We climbe the slippery stairs of Infancy,
Of Childhood, Youth, middle age, and then
Decline, grow old, decrepit, bed rid lye,
Bending to infant weakness once agen,
And to our Cophines (as to our cradles) goe
That at the stair foot stand, and stint our woe.

– Thomas Bancroft [1]

 

Ageism is a relatively new socially constructed concept, first coined in 1969 by Robert Butler.[2] It can be defined as the stereotyping and discrimination against older people because of age with a distinct valuing of younger age groups. Ageism is also the structural framework within a particular society that can facilitate the devaluation of older adults as full citizens, create or perpetuate their marginalization (individually or as a group) and their exclusion. Ageism can contribute to a social apathy, implicitly accepting the negative ways that older individuals, particular groups of older adults, or older adults as a whole are treated. Ageism allows people to covertly justify certain discriminatory behaviours, and tolerate activities towards older adults that would be considered unacceptable if experienced by other adults. [3]

“Ageism” as used in social sciences refers to the set of attitudes that stereotype older adults, while “age discrimination” refers to the negative behaviours within law or society generally towards groups of persons at various ages. Ageism is more than discrimination that centres on a particular chronological age. Ageism reflects power relations between groups.[4] The behaviours are often premised on (or the consequences of) the ageist attitudes or beliefs, many of which are implicit in society and the way it is structured.

While ageism and age discrimination can occur at any age and different age groups experience different types of age discrimination (e.g. youth, later life), the focus within this paper is on ageism in later life. The paper draws on older adults’, service providers’ and advocates’ perspectives, in conjunction with the emerging literature. It considers ageism in the context of key issues such as subordination of older adults’ interests, older adults’ under-inclusion in law, as well as personal and systemic barriers that older adults face in access to justice. Within this paper, ageism will be discussed in several different but sometimes complementary forms, including (a) how aging adds another layer on other isms experienced in life such as racism, sexism, or ableism, and (b) ageism as an element that arises specifically at some point in later life and is experienced only by those who are old. Ageism will be described in the context of exclusion and loss, as well as social separation, as being treated as lesser persons, or having the spheres of people’s lives considered as less important, or less worthy of consideration.

Throughout Canada’s history, the law has both corrected and created deficits for various populations, including older adults. This paper examines ageism and its cousin, age discrimination, in the context of two important areas of law that have significant effects on people’s wellbeing in later life – housing law and health care in the community. More specifically it considers how discrimination in housing or health care is manifested in later life. The paper begins with an exploration of the concept of ageism, noting that not all distinctions are ageist, nor are all age-based criteria. Ageism is then considered in the context of several types of legal theory, ideology and structural issues. This is followed by specific examples of ageism in the context of health care and in rental housing outlining some of the areas in which ageism may be manifested in law, policy, or practice. The paper introduces some of the access to justice issues, looking at the capacity of and barriers in laws, including human rights, residential tenancy and others to adequately and fairly address the needs of older adults in this area.

The forms of ageism in areas such as housing or health are extremely diverse. Any one of them easily merits its own in-depth consideration. However this paper is only intended to introduce some of the forms, and areas of law in which there may be “special vulnerabilities”, and as such it is not intended as a comprehensive discussion. The paper does not address ageism in health care in the long term care (nursing home) settings, although this is an extremely important issue warranting its own special consideration.

The paper highlights the Ontario experience wherever possible, but also draws on examples and illustrations from health and housing in other jurisdictions. The paper considers ageism and the law issues from a “broad strokes” perspective and it is not intended to be an in-depth analysis of the specifics of residential tenancy law or aspects of health law in Ontario.

Throughout this paper, the term “older adult” and “seniors” are used interchangeably. There is a lack of consensus in society, including among older adults, about the most acceptable and preferred term for people in later life. For the past three decades in policy and practice, “seniors” has been considered as preferable to “the elderly”. Yet some now consider the term somewhat old fashioned, but still far better than newly coined marketing terms like “zoomers” that craftfully expand business markets.

A. Who is an older adult?
In any framework related to age, ageism and older adults, it is important to consider who we are talking about in the first place. The field of gerontology offers four ways of viewing aging. These are (a) chronological aging – the number of years the individual has lived; (b) biological aging – the physical changes that are taking place in the body; (c) psychological aging – changes that take place in relation to one’s adaptability, one’s intelligence, memory and learning; and (d) social aging – the nature of social interaction that the older person has with family, extended family, the work environment and the community and society more generally.

