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Despite 20 Years of Progress, Family and Medical Leave Act Fails to Protect Gay and Transgender Families

Family and Medical Leave Act

SOURCE: AP/ Frank Franklin II

Jonathan Truong, left, his partner Ed Cowen, right, and their son Franklin Cowen Truong, 2, pose for a picture at their home in Brooklyn, New York. The Family and Medical Leave Act falls short of protecting gay and transgender workers and their families.

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In today’s economy workers should not have to choose between keeping their jobs and caring for a sick partner, spouse, or child. That’s why 20 years ago today, Congress approved and then-President Bill Clinton signed into law the Family and Medical Leave Act of 1993—landmark legislation that allows some workers to take up to 12 weeks of unpaid job-protected leave to recover from a serious illness, care for a seriously ill family member, or stay at home following the birth or adoption of a child. Since its passage, the Family and Medical Leave Act has provided millions of workers the basic protections and safeguards they need to balance their responsibilities as workers with their responsibilities as mothers, fathers, partners, and spouses.

While the act provides a critical safety net for our nation’s workers, the law currently does not afford gay and transgender workers the protections and safeguards they need to care for themselves and their families.*

Specifically, the Family and Medical Leave Act does not require employers to grant leave to a worker with an ill same-sex partner or spouse, even though it requires employers to do so for workers with different-sex spouses. Sadly, far too many workers with same-sex partners or spouses risk losing income, or in the worst case, their job, in order to take care of a loved one due to the lack of sufficient protections under the Family and Medical Leave Act. Transgender workers also face a number of obstacles in accessing unpaid job-protected leave for what is otherwise considered medically necessary care.

No one should have to make the unconscionable choice of either taking care of a loved one or keeping one’s job. States, cities, businesses, and the Obama administration have instituted policies that help fill the gap in the law’s coverage for gay and transgender people. But for the Family and Medical Leave Act to fully and adequately serve all workers—gay or straight, transgender or not—Congress and the courts must act.

Lack of protections means gay workers often must choose between keeping a job and taking care of a loved one

The Family and Medical Leave Act currently allows individuals up to 12 weeks of unpaid leave from work to care for a seriously ill spouse, parent, or child. But the act’s definition of “spouse” only applies to different-sex couples and does not apply to same-sex couples. This is due to the discriminatory Defense of Marriage Act, which prohibits the federal government from recognizing the valid and legal marriages of same-sex couples. What this means is that gay workers—unlike straight workers—do not have a legal right to take time off from work to care for a sick partner or spouse under current federal law.

The lack of family and medical leave benefits puts many gay workers with a sick partner or spouse in a problematic and vulnerable situation. Certainly, workers can choose to take time off work to care for a same-sex partner or spouse even if they do not have the vacation or sick time from their employer. But doing so puts many workers at substantial risk of losing their job, since taking a prolonged period of time off work may exacerbate existing vulnerabilities that these workers face in the workplace. Taking time off, for example, may give antigay employers a reason to let an employee go without appearing outwardly discriminatory. With 42 percent of gay workers reporting discrimination in the workplace, antigay bias is a real concern for many gay workers. For this reason, workers may instead elect to continue working while the medical needs of their sick partner or spouse go unattended.

But there are some situations so dire that a worker simply cannot ignore the health and wellness of a loved one. In such circumstances a worker is compelled to take time off, forgo income, and risk punitive and often discriminatory action from their employer. Because the Family and Medical Leave Act does not apply to workers with a same-sex partner or spouse, gay workers have no legal recourse if their employer demotes them, reduces their pay, or fires them when they take time off to care for a partner or spouse.

The employment insecurities that result from the lack of protected family and medical leave—such as being fired—inflict significant economic pain on families headed by same-sex couples. Research shows that families headed by same-sex couples have lower incomes, are more likely to find themselves in poverty, and are less likely to have health insurance than different-sex couples. These economic insecurities are especially acute for families headed by same-sex couples where one or both individuals are a person of color. The lack of federally guaranteed family and medical leave and other workplace protections—such as nondiscrimination laws—are largely to blame for these economic disparities. And in reverse, these economic disparities are a reason why gay workers cannot afford to take time off work to care for a loved one in the first place.

The Family and Medical Leave Act does not recognize medically necessary conditions that affect transgender workers

The Family and Medical Leave Act requires employers to grant leave when employees or their family members experience a “serious medical condition.” But transgender employees often experience unique obstacles when they have such serious medical conditions.

