taunted because she didn’t have visitors on Christmas. Staff told her that she was lying and stopped cleaning her room at one point, she alleges.

Because she felt unsafe and unwelcome at the facility, Wetzel began avoiding the dining room, changing her laundry schedule and avoiding certain floors of the building where she might encounter hostile residents. She lost a significant amount of weight, the lawsuit says.

“I look out the window, I’ve got a cemetery out there,” she said in the video produced by Lambda Legal. “That’s when I’ll stop being made fun of because I’m gay.”

After 15 months of harassment, Wetzel contacted Lambda Legal’s help line. The organization filed a lawsuit on her behalf, alleging that Glen St. Andrew, a private for-profit facility, had violated the Fair Housing Act twice over, first by failing to provide her with nondiscriminatory housing and then by retaliating against her after she complained about the abuse.

In January 2017, the U.S. District Court for the Northern District of Illinois, Eastern Division sided with the retirement home, whose lawyers had argued that the Fair Housing Act imposes liability only on landlords that intentionally discriminate against a tenant. Wetzel’s lawsuit had not accused the facility’s administrators of acting with discriminatory animus.

In a decision published Monday, the appeals court disagreed with that interpretation of the Fair Housing Act.

The FHA “creates liability against a landlord that has actual notice of tenant-on-tenant harassment based on a protected status, yet chooses not to take any reasonable steps within its control to stop that harassment,” Chief Judge Diane Wood wrote in the decision, joined by judges Michael Kanne and David Hamilton.

Attorneys for Glen St. Andrew had also argued that landlords cannot be held liable for instances of tenant-on-tenant harassment. The appeals court contended that “the duty not to discriminate in housing conditions encompasses the duty not to permit known harassment on protected grounds,” such as communal areas of the building and Wetzel’s own apartment.

The panel also criticized the retirement home’s lawyers for playing down the verbal harassment and physical violence that Wetzel allegedly faced.

“The defendants dismiss this litany of abuse as no more than ordinary ‘squabbles’ and ‘bickering’ between ‘irascible,’ ‘crotchety senior resident[s],’ ” Wood wrote, quoting from their brief. “A jury would be entitled to see the story otherwise.”

“We confess to having trouble seeing the act of throwing an elderly person out of a motorized scooter as one of the ordinary problems of life in a senior facility,” she added in a parenthetical.

The ruling comes at a time when finding LGBT-friendly senior housing has become an increasingly urgent task for members of the “Stonewall generation,” who fought for equal rights and protections in the wake of the 1969 Stonewall uprising and now face the possibility of being the first openly gay people in their nursing homes.

“Many worry that their peers, raised in an era when homosexuality was seen as criminal or deviant behavior, will not be welcoming or that they will face hostility from staff,” The Washington Post’s Tara Bahrampour reported in July.

According to SAGE, an advocacy group for LGBT elders, roughly a third of LGBT older adults fear that they’ll have to “re-closet” themselves to find stable housing in a senior living facility.

“The Court today struck a blow for me and for all senior citizens — gay or straight — who deserve to feel safe and to be treated with respect,” Wetzel said Monday in a statement shared by Lambda Legal. “That’s not too much to ask. No one should have to endure what I endured because of who I am.”

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