Around the country and the world,
people are mobilizing for menstrual equity.
Central to the policy agenda: accessible and affordable period products for
everyone who needs them. As legislative interventions gain traction, advocates
are also readying legal arguments to challenge unfair policies. Constitutional
law scholar and dean of UC Berkeley Law Erwin Chemerinsky recently co-authored
a Los Angeles Times op-ed proposing that the failure of states to exempt menstrual products
from sales tax — the tampon tax — amounts to denial of equal protection under
the Constitution.
In forging these claims, a question emerges:
How can we recognize that barriers to menstrual access are a form of sex
discrimination without erasing the lived experiences of trans men and
non-binary people who menstruate,
as well as women who don’t? Some arguments that challenge discriminatory laws
based on sex-linked characteristics have made the point that “only women”
menstruate, get pregnant, or breastfeed. But that is not a full or accurate portrayal
— and menstrual stigma and period poverty can hit trans and non-binary people
particularly hard:
- Trans people are three times
as likely to be unemployed and more than twice as likely to be living in
poverty as the general population. Those who are disabled, people of color, or
undocumented immigrants are especially likely to be unemployed and living in
poverty. - While free menstrual products are not
uniformly provided in women’s restrooms, they are almost never available in
men’s restrooms, even for pay. Men’s restrooms are also less likely to have a
place to dispose of these products conveniently, privately, and
hygienically. - Similarly, women’s homeless shelters
sometimes provide menstrual products, but men’s typically don’t. Some domestic
violence shelters exclude trans and non-binary people — even though more than
half have experienced intimate partner violence. Those shelters often provide a
variety of types of support, including access to menstrual products for those
who need them. - While access to menstrual products in
women’s prisons is often inadequate,
it is far worse in men’s prisons. Trans and non-binary people may be
incarcerated in either. - Menstruation is not the only reason
trans and non-binary people may need menstrual products. Trans women and
non-binary people may also need pads and liners for months after vaginoplasty,
and occasionally at other times. Some who take estrogen also experience period
symptoms such as pain and nausea and may need medication to manage these
symptoms. Those who experience endometriosis or adenomyosis, conditions that
can cause continuous heavy bleeding, often face barriers to treatment, as well
as an ongoing and often unmet need for pads and tampons.
Simply stated: because limited access
to and the cost of menstrual products can hit trans and non-binary communities
especially hard, as a matter of policy, a holistic agenda for menstrual equity
and access must include trans people. (We have a Menstrual Equity Toolkit
for those interested in how to create one
But what about in the court of law?
The constitutional argument is
straightforward. Any law that targets one sex — or one race, or one religion — is
inherently discriminatory. In the context of the tampon tax, for example, Dean
Erwin Chemerinsky harkened to a famous remark by Supreme Court Justice Antonin
Scalia that a tax on yarmulkes is a tax on Jews. By analogy, a tax on menstrual
products is a tax on women — even though not all women menstruate, and some men
and non-binary people do.
Legally, the focus is on the intention
behind the action. Targeting something associated with one group can show
intent. This doesn’t require that allor only people from
the targeted group do the activity.
Take yarmulkes again. Not all Jewish
people wear yarmulkes, and some people who aren’t Jewish do wear yarmulkes (for
example, if attending a Jewish religious service). Still, if a legislature
decided to tax people for wearing yarmulkes, or to impose sales tax on
yarmulkes but not similar items, that would be anti-Semitism, and it would
violate the constitution. Similarly, imposing a sales tax on menstrual products
but not similar items is sexist, and violates the constitution.
Discrimination is illegal even when it
affects members of multiple groups. Feminist scholars have long pointed out
that sexism can harm people other than women. For example, Paula England has pointed
out the tendency to devalue labor traditionally done by women, even when it
is done by men. Ruth Bader Ginsburg famously challenged a rule
that denied widowed fathers benefits that widowed mothers received. The rule
both discriminated against women workers, who couldn’t earn the same benefits
for their families that men did, and against men who wanted the opportunity to
care for their children.
We don’t need to erase trans or
non-binary people to show that barriers to menstrual equity, such as the tax on
menstrual products, are unconstitutional sex discrimination. This tax targets a
bodily function associated with women for less favorable treatment. It relies
on sexist ideas that women’s needs are frivolous and unnecessary. It is
irrational, and it directly affects cis and trans women, trans men, and
non-binary people. It’s unfair, unconstitutional, and illegal.