COMPARED TO WHAT? MENSTRUATION, PREGNANCY, AND THE COMPLEXITIES OF COMPARISON.

• Author: Waldman, Emily Gold
• Position: Symposium Conference: Are You There Law? It's Me, Menstruation

INTRODUCTION

When crafting a sex discrimination argument, finding the right comparison can be crucial. Indeed, comparison-drawing has been a key strategy for advocates challenging the constitutionality of the tampon tax. In their 2016 lawsuit challenging New York's tampon tax, the plaintiffs alleged that the New York State Department of Taxation and Finance had imposed a "double standard" when deciding which products would be considered tax-free medical items and which would not. (1) Their complaint stated:

Medical products exclusively for women are taxed. Medical products also used by men are not. For example, the Department considers Rogaine, foot powder, dandruff shampoo, chapstick, facial wash, adult diapers, and incontinence pads to be medical items. These products are not taxed. But medical items used only by women--tampons and sanitary pads--are taxed. (2) The comparison argument had powerful rhetorical force--and popular appeal. Within several months after the complaint was filed, New York repealed its tampon tax. (3) Shortly thereafter, plaintiffs in Florida filed a parallel lawsuit, emphasizing that in deciding which products would meet the statutory definition of "common household remedies," the Florida Department of Revenue had "excluded tampons and pads from the list of nontaxable medical items," while including "adhesive tape, epsom salts, athlete's foot treatment, minoxidil for hair regrowth (i.e., Rogaine), and petroleum jelly" as well as "band-aids, bandages, and gauze." (4) Within a year, Florida had repealed its tampon tax as well. (5)

The website of "Tax Free. Period"--the "legal, advocacy and public engagement campaign founded by Period Equity and LOLA [a menstrual product company] to end the tampon tax in the U.S."--also emphasizes the comparison theme. (6) Its homepage features an interactive United States map that allows the visitor to click on different states and see which items are tax-exempt in the states that are still taxing tampons and pads. Clicking on Texas, for instance, reveals that "Texas has a tax on tampons, but dandruff shampoo is untaxed." Clicking on many of the other states reveals some arresting comparisons: "Georgia has a tax on tampons, but tattoos are untaxed," "New Mexico has a tax on tampons, but souvenirs at minor league baseball stadiums are untaxed," "Iowa has a tax on tampons, but cotton candy is untaxed," and so on. (7) "Bingo supplies? Doughnuts? Seriously?" reads the map's caption. (8)

The comparison lens is not unique to the tampon tax. The Pregnancy Discrimination Act (PDA), which amended Title VII to state that the prohibition on discrimination "because of sex" included discrimination "on the basis of pregnancy," (9) frames one of its core protections in comparative terms. It provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work." (10) The PDA itself was passed in response to two prior Supreme Court comparison-drawing cases in the pregnancy context: Geduldig v. Aiello (11) (which arose under the Equal Protection Clause) and General Electric v. Gilbert (12) (which arose under Title VII). In those cases, the Supreme Court held that treating pregnancy less favorably than other medical conditions did not necessarily amount to sex discrimination, because the relevant comparison was not between men and women, but rather between "pregnant women" and "nonpregnant persons." (13) The PDA rejected that reasoning, shifting the comparative frame (at least in the Title VII context) from pregnant women versus nonpregnant persons to pregnant employees versus non-pregnant employees. But it retained the underlying comparative approach. To win pregnancy accommodation claims under the PDA, it is not enough for plaintiffs to show that their pregnancy-related needs were not accommodated; they must also show that analogous requests by equally-limited non-pregnant employees were granted. (14)

This piece explores the complexities of the comparative model as applied to sex discrimination claims that are connected to female biology. On the one hand, comparisons can be a useful and precise way to pinpoint discrimination. The notion that bandages and adult diapers are tax-exempt, while tampons and pads are not, brings the unfairness of the tampon tax into sharp relief: Why are those products for absorbing bodily fluids tax-free, when menstrual products are not? The same is true for a pregnant employee who can show that her request for a light-duty...