Queer Families Still Struggle to Access Leave

How a disproportionate number of LGBT people fall through the cracks of the Family and Medical Leave Act.

A queer couple with a kid.
Photo illustration by Slate. Photo by funky-data/Getty Images.

Taking Leave is a Better Life Lab series marking the 25th anniversary of the Family and Medical Leave Act.

Kristyn and her longtime partner Whitney both work multiple restaurant jobs in downtown Detroit. The couple moved back to their hometown in 2014 after finally deciding to foster a child, fulfilling a decadelong dream. As for many new parents, everything changed when their daughter came into their lives. But as Kristyn says, “Unfortunately, because of our jobs, not always in the ways we’d hoped.”

Like many hourly wage employees, the couple were not able to take family leave when they began fostering their daughter as an infant. And, like many LGBTQ people, they do not have any supportive biological family to rely on for help. After getting matched with their daughter four years ago, Kristyn and Whitney turned to chosen family—accepting friends and loved ones—for child care support. Both parents took four days off after getting matched through the foster system before returning to work for fear of losing their incomes altogether. Their daughter, now 3, attends HeadStart, a program that provides comprehensive early childhood education to low-income children, while they work.

Despite the broadening conversation around parental leave and employee rights, low-income LGBTQ parents and workers are still largely left out. This may be due in part to the perception that stories like Kristyn and Whitney’s are uncommon. They’re not. The Williams Institute estimates that more than 111,000 same-sex couples are raising children in the U.S., which doesn’t account for LGBTQ-identified single parents or straight transgender parents. On top of that, Pew Research Center data point to an increase in recent years in the number of blended and non-nuclear families, two models especially common among LGBTQ families living at or below the poverty line. Low-income LGBTQ parents are not only a growing population, they’re also some of the most in need of parental and family leave—and still the least served by current policies.

Of the dismal 14 percent of civilian American workers with access to paid leave, those who take it are likely to be married and high-wage earners. Parents with access to paid leave are likely to be biological parents and part of an opposite-sex marriage.

These numbers paint a grim picture for LGBTQ parents and workers. Here’s why.

Lesbian, gay, bisexual, transgender, and queer people are more likely to be low-wage earners than non-LGBTQ people. As a whole, they’re more likely to be living at or below the poverty line than non-LGBTQ people (transgender people are are twice as likely, and trans women of color four times as likely). Yet LGBTQ parents are also four times more likely to adopt and six times more likely to foster children than their straight counterparts. LGBTQ parents are more likely to be hourly employees and less likely to have supportive biological family than different-sex parents—all factors that translate to narrow access to family leave.

To compound these statistics, research shows LGBTQ people are less likely to be married and less likely to believe in marriage than their straight counterparts. For those who see marriage as counterintuitive to the fight for true equality, the benefits it offers may be completely out of reach. Family and workplace benefits associated with marital status, like legal relationship to children and access to parental leave among others, are then often out of reach to many LGBTQ people.

In her latest book, How All Politics Became Reproductive Politics, Laura Briggs, professor and chair of the women, gender, and sexuality studies department at the University of Massachusetts, Amherst, argues that marriage rights for the LGBTQ community were not the movement’s first-choice solution. But in lieu of more comprehensive family rights for all, LGBTQ activists of the ’70s and ’80s began seeking marriage rights for same-sex couples as a more attainable alternative to broader class and racial equity.

Briggs says the fight for marriage equality then became the face of the LGBTQ struggle, an idealistic goal that, if achieved, might solve all the problems caused by discrimination and marginalization. But as it turns out, broadening the legal rights for conjugal couples just barely enough to include same-sex couples does not solve the wide spectrum of challenges LGBTQ people face.

Chief among the problems it does not solve is workers’ rights, particularly for low-wage earners. Obergefell v. Hodges, the 2015 case that resulted in nationwide marriage equality, fell short of addressing workers’ needs, as evidenced by the continuing struggles of families like Kristyn and Whitney’s. In the wake of the Obergefell ruling, many LGBTQ parents who did not wish to get married or couldn’t afford to do so turned instead to the now–25-year-old Family and Medical Leave Act for protection.

But in many cases, the FMLA de facto excludes low-income LGBTQ workers. The law provides 12 weeks of unpaid leave for employees who have worked at least 1,250 hours within the 12 months prior to leave. This discounts many workers in hourly wage jobs, who are more likely to be LGBTQ people, and have high turnover rates. Those who are eligible may only take leave to care for themselves or for immediate biological or legal family members, and because LGBTQ parents are more likely to be caring for youth to whom they have no biological or legal relation, the chances of securing leave for child care purposes are even slimmer. The law does grant access for foster parents and any caretaker “who actually has day-to-day responsibility for caring for a child regardless of legal relationship.” However, it also leaves open room for employers to interpret “day-to-day responsibilities” differently, making cases like Kristyn and Whitney’s common.

Beyond the complicated web of rules and requirements to qualify for FMLA, the problem remains that leave granted under FMLA is unpaid. Low-income workers may very well not be financially able to take unpaid time off regardless of daily schedules. For LGBTQ employees facing a slew of obstacles on top of compensation, the options are few.

In an interview, Briggs says her own experience helping a colleague who is caring for an 18-year-old family member facing a medical crisis was particularly challenging. The colleague, who is queer herself and has been caring for her uncle’s queer child for 10 years, isn’t eligible for FMLA because her only relation to the kid is “cousin.” “[The] FMLA is a great example of why Obergefell didn’t get queer folks comprehensive family rights,” she says.

Broadening access to family leave through the FMLA or whatever national paid leave policy Republicans are currently courting support for will take a robust reimagining of the lived realities of workers across the spectrum—those caring for nonbiological children, those without marital benefits, and those navigating the harsh realities of hourly wage work.