Last week, the Trump administration released its budget request to Congress and included a proposal for six weeks of paid family leave to new mothers and fathers, including adoptive parents. This paid leave plan is not as retrograde as the original plan, which, as we previously wrote, would have promoted sex stereotypes by limiting its benefits to married birth mothers. But the correction of that unacceptable error does not mean the replacement plan is satisfactory.
The devil remains in the details.
The most glaring of the many unknowns and flaws in the revised plan is the provision of paid leave to new parents only, with no provision for paid leave to take care of one’s own serious health condition or to care for a sick family member. This may seem like a case of half a loaf being better than none at all — working families are, after all, desperate for additional support. But the revised Trump plan ignores the lessons of history and would, in actuality, risk ushering in a whole new era of discrimination against working women.
The simple reality is that if employers are required to provide paid time off only to new parents, employers will consider female employees a more expensive liability than male and be less likely to hire or promote women. This is true even if that parental leave, on its face, is available to fathers as well as mothers, because employers will assume — based on stereotypes and experience — that women will be more likely to take the leave. Indeed, it was precisely to avoid employers’ reliance on these gender stereotypes that the , a major milestone for workers and women's workplace equality enacted in 1993, includes coverage on a gender-neutral basis for self-care as well as care of a newborn or other family members.
Who better to explain this than Justice Ruth Bader Ginsburg. In — a Supreme Court case analyzing the self-care provision of the FMLA, which provides 12 weeks of unpaid leave to eligible employees — Ginsburg explained why it was so important that Congress drafted the law in gender-neutral terms and why the self-care provision was essential to avoid sex discrimination in the workplace:
“A law providing special protection to women . . . in addition to being inequitable, runs the risk of causing discriminatory treatment. For example, legislation addressing the needs of pregnant women only might encourage discriminatory hiring practices against women of child bearing age. Legislation addressing the needs of all workers equally does not have this effect. By addressing the serious leave needs of all employees, the FMLA avoids providing employers the temptation to discriminate [against women].”
Having recognized that new mothers need leave for their own serious medical condition as well as to care for their newborn baby, Congress thus took steps to ensure that men with equally serious medical conditions would also be entitled to leave. According to Justice Ginsberg, this move was intended “to blunt the force of stereotypes of women as primary caregivers by increasing the odds that men and women will invoke the . . . leave provisions in near-equal numbers.”
Provision of leave for self-care and care of other family members was thus necessary not only to meet the real-life demands that face American workers. It was also necessary to “ward off the unconstitutional discrimination [Congress] believed would attend a pregnancy-only leave requirement,” and prevent the likely harmful consequences to sex equality in the workplace of providing parental leave only.
Current have borne this out: Roughly half the people taking leave under the FMLA for self-care are men and half are women. For this reason, “[P]arental and medical leave . . . are inseparable,” Ginsburg wrote in Coleman. By failing to provide paid leave for self-care and care of other family members, Trump’s proposed parental leave plan runs precisely the risk of encouraging sex discrimination that the FMLA avoided by its broader coverage.
The devil remains in the details.
Trump’s proposal also ignores an existing alternative that would actually meet the needs of working families. The , a bill pending in Congress, would provide women, men, and families 12 weeks of partially paid leave for (1) the birth or adoption of a child; (2) the serious health condition of a child, parent, spouse, or domestic partner; (3) one’s own serious health condition, including pregnancy and childbirth recovery; and (4) caregiving for members of the military. The broad coverage of the FAMILY Act recognizes that people get sick and may need time off to undergo surgery or chemotherapy or to care for a family member receiving such treatment, in addition to needing time off for pregnancy, childbirth, and to bond with a new baby.
Ultimately, like so many of his proposals, Trump’s parental leave plan is a double-edged sword — and women in the workplace would be the ones most at risk of getting cut. This is not a risk we should be willing to accept when it comes to America’s working families.
The ACLU is hard at work on the fight for comprehensive paid family leave. If you would like to join us in our federal, state and local advocacy, call your members of Congress and ask them to co-sponsor the FAMILY Act, , and also let us know if your employer provides unequal leave for different types of parents or family members. Working families deserve better, and together we can make comprehensive paid family leave a reality.
