Is the Tax on Tampons Unconstitutional?

Is the Tax on Tampons Unconstitutional?

Is the Tax on Tampons Unconstitutional?

The group Period Equity says yes—and is pushing lawsuits to repeal it in 35 states.

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On a warm Friday night in September, about 20 lawyers, policy-makers and advocates crowded into the back of an Italian restaurant in New York City’s Upper West Side. As a server squeezed between the seated rows, Laura Strausfeld, a petite, bespectacled woman, stood atop a chair. “I just want to say tampons really loudly,” she said. The guests laughed. Then they obliged. “TAMPONS!”

Strausfeld is one of the founders of Period Equity, a legal and policy organization dedicated to making menstrual products affordable and accessible. Along with her cofounder, Jennifer Weiss-Wolf, she had gathered these women tonight to kick off a weekend-long conference at Columbia Law School dedicated to repealing the sales tax on tampons and pads in 35 states by April 15, 2020. Period Equity, and its partner LOLA, a tampon subscription company that has provided funding for the campaign, aim to accomplish this by convincing grassroots lawyers and advocates to make the case that the tampon tax violates the Equal Protection Clause of the 14th Amendment. Since the tax only affects women, who are the majority of people who menstruate, Period Equity reasons that it’s discriminatory and unconstitutional.

For this group of women, the tampon tax is more than the 4 to 10 percent tacked on top of the $7 one might pay for a box of Tampax. Rather, “it is emblematic of what it means to be disregarded and not acknowledged by the very systems by which we live,” Weiss-Wolf said. “There are so many ways we, as women, are not represented.” Dismantling the tax, Period Equity argues, is the first step to achieving what they call “menstrual equity”—in short: safe and affordable access to menstrual hygiene products for everyone who needs them.

For the past four years, Strausfeld and Weiss-Wolf had been looking for ways to repeal the tax. They had authored op-eds in national media; Weiss-Wolf had launched a Change.org petition in conjunction with Cosmopolitan magazine. But it was mostly “a kind of glorified hobby,” Weiss-Wolf told me, until 2016, when they recruited a New York–based class-action law firm to mount a legal challenge arguing that tampons and pads should qualify for a medical exemption from the state’s sales tax.

The strategy brought them success: About a month after they filed the lawsuit, Governor Andrew Cuomo signed a bill into law repealing the tax. An independent grassroots movement soon started taking root in states. By 2018, four more states had followed suit: Nevada, Connecticut, Illinois, and Florida, which had also faced a lawsuit that pushed the legislature to act. “That’s actually radically fast,” Weiss-Wolf said.

Period Equity credits the speed, in part, to the bipartisan nature of the cause: The tampon tax issue is not just a social justice issue; it’s also popular with anti-tax conservatives. In Florida, for example, the bill that ultimately repealed the tax was filed by a Republican. And even though critics point out that tampons and pads are something, recession or boom, consumers will reliably buy, the sales tax on those products doesn’t amount to a significant portion of states’ budgets. It’s also only $300 over the course of one person’s lifetime.

But last session, the momentum stalled. Twenty-two states introduced bills to repeal the tampon tax. None passed, though California and Rhode Island did repeal the tax in their budgets. “We didn’t want this to become the joke bill that gets introduced every session and never gets passed,” Weiss-Wolf said.

Through panels and discussion, Period Equity hoped to build upon a framework outlined in a 2018 law review by Emily Gold Waldman and Bridget Crawford, professors at Pace University. Since tampons and pads can be seen as a “unique proxy for the female sex,” Waldman, a constitutional law scholar, and Crawford, a tax attorney, argued that the tax violated the Equal Protection Clause of the 14th Amendment. “It was a sort of interesting intellectual puzzle in a way, because it’s not like right on its face [the tax] says ‘women,’ but you’re talking about a product that is obviously inextricably linked to female biology,” Waldman said. She noted that menstrual products are often referred to as “feminine hygiene products.”

Period Equity and the local attorneys partnering with the group are aware that challenging the tax will require going against decades of established jurisprudence. In 1979, the Supreme Court ruled in Personnel Administrator of Massachusetts v. Feeney that a law giving hiring preference to veterans in the state—98 percent of which were men at the time—over non-veterans wasn’t unconstitutional because it served a “legitimate and worthy” purpose. And while litigants in New York and Florida both voluntarily dismissed their cases once the legislature repealed the tax, the only case to have a hearing, California’s, was ultimately dismissed by the judge in 2018.

Still, Period Equity and its partners are optimistic. They point out that United States v. Windsor, which paved the way for the Supreme Court to legalize same-sex marriage, was actually a tax case. “Tax is this amazing lens that really reduces discrimination to dollars and cents,” Crawford said.

At a reception on Saturday following the conference, attendees bounced around ideas of how to take this strategy back to their home states over catered sushi and plastic glasses of wine. “The movement is still small enough that we can get people in a room like this,” Strausfeld said.

While many of the attendees were lawyers working with Period Equity on legal strategy, others were members of grassroots groups from West Virginia, Georgia, and South Carolina with which Period Equity has built connections. In West Virginia, it’s uncertain if they’ll pursue litigation, said Alisa Clements, a representative from Planned Parenthood South Atlantic in that state. In the past three years, Clements has lobbied for a series of “menstrual equity” bills, including one that would repeal the tampon tax. But only one bill, which would put free menstrual products in schools, has made it to the floor. Last session, the bill passed the Senate with a near-unanimous vote, but the House majority leader, Amy Summers, wouldn’t bring it to a vote.

There was also some concern among advocates from red states that, unlike New York or Florida, a lawsuit won’t make the legislature budge. In a corner next to a platter of desserts, I spoke to Adele Stewart and Claire Cox, who came to the event with a group called Georgia STOMP (“stop the tax on menstrual products”). They represent a coalition of 15 groups across the state that, in turn, represents over 15,000 women from rural and urban Atlanta. “The group that we work alongside and abreast of in Georgia doesn’t look like us,” Adele Stewart, one of STOMP’s co-leads, said, gesturing to the wider room of mostly white women.

Cox nodded in assent. “I think it very much is a working-class issue in Georgia,” she said. “It’s not typically the elite who are talking about this, many times their conversation is, ‘It’s not very much money, it doesn’t affect women.’ A small amount of money to you might be a great portion of somebody else’s pocket.”

But it was unclear if this intersectional analysis was incorporated into Period Equity’s strategizing this weekend. Among the attendees, white men were better represented than women of color. In interviews, even women from grassroots groups conceded that while they sympathized with people who might be forced to go without tampons because of the cost, none of them had experienced that personally. And there wasn’t much discussion of the implications of challenging the tampon tax on the basis of sex discrimination when, of course, not all women menstruate, and not all people who menstruate are women. Period Equity was hesitant to discuss this on the record, simply offering this:

“There’s so many things that need fixing in the world, a little bit of it is, if we can’t fix this, how are we going to get the other stuff done,” Strausfeld said. “When there’s widespread agreement that this is wrong, can we just deal with it?”

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