The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia

Abstract

The United States and Australia are unusual in their approach to providing paid time off to new parents. Virtually every other country in the world provides maternity leaves that are far longer than paternity leaves, even if they also provide supplemental parental leave available to either parent. Recently-enacted laws in the United States and Australia, by contrast, eschew sex-specific classifications entirely. But, while both adopt gender-neutral approaches, they are structured quite differently. American laws provide each parent equal and non-transferable benefits; Australian law provides an extended period of benefits to a “primary” caregiver, and a much shorter period of benefits to a “secondary” caregiver.

This Article shows how these distinct approaches to gender-neutral leave relate to the countries’ pre-existing laws addressing unpaid leave rights and to doctrinal and theoretical debates regarding what equality means in the context of pregnancy and childbirth. American law generally requires formal equality between men and women, while Australian law permits special accommodations for mothers.

Early data suggests the approach used in America is effective at encouraging men to claim benefits. In some states, men account for almost 40% of parental leave claims, a rate that approaches international leaders such as Sweden and Norway. In Australia, by contrast, women claim the vast majority of leave. The Article reviews available data and suggests explanatory factors for future empirical study, including the possible gendered effects of gender-neutral leave policies that require a single person be designated as the primary caregiver.

This Article was reviewed by Professor Naomi Cahn in JOTWELL. Professor Cahn’s review is available here: https://family.jotwell.com/the-paradox-of-parental-leave/.

Keywords: Parental Leave, Maternity Leave, Family and Medical Leave Act, paid family leave, Australia, Comparative Labor Law, Primary caregiver leave, pregnancy discrimination, equality theory