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Analizing the Tampon Tax

By mdavis

One of many low points in the recent presidential campaign was the night when then-candidate Trump tried to shame Megyn Kelly by saying that there was blood coming out of her eyes and her “wherever,”  apparently alluding to menstrual bleeding.  As women increasingly reclaim menstruation, however, and refuse to treat it as something as dirty and unmentionable, such shaming tactics are less and less effective.  At the same time, the ways in which menstruation’s invisibility has hurt women become more apparent.  The tampon tax — a sales tax paid on tampons and other menstrual products — is one of the many ways that women’s inequality has been perpetuated by this silence.  The tax typically does not single out menstrual products for taxation, but by treating such products less favorably than non-essential items often used by men, such as Rogaine, the tax system unfairly burdens women.

In September, California Governor Jerry Brown vetoed state legislation that would have eliminated the sales tax on tampons and other menstrual products.  But while California waits, change has already come in New York, Connecticut, Illinois and Canada.  The “Free the Tampon” movement is also active in Australia, the UK, and Switzerland, with considerable traction.  Depending on the jurisdiction, some estimate that women spend between $20 and $100/year just paying the tax associated with these necessities.  If the sales tax was lifted, women would save thousands over the course of a lifetime.

Law Professors Bridget Crawford and Carla Spivack will publish their analysis of this issue in a forthcoming volume of the Wisconsin Law Review.   The article is titled Tampon Taxes, Equal Protection and Human Rights.  Here’s the abstract:

Abstract:     
In recent months, activists around the globe have harnessed the power of the Internet to raise awareness of the so-called “tampon tax,” an umbrella term to describe sales, VAT and similar “luxury” taxes imposed on menstrual hygiene products. In response to pressure from constituents, five U.S. states and Canada have repealed their tampon tax. Active campaigns are underway in Australia, the United Kingdom and several other countries. Where public pressure has not been an effective technique, those seeking to challenge the tampon tax in the United States have turned to litigation. In four U.S. states, class action lawsuits have been filed seeking repeal of the tax and a refund for back taxes paid, alleging equal protection violations. In the international context, human rights law provides a promising foundation for similar legal challenges to the tampon tax because human rights law takes a capacious approach to gender equality. In the European Court of Human Rights, for example, there are several tax cases that recognize gender-differentiated taxes as a form of impermissible discrimination. This Article explains how the tampon tax violates equal protection and human rights norms. The tax also shows how deeply embedded gender is in matters of tax policy. Full realization of gender equality will require revision of tax laws.

Girls and women use tampons and sanitary napkins for multiple days every month for at least 30 years because of their biology. At first glance, the tampon tax might appear to be the result of a misclassification of menstrual hygiene products as luxuries, while items like Rogaine and condoms, for example, generally avoid taxation. But these comparisons are inapt, as it is difficult to find a precise male analog to the menstrual hygiene products that women use. Nor is it adequate to explain the existence of the tampon tax as the product of women’s historic absence from the legislature. This explanation is both simplistic and incomplete. Women’s bodies in general and menstruation in particular have been and continue to be the source of great cultural (and legal) unease. Women’s (involuntary) bleeding is meant to happen “out of sight, out of mind,” whereas men’s (voluntary) bleeding in war is meant to be celebrated.

Part I of this Article provides an overview of the sales and similar taxes on menstrual hygiene products. Part II explains why, as a cultural matter, the tampon tax has gone unnoticed. Part III situates consideration of the tampon tax in the context of international human rights. Part IV explores current legal challenges to the tampon tax in the United States and outlines a possible human rights challenge to the tax in Europe. The Article concludes with a discussion of why the tampon tax has become a global issue and why the tax law provides a unique lens for examining issues of gender inequality.