President-elect Donald Trump has proposed 6 weeks of paid leave for new mothers. New fathers, same-sex female partners, adoptive parents, and foster parents, however, would not receive any paid time off to care for a new child.

Trump’s plan says it’s similar to California’s law, but that state’s program permits all new parents to take paid time off for the birth, adoption, or foster placement of a new child.

The federal proposal is, however, like California’s program—and other states’ programs, for that matter—in that employers would not bear the cost. In California, New Jersey, and Rhode Island, wage replacement is offered through the state’s disability insurance program, which is funded through employee paycheck withholdings. Trump’s plan says the leave would be funded by cracking down on unemployment insurance (UI) fraud.

The plan does not, however, say what the wage replacement rate would be. Workers in California can receive 55% of their wages for up to 6 weeks. New Jersey provides two-thirds of a worker’s salary for 6 weeks. Rhode Island provides 4 weeks and an employee’s weekly benefit is based on a previous quarter’s pay. New York will join the list in 2018, offering 12 weeks at 50 percent to all new parents, with planned increases.

Other Exclusions?

It’s also unclear whether Trump’s plan applies to all new mothers or only those who are recovering from childbirth. Accompanying documents make the following mentions of “birth” or “having a baby”:

• The United States is the only developed country that does not provide cash benefits for new mothers. According to the U.S. Department of Labor: “Only 12 percent of U.S. private sector workers have access to paid family leave through their employer[.”] Each year, 1.4 million women who work give birth without any paid leave from their employer. 
• The Trump plan will enhance UI to include 6 weeks of paid leave for new mothers so that they can take time off of work after having a baby. This would triple the average 2 weeks of paid leave received by new mothers, which will benefit both the mother and the child.

And that’s an important distinction because it could determine the constitutionality of the program. A policy that draws distinctions based on pregnancy could potentially survive a legal challenge, according to Ilya Somin, a law professor George Mason University. But that’s not what Trump’s plan does, he said in a Washington Post op-ed.

“Trump’s plan does not discriminate between people who are pregnant and those who are not. It discriminates between new mothers and new fathers. It is not a law that, as the [Supreme] Court put it in a 1974 ruling, classifies on the basis of the ‘physical condition’ of pregnancy and thereby avoids ‘discrimination based upon gender as such.’ A law that creates a benefit for new mothers but not new fathers clearly does ‘discriminate based upon gender as such,’” according to Somin. “[I]f Trump’s maternity leave plan were ever enacted into law, it would likely be struck down by the courts as unconstitutional,” he wrote.

The Society for Human Resource Management (SHRM), however, has interpreted the plan as drawing that permitted distinction between women recovering from childbirth and those who are not.

Both the Post and SHRM also have noted that the proposal seems only to apply to married mothers. The leave plan is included in Trump’s overall “child care” proposal, which also includes tax deductions and dependent care savings accounts.

Following the list of proposed benefits, the campaign says that “[t]he benefits would be available in the same way that the IRS currently recognizes same-sex couples: if the marriage is recognized under state law, then it is recognized under federal law.” According to the Post, however, a campaign spokesman said that unmarried mothers would be eligible for the leave.

Trump’s campaign did not respond to a request for comment.