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Press ReleaseOct 2024
LGBTQ Rights
+2 Issues
At Supreme Court, Tennessee Seeks to Expand Reach of Dobbs to Ban Health Care for Transgender YouthAt Supreme Court, Tennessee Seeks to Expand Reach of Dobbs to Ban Health Care for Transgender Youth
WASHINGTON – In their brief defending the state’s ban on gender-affirming medical care for transgender youth, Tennessee Attorney General Jonathan Skrmetti has asked the Supreme Court to expand its ruling overturning Roe v. Wade and allow the state to target transgender people’s autonomy over their own bodies, too. In U.S. v. Skrmetti, three Tennessee transgender youth and their families are challenging a state law that prohibits medical providers from prescribing medical treatments to transgender youth, such as puberty blockers and hormone replacement therapies, that are allowed for minors who are not transgender. Represented by the American Civil Liberties Union, the ACLU of Tennessee, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP, the families argue that the ban violates their Equal Protection rights under the 14th Amendment. In the brief filed today, Tennessee relies on the Supreme Court’s 2022 ruling in Dobbs v. Jackson Whole Women’s Health in an attempt to justify its ban on gender-affirming health care for transgender people. The brief cites to Dobbs at least 10 times in sweeping arguments to justify government sex discrimination. “We’ve seen just how far extreme politicians will push to deny us our reproductive freedom, from banning abortion to threatening IVF to even threatening to put doctors in jail for providing emergency care, with deadly consequences for women’s lives,” said Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project. “The same politicians who are trying to control women have now set their sights on transgender people and their families and are trying to control their bodies and lives. Allowing politicians to continue down this road could hold severe implications for the freedom of all people to decide what is right for their own body.” Tennessee claims that their ban on gender-affirming care does not discriminate on the basis of sex even though it bans minors of one sex from accessing health care it allows to members of another sex. A transgender girl is barred from taking doctor-prescribed estrogen because Tennessee considers it “inconsistent” with her birth-assigned sex of male but a cisgender girl with a birth-assigned sex of female is permitted to take estrogen for any purpose including to affirm her female gender identity. “Since this Project’s founding by Justice Ruth Bader Ginsburg, we have adamantly challenged efforts to limit who we can be based on our gender or ability to bear children,” said Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project. “Tennessee’s attempt to limit who young people can become based on their sex shares a through-line with our nation’s history of subjugating women in the name of biology. The fight for each of us to live fully and authentically must include trans people. There is no ‘transgender’ exception to the U.S. Constitution.” In April 2023, the American Civil Liberties Union, the ACLU of Tennessee, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP sued the state of Tennessee to block S.B. 1, which prohibits medical providers from prescribing medical treatments to transgender youth, such as puberty blockers and hormone replacement therapies, that it exempts for minors who are not transgender. Following a decision by the Sixth Circuit Court of Appeals, S.B. 1 took effect in July 2023. Since 2021, 24 states have banned hormone therapies for transgender youth. “Laws like Tennessee’s are not benign regulations of medical care; they are discriminatory efforts to exclude transgender people from the protections of the Constitution,” said Chase Strangio, co-director of the ACLU’s LGBTQ & HIV Project. “These bans represent a dangerous and discriminatory affront to the well-being of transgender youth across the country and their constitutional right to equal protection under the law.” -
Press ReleaseSep 2024
Women's Rights
Civil Rights Groups Tell Federal Appeals Court that Protections for Pregnant Workers Cover Abortion CareCivil Rights Groups Tell Federal Appeals Court that Protections for Pregnant Workers Cover Abortion Care
