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Bit by Bit: Gay Parents to Receive Family Medical Leave

By L.K. Regan

Earlier this month, President Obama expanded benefits for same-sex partners of federal employees. This week, he has extended the federal Family and Medical Leave Act to apply to gay parents. Bit by bit, it would appear, the Obama administration is chipping away at the infrastructure of anti-gay discrimination. But is this an effective method?

In 1993, President Clinton signed a law giving employees unpaid leave from their jobs in order to care for a sick family member. The Family and Medical Leave Act grants workers up to 12 weeks of unpaid leave each year to care for a loved one or themselves. But that law, which also covers adoptive parents, has until now only applied to heterosexual households. This week, President Obama extended these benefits to gay couples. Doing so does not require an act of congress, and can take effect immediately, because it is, the administration says, only a reinterpretation of the existing law, not a radical change to it. On the other hand, this means that future presidents can also reinterpret, and potentially reverse, this development.

So, if you and your boyfriend are raising his child together, and that child becomes ill, you can now take (unpaid) time off to care for the child. But, of course, you still won't be able to take time off to care for your boyfriend should he become ill. That would run up against a different federal law, the Defense of Marriage Act (DOMA), which prevents the federal government from treating as a marriage anything other than a union between a man and a woman.

This confusing and precarious situation goes to the heart of recent developments in gay rights at the federal level. In the last few months, we have seen two expansions of benefits for gay federal employees, right up to the limits imposed by DOMA; a provisional repeal of the ban on gays in the military, pending a Pentagon report in December; and an order to Medicare-receiving hospitals to grant visitation rights to same-sex partners. With the exception of the DADT repeal, these are all changes the president was able to make without congressional approval, or even consultation. There are two ways of reading this: either as a tactful end-run around DOMA, establishing gay relationships at the federal level and thus laying the groundwork for a legislative challenge—or as a series of token offerings to gay voters that fail to get at the heart of the challenges faced by gay couples.

For gay activists, weighing this balance is the current dilemma, one reflected in the comments of the Family Equality Council in response to the expansion of family and medical leave. On the one hand, they say in a press statement, "Family Equality Council appreciates and commends the small but significant steps toward LGBT equality this President has undertaken." But on the other hand, "the big-ticket items that would dramatically benefit these families—the repeal of the Defense of Marriage Act, employment nondiscrimination, and LGBT adoption in particular—have yet to be addressed." But in the current legislative environment, would the "big ticket items"—specifically, a repeal of DOMA—even be feasible? What do you think?