The menstrual leave Part 1 – With the law on our side?

Hi there!

Have you heard the news? Spain will soon become the first western country to implement a menstrual leave. From 2023, menstruating individuals (women, transexual men or nonbinary people) with severe period pain will be allowed to take as many days as needed off work, with no salary or sick leave cuts. Spaniards will only need a doctor’s note certifying they suffer from an illness causing severe period pain, AKA debilitating secondary dysmenorrhea. Justice should be a tool to provide all of us with fair opportunities, but are menstrual leaves fair? Some argue that these legislations are a step forward, some are wary of the consequences they could have for menstruating individuals, and still, others question whether the current written laws are enough!

This discussion is multifaceted, and since not all of us can be medical doctors, biologists or law experts, in this 3-part series of articles, I will aim to help you find your footing in this debate.

The pioneers

Let’s start by reviewing the already existing menstrual leaves around the globe. The truth is, in terms of menstrual law, a bunch of East Asian countries (and an African one) are looking back at the rest of us with a smirk. But do they have the right to do so?

The oldest standing menstrual law came into force in Japan in 1947. Article 68 of the Labour Standards Law states that women with especially painful periods can miss work as long as they are ok with the pay cut. Quite forward for the 40s, isn’t it? This mandate was part of a more exhaustive revision undergone by Japanese institutions to embrace industrialisation fully, and since then, Japan has become a technological powerhouse. However, despite being more than 70 years old, menstrual leave has not integrated well into the psyche of the Japanese. A survey published in early 2022 revealed that not even one out of every ten women experiencing strong period cramps profits from it. The interviewees felt reluctant to ask their predominantly-male bosses, partly because it is pretty rare to do so.

After that, the world had to wait until 2001 for the menstrual leave to arrive in South Korea, as Article 73 of the Korean Labor Standards Act – a simple line granting female workers one day off upon request. If only asking was as easy as it sounds. In her book ‘Kim Jiyoung, born in 1982’, Cho Nam-Joo talks about South Korean women’s struggles once they become mothers. Suddenly, their male-dominated workplaces turn hostile, pushing them to quit and ultimately become stay-at-home wives. In real life, this animosity impregnates any female-related topic. Social media is flooded by outraged Korean men proclaiming that females adhering to Article 73 should be ashamed of themselves. If people are openly talking like this, it is just fair to imagine that what goes on behind closed doors is even worse.

In Taiwan, the Act of Gender Equality in Employment Article 14, enacted in 2002, allows women employees one day of paid leave per month due to period cramps upon request, with a maximum of 3 days annually. However, in a study published almost a decade after the law came into force, an alarming number of workers declared not to understand the law itself or how to apply for it. In fact, the most common worry was what would happen in case of absence – will I need to do overtime to compensate for it? Or will someone else have to stay longer because of me?

In 1993, 24-year-old Indonesian labour activist Marsinah was found dead under strange circumstances. She was a vocal advocate for women’s rights, including menstrual leave, and would have been thrilled, I am sure, to see Article 81 of Law No. 13 added to the Labour Laws of Indonesia in 2003. The article grants women with painful menstruations the possibility to stay at home on the first and second days of their periods. However, she wouldn’t be so happy to know that Article 81 remains widely unknown, much like other female rights related to maternity and breastfeeding.

The last country to make our list is Zambia, which welcomed Section 54(2), to Chapter 268 of their laws, in 2017, causing some nationwide turmoil. Most Zambians believe that ‘mother’s day’ (as it has been popularly nicknamed) is either unnecessary or a way for lazy women to have one extra day off. Why do you ask? Well, in Section 54(2), menstrual issues are only implied: ‘every female employee shall be entitled to one day’s absence from work each month without having to produce a valid medical certificate’. This comes as no surprise once you learn that in Zambia, period talk is still highly taboo. Nevertheless, it is not difficult to find online articles and interviews urging workers practising ‘mother’s day’ to stay home (No shopping! No mingling!).

Some food for thought

As early as the 80s, some studies revealed that American and Finnish teenagers commonly skipped school due to cramps. Bearing the controversial question: Would working women also choose to stay home if their livelihood wasn’t dependent on it? The answer is… no, but for all the wrong reasons since their livelihood is still reliant on it. As we have seen, laws might exist. Still, their application is flimsy at best and hijacks female employees’ financial autonomy (due to salary cuts) and career stability (caused by coworkers’ and bosses’ retaliation). As if we taught the starving man to fish but threw rocks at him every time he approached the pond. Moreover, not a single one mentions other menstruating individuals, like transmen.

Spain has opted to distinguish its brand-new law from the previous ones by including medical terminology. Is this the answer, though? How should a menstrual leave be, to actually be fair?

Stay tuned for part 2!