Gerontological frameworks in the 1970s and 1980s began to describe distinct ages of life: preparation (childhood and youth), achievement and fulfillment (young and middle age) and completion (retirees and those nearing death). Young and middle aged persons comprised the “Second Age” of life comprised of family and career. Although initially the “Third Age” of life was considered to include everything after that, today the term tends to refer to the span between retirement and the advent of age imposed limitations for people of post retirement years.[5] This group is often described as retirees from the work force who are in relatively good health and are socially engaged.[6] The “Fourth Age” is generally considered as represented by people of advanced age who are often experiencing an increased likelihood (but not certainty) of declining health, physical and mental impairment, and are facing end of life issues. Thus the Fourth Age is often typified as“ an era of final dependence, decrepitude, and death, essentially all the negative stereotypes of old age“.[7]

Using chronological age, people aged 60 to 65 are often referred to in the gerontological literature as “near seniors”; those aged 64 to 75 years as “young seniors” and those aged 75 and over as “old(er) seniors”. Young seniors are often considered to more closely represent the near seniors than people over the age of 75 years.

Practically speaking, Canadian society tends to use a beginning of age 65 when referring to “seniors” or “older adults”. This may represent a work force model of aging that is based on traditional retirement at age 65. At the same time the labour market field often uses ages 45 or 50 to delineate older workers who are considered as experiencing special challenges in gaining or retaining employment.[8] At a policy and program level, other age thresholds such as age 60 and age 55 have sometimes been used in special contexts such as housing to identify general ages of eligibility.

Internationally, the World Health Organization generally uses age 60 as a threshold for identifying any person as an “older adult”.[9] This reflects, in part, the different stages of economic development among countries in many parts of the world. It also captures the reality that some groups of people within a country will reach their “later years” at an earlier chronological age than others because of the more difficult conditions under which they live. In Canada, for example Aboriginal seniors, adults with developmental or severe physical disabilities, and older adults who are homeless are among some other of the groups of adults who may fall into this category of “premature aging”.

B. Aging: the Canadian success story
Many parts of the world (and Canada in particular) have witnessed a noteworthy demographic shift and a remarkable success story. Within less than three generations, the average longevity increased in Canada from 50 years in early 1910s to over 80 years for women and 78 years for men by the end of the century. [10] Only about two percent of the population in the 1920s was over the age of sixty five. Since then, as a result of lower mortality among mothers giving birth, lower infant and child mortality, along with improvements in health, housing and the workplace, a much greater percentage of people today have a reasonable expectation of living to reach milestones of 65, 80, and even 100 years.

Canada is in the mid range percentage in terms of industrial countries that are experiencing population aging. Italy and Japan, for example, have much higher percentages of older persons.[11] In 2008, there were over 4,563,000 people aged 65 and over in Canada (2,007,800 men and 2,555,000 women).[12] The percentage of older adults in Canada is expected to increase from about 14.5% in 2009 to over 25.0% by 2036.[13] The fastest growing segment among older adults is among people aged 85 and over.

The growth in the number of seniors in Ontario has been equally dramatic. In 1971 there were about 650,000 people aged 65 and over, representing 8.3% of the population. In 2008 there were 1,744, 000 seniors in Ontario, representing 13.5% of the population.[14] In several communities in Ontario, over one quarter of the population is already aged 65 and over. [15]

C. Aging: the diversity story
Older adults in Canada have become a growing and increasingly diverse population. Pre-eminent geriatrician Robert Moulias recently noted that

“in industrialized countries only a small minority (about ten percent) of people in later life are “the rich, young- like” (such as the recently retired). Disabled or dependent frail older persons are also a minority but larger in size. The large majority of the 60-100 year olds are neither young nor physically nor mentally dependent”.[16]

There is economic variation among older adults, increasing ethnic diversity, as well as differences in sexual orientation, and disability or physical or mental limitations. There are also important gender and cultural differences among seniors that affect how they age, as well as how they view and experience aging and later life.

As people age they may experience changes in physical or mental health, albeit with a wide range in the extent and speed at which that happens. The vast majority of older adults in Canada are mentally capable of making decisions about their personal lives and wellbeing. Only two percent of people aged 65 and over have dementia. However the percentage increases among age groups; one third of people aged 85 and over has dementia.[17]

1. Gender is important

Layered upon Ontario’s general aging trend is the gender distribution, which is fairly equal among people in their 60s, but changes rapidly after people reach their mid 70s. At this point, women outnumber the men, and as a result of widowhood, women are much more likely to live on their own. In 2005, for example, there were 184 women aged 80 years and over for every 100 men.[18] Older women are very likely to experience changes in their social and economic conditions in later life as a result of widowhood.

As noted, the population aged 85 and over is increasing rapidly.[19] In 2001 (the most recent figures available), almost two thirds (62.3%) of those aged 85 and over in Canada were widowed, compared to just over a quarter (28.6%) of seniors aged 65 and over.[20] At the same time, there are important differences and gaps in marital status for women and men in Canada. Over four in ten (42.2%) of women aged 65 and over were widowed, compared to only over one in ten (11.2%) of men in this age group. Over three quarters (77.2%) of women aged 85 and over are widowed, compared to one third (33.3%) for men aged 85 and over.[21] That status change may be a very important factor to consider in the context of und