Gay in America: Left Out of Family Leave

Marissa R. had an emergency Cesarean section and gave birth to premature twins. Her wound got infected and burst open, resulting in emergency surgery and a long, painful recovery. Her same-sex partner wanted to take time off to support Marissa and care for their twin newborns and toddler. But her employer refused. The twins were born on a weekend, and Marissa's partner was back to work on Monday morning.

If the love of your life had major surgery or a serious illness, you would want to be by their side. You'd want to take some time off work without losing your job, and give them the care they need. But if you're gay in America, you have no such right under federal law.

President Obama's statement supporting gay marriage is putting the spotlight on how non-recognition of gay marriage harms families and society. For people dealing with day-to-day relationships and health problems, there are some policy changes that can and should be made now to promote equality for gay and lesbian couples.

The U.S. Family and Medical Leave Act (FMLA) gives many workers the right to take unpaid, job-protected leave from work to care for a spouse of the opposite sex, a child, or a parent when they have a serious health condition, if the worker meets eligibility criteria. Millions of legally married, heterosexual workers have used this law to care for their ill spouses.

But gay couples, even if married, are shut out of these protections when it comes to caring for their partners. Federal law does not recognize same-sex relationships, even for something as vital as supporting a seriously ill partner. In Marissa's case, it was not clear at the time that her partner could take family leave to care for her children. The Labor Department recently clarified that parents in gay families can take this family leave to care for their children, but not for each other.

"It was incredibly stressful," Marissa told me. "We had three kids, two were preemies [premature]. I had to feed them every two to two and a half hours around the clock. I had to do it all solo. The three weeks in the NICU [Neonatal Intensive Care Unit] were stressful. ... Seeing our babies with the monitoring wires attached was stressful, and I really couldn't turn to my wife for support because she had to work. ... It was emotionally hard not being together to go through this process, not having someone to lean on. If she wasn't at work, it would have given us some time to be together and to go to the NICU and be with the babies. Even a week off for her to be home to help me recover and a week to get us on our feet would have been awesome."

Paige V. told me a similar story. Paige had an exhausting labor and then Cesarean section. Her same-sex partner was not able to take FMLA leave to care for her. "For the physical recovery, it was hard not to have my partner home for more time," Paige said. "She was out a week, but I was still in the hospital for a few days. Then I was home alone with the baby crying, and I couldn't walk. It was awful. ... It was the most difficult period of my life."

A handful of states do allow domestic partners to take family leave under state family and medical leave laws, and members of Congress have proposed bills that would expand the federal law to cover domestic partners.

Expanding the law in this way would go a long way toward taking care of one problem: the irrational exclusion of gay couples from family leave rights. But it wouldn't solve the many other problems and inequalities that same-sex couples face because federal law fails to recognize gay marriage.

President Obama's endorsement of gay marriage is a step in the right direction. But until Congress does away with exclusionary and discriminatory laws, same-sex partners will continue to confront the suffering that Marissa and Paige endured.
Janet Walsh is deputy women's rights director at Human Rights Watch and author of "Failing its Families: Lack of Paid Leave and Work-Family Supports in the US."