Working parents need time off to take care of their kids — especially new additions to their family. But due to a number of socioeconomic and cultural factors, taking time off for caregiving tends to be difficult for gay and trans parents in the U.S.
What options do LGBTQ parents have?
No laws on the books explicitly prohibit LGBTQ people from taking parental leave. But the U.S., which consistently ranks low on global parental leave lists, doesn’t offer much in the way of federal support. Its sole provision is the Family Medical Leave Act. Through the FMLA, companies are required to give eligible employees 12 weeks of job-protected, unpaid leave for caregiving. This includes time off for the birth, fostering or adoption of a child who will be in an employees’ care.
The U.S. Department of Labor has explicitly advised employers to grant workers in loco parentis child-related FMLA leave:
"An individual stands in loco parentis to a child if he or she has day-to-day responsibilities to care for or financially support the child. The person standing in loco parentis is not required to have a biological or legal relationship with the child. Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA where all other requirements are met. The in loco parentis relationship exists when an individual intends to take on the role of a parent. Similarly, an individual may have stood in loco parentis to an employee when the employee was a child even if the individual has no legal or biological relationship to the employee."
The expansive nature of this DOL guidance can be beneficial for LGBTQ workers. Many queer people build community and find support in what sociologists and psychologists call “chosen family,” as opposed to biological family.
So, what's wrong with the FMLA?
The U.S.’s relatively slim family leave package comes with asterisks. If someone is employed in the private sector, their organization must have at least 50 employees to be covered by the FMLA. Employees who work at local, state, or federal government agencies are covered regardless of the number of employees. Ditto public and private schools.
What LGBTQ family advocates deem most problematic about FMLA leave is that it doesn’t offer financial support. And in some ways, the act definitively excludes many low-income workers. Those looking to take federal family leave are only eligible if they have been in the service of their employer for 12 months. They also must log at least 1,250 hours of service “during the 12-month period immediately preceding the leave.”
For many low-wage earners, taking 12 weeks of unpaid time away from work isn’t a viable option. Using precious sick time is a gamble and many low-income workers don’t have access to vacation time. This lack of financial support is particularly harmful for the LGBTQ community because queer people are more likely to be in poverty than cisgender, heterosexual people.
How can HR professionals help?
One 1 in 10 workplaces in the U.S. offer paid family leave. But there is a push for paid parental leave occurring in the U.S. — legislators and employers alike are facing pressure to provide paid time off for parents. For employers who are already providing or are thinking about providing paid parental leave, doing so expansively can be a move toward equity for LGBTQ employees.
Lauren Brody, journalist, speaker, and head of The Fifth Trimester movement, told HR Dive that language matters immensely when seeking to include queer parents. Brody noted that birth and childcare discourse tends to be heteronormative. In her time as a parental advocate, Brody has found that even the language of “primary caregiver” and “non-primary caregiver” isn’t helpful to LGBTQ people.
“It's a well-intended approach, but it doesn't work to think of leave like ‘a primary caregiver’ versus ‘a secondary caregiver.’ We're all primary caregivers. It's not about who produces milk,” Brody said to HR Dive. “We're all primarily responsible for taking care of the next generation. What I see happen too often is couples have access to different amounts of leave because they are ‘primary’ versus ‘secondary,’ because they are ‘mom’ versus ‘dad.’”
Mike Reynolds, a communications professional and parenting advocate @everydaygirldad on social media, spoke to HR Dive about how alienating parental leave policies can be from their perspective as a non-binary dad. “You know it's so common for people to say ‘mom and dad’ as such a normal phrase to use,” they told HR Dive. “Switching things around to terms like birthing parents definitely can make people feel more included. Those things that immediately put me at more ease when reading about policies. That’s the unproblematic thing to do.”