AuthorSpivack, Carla
PositionSymposium Conference: Are You There Law? It's Me, Menstruation

By now, there is a robust body of scholarship critiquing the taxation of menstrual products from material, (1) expressive, (2) constitutional, (3) and human rights perspectives. (4) This literature highlights the issue of access to sanitary products in prisons, (5) in secondary schools, (6) and in poor countries. (7) Invoking the expressive function of law, scholars have noted how the tax signals to women that their basic physical and health needs are not human necessities that merit tax exemption--like say Viagra (8)--but are rather luxuries that should be taxed--like cigarettes and alcohol. (9) In this tax regime, human needs considered basic enough to merit tax relief--thinning hair, (10) for example--are male needs. So what else is new? As Catherine Mackinnon asked, ironically, decades ago: Are women human? (11)

In this Article, I want to turn the expressive critique of tampon taxation in the direction of semiotics. (12) Culture constitutes systems of signs through which we understand our world. These signs convey meaning though their difference from other signs, not through any intrinsic meaning. Tax law has its own signs. By imposing differing tax regimes on people and things, it tells us how to read them. For example, through differing taxation, it tells us what a family is (one organized around a formal marriage) and is not (networks of dependence organized around cohabitants), what work is (labor exchanged for goods) and is not (housework), etc. Taxes also tell us which goods are luxuries and which are necessities by imposing a luxury tax on certain items and exempting others.

In their differential taxation of men's and women's physical needs, taxes on menstrual products tell us how to read women's bodies. They tell us that women's bodies deviate from the standard body, which is male. (13) Like those bodies that the culture reads as disabled, female bodies require "add-ons," extra accommodations, to make them fit for public space--or any space at all, in fact. The tax code creates difference between female and male bodies by taxing women's physical necessities and not men's. It's not that anyone drafting a tax code consciously decided that no one really needed menstrual products, that they were a luxury that merited taxation. Layering taxes onto these products simply never caught anyone's attention; it never stood out as anomalous. It fit seamlessly into the word of read signs, signs that present the male body as baseline and female as baseline-plus.

I focus here on the way that the tax sign system works with the sign system of urban planning to exclude women from an equal place in public space. In doing so, I deploy the concept of semiotic systems to unify discussion of what are generally treated as discrete issues involving discrimination--taxes on menstruation products and the design of public space. This Article first historicizes women's exclusion from the public sphere and the anxiety about women's bodily fluids that became its materialized justification. I then show how menstrual taxation is part of a historically contingent and semiotically constructed gendering of public space. Then I suggest that a remedy to this broader problem of which the tampon tax is a part must disrupt the very nature of public space. To this end, I propose local initiatives for gender mainstreaming in city design and describe the successful implementation of such a project by the City of Vienna.

Free access to public space in all its forms is vital to full citizenship, full participation in community life, and full political participation. (14) This access has traditionally been denied to women. No one in twenty-first century America would say that the law denies women access to public space, yet as a practical matter, public space is less accessible to women than it is to men. Indeed, that women lack the freedom men have to be in public space--in parking lots at night, hiking alone in the woods, or even taking walking tours of cities without public restrooms--is taken for granted, if not often articulated. But, as Holly Near sang, ironically, decades ago: "A lady don't go out alone at night." (15) This cultural drive to enclose women in...

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