This article examines the implications for transsexuals seeking sexual reassignment surgery (“SRS”) under the Family Medical Leave Act (“FMLA”). Currently, the scant case law pertaining to the FMLA suggests that the statutes and regulations will likely fail to provide even minimal protection to transsexuals. If applied literally, the FMLA may present barriers to transsexuals seeking SRS in opposition to the true purpose behind the Act, which is to allow employees the opportunity to take reasonable leave from work by mandating more medical leave than the employers might otherwise be willing to grant for things such as the adoption or birth of a child, care of a closely related family member, or for serious health conditions. For example, SRS may fail to constitute a “serious health condition” as defined by the Act, or SRS could be characterized as a cosmetic surgery, which is specifically excluded from the Act. As a result, transsexuals would be denied coverage under the FMLA and prevented from proceeding with the necessary procedures for transsexuals to conform to their gender identity. In response, this article suggests that courts and employers should consider a more flexible approach for transsexuals seeking FMLA leave for SRS in order to afford deference to transsexuals’ constitutional rights and privacy interests. This construction would further the goal of the FMLA by providing job security to transsexual, would benefit employers and society at large by fostering a better understanding of the transsexual experience, and would mark yet another step towards equality for all.
Charles Thomas Little, Transsexuals and the Family Medical Leave Act, 24 J. Marshall J. Computer & Info. L. 315 (2006)