WASHINGTON, D.C. - On Friday, a broad coalition of labor, workers’ rights, and gender justice organizations — led by the American Civil Liberties Union (ACLU), the ACLU of Arkansas, and the National Women’s Law Center (NWLC) — filed an amicus brief in the U.S. Court of Appeals for the Eighth Circuit in support of the Equal Employment Opportunity Commission’s (EEOC) regulations implementing the landmark Pregnant Workers Fairness Act (PWFA), including the regulations’ explicit protection for workers who have abortions. The PWFA, which took effect last year, was the culmination of a decade-long campaign to secure access to reasonable accommodations for workers with temporary limitations caused by “pregnancy, childbirth, and related medical conditions.” The EEOC’s regulations provide comprehensive guidance to workers, employers, and the courts about the statute’s range of protections, including job-protected time off for medical treatment and recovery. The amicus brief filed in the U.S. Court of Appeals for the Eighth Circuit supports the EEOC in a challenge by 17 red states that are trying to block the PWFA regulations’ coverage of accommodations for abortion-related care. In June, the U.S. District Court for the Eastern District of Arkansas dismissed the states’ challenge, and the states appealed to the Eighth Circuit. Their appeal includes a request that the Eighth Circuit issue a preliminary injunction of the regulations’ abortion provisions. The ACLU-NWLC brief details the federal law’s longstanding ban on discrimination against workers who obtain abortions – protection the PWFA intended to continue. The brief also documents the accounts of workers whose health and jobs were put at risk when their employers denied them accommodations, including time off, for abortion care. Such accounts illustrate the urgent need for clarity with respect to the PWFA’s coverage of abortion-related accommodations, and the devastating medical and financial consequences if such accommodations are denied. “Abortion has long been recognized as part of the full spectrum of workers’ pregnancy-related needs that are protected by the law, ” said Gillian Thomas, senior staff attorney at the ACLU’s Women's Rights Project. “The states’ challenge has created uncertainty, and seeks to deprive workers of essential, job-protected time off for abortion care, posing significant health risks and leading to forced pregnancies. The EEOC regulations are vital to ensure pregnant workers don't have to choose between their health and their jobs.” “Extremist politicians are demonstrating repeatedly their willingness to risk women’s health to advance their anti-abortion agenda,” said Gaylynn Burroughs, vice president for Education and Workplace Justice at the National Women’s Law Center (NWLC). “Let’s be clear: abortion care is pregnancy-related care, and stripping essential protections for abortion from the PWFA would endanger the health and economic security of pregnant workers.” “The Pregnant Workers Fairness Act and its regulations provide a lifeline for workers who need accommodations during the most critical periods of their lives. Attempting to strip away these protections, particularly for abortion-related needs, is an affront to the rights and well-being of pregnant workers,” said John Williams, legal director of the ACLU of Arkansas. “All people in all aspects of pregnancy, including abortion, should be treated with the care and consideration they deserve. We stand firmly with the EEOC in defending these essential protections.” A copy of the brief can be found here. -
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Press ReleaseJul 2024
Women's Rights
LGBTQ Rights
ACLU Condemns House Measure Against Department of Education Title IX RuleACLU Condemns House Measure Against Department of Education Title IX Rule
WASHINGTON – Today, the U.S. House of Representatives voted to pass H.J. Res. 165, a Congressional Review Act resolution disapproving of the U.S. Department of Education’s final Title IX rule providing guidance to schools on protecting students from sexual harassment, pregnancy discrimination, anti-LGBTQ discrimination, and other forms of sex discrimination. Mike Zamore, ACLU National Policy and Government Affairs Director, had the following response: “Today’s vote to completely repeal the Title IX rule takes a sledgehammer to the government’s ability to ensure that all students have the opportunity to learn free from sex discrimination and harassment. Stripping critical civil rights protections from LGBTQ students and students who are pregnant and parenting - as this resolution would do - is something that all members of Congress should strongly oppose. This is also not how Congress should act to protect the rights of students who face disciplinary action under Title IX because passing this resolution would prevent future rulemaking to ensure fair processes in school disciplinary proceedings.” The ACLU’s letter urging a “No” vote on H.J. Res. 165 can be found here: /documents/aclu-urges-no-vote-on-h-j-res-165 The ACLU’s statement on the final Title IX rule can be found here: /press-releases/155090