Specifically, the act’s ambiguous definition of “serious medical condition” does not include all treatments and conditions associated with gender identity disorder. While the terminology of this “disorder” is increasingly outdated, it describes the significant mental, emotional, and physical stress that transgender people experience when their outward sex conflicts with their inward sense of gender. Sometimes the diagnosis is so severe that it requires transgender workers to take time off work to seek medically and psychologically necessary care. Some employers, however, have discriminated against transgender employees by denying them medical leave. These employers erroneously argue that addressing the health care issues associated with gender transition are not medically necessary, even though leading health organizations such as the American Medical Association classify transition-related procedures as medically necessary.

Where the law has failed to sufficiently protect gay and transgender workers, businesses have stepped up to the plate by offering Family and Medical Leave Act-equivalent leave

While federal law does not require employers to grant leave to employees with same-sex spouses, a number of businesses have instituted commonsense workplace policies that extend Family and Medical Leave Act-like benefits to their gay and transgender workers. The Human Rights Campaign found that 82 percent of Fortune 100 companies incorporate same-sex partners and spouses within their definition of “family,” and in doing so, effectively give gay workers the family and medical leave benefits they lack under federal law. A number of companies also include gender identity disorder and procedures related to gender transition as qualifying medical conditions under their existing leave policies.

The fact that the vast majority of Fortune 100 businesses offer leave under the Family and Medical Leave Act for their gay and transgender employees reveals the fact that treating gay and transgender employees equally is not only the right thing to do—it is also better for the bottom line. A significant body of research reveals that equal benefits for gay and transgender employees helps companies recruit the best and the brightest, increases retention rates and reduces turnover-related costs, boosts productivity, and appeals to a broad and diverse customer base. More generally, it is also worth noting that employers themselves generally believe laws like the Family and Medical Leave Act and similar workplace policies help them remain competitive. Recently, 9 out of 10 employers reported that the Family and Medical Leave Act has had either a positive or neutral effect on employee morale—a key driver in boosting workplace productivity and output. 

Gay and transgender workers enjoy some Family and Medical Leave Act benefits, but Congress and the courts must act to fully level the playing field

While the federal Family and Medical Leave Act does not extend leave benefits to same-sex partners, many states have passed their own legislation to extend the act that ensures all workers’ families are treated equally, regardless of sexual orientation or gender identity. Currently, 13 states, the District of Columbia, and a handful of cities have passed laws that allow workers to take time off to care for a sick same-sex partner or spouse. In these localities, these laws offer gay workers a critical safety net of support that ensures they do not have to choose between their loved ones and their job security.

The Obama administration has also done its part to extend certain Family and Medical Leave Act benefits to gay workers. In June 2009 the U.S. Department of Labor clarified that under existing law the definition of  “son or daughter” may apply to any employee who has assumed the responsibility of parenting and caring for a child. This small but significant policy change expands leave under the Family and Medical Leave Act in a way that allows a gay parent to take time off to care for a sick child, including the sick child of a same-sex partner or spouse. It similarly allows them to take time off to care for their own child, even when they do not have a legal or biological relationship with that child—due to discriminatory adoption state laws, many gay parents are unable to secure a legal relationship with their adoptive child. Unfortunately, no similar administrative policy can be enacted that would allow workers to take federally protected leave to care for a sick partner or spouse.

To allow gay employees to take federally protected leave to care for a sick partner or child, Congress or the courts must repeal the Defense of Marriage Act. Repealing this law would ensure that all spouses, same-sex or different-sex, are treated equally under the law, including under the Family and Medical Leave Act. Alternatively, Congress could pass the Family and Medical Leave Inclusion Act, which would amend the law to permit leave to care for additional family members with a serious health condition, including same-sex spouses and domestic partners.

Beyond gay and transgender issues, our policymakers should institute employment laws that build upon the basic floor of support that the Family and Medical Leave Act offers to workers and their families. This includes enacting mandatory paid family leave—the Family and Medical Leave Act only requires unpaid leave—a benefit that all other industrialized countries require, which would benefit both employees and employers.

On this 20th anniversary of the Family and Medical Leave Act, we should celebrate all that the law has done for our nation’s workers and their families. But we should also recognize that when it comes to protecting gay and transgender workers and their families, this law falls dismally short.

Crosby Burns is a Research Associate and Kellan Baker is a Policy Analyst for the LGBT Research and Communications Project at the Center for American Progress.

* In this column the term “gay” is used as an umbrella term to describe people that identify as lesbian, gay, or bisexual.

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