LAW'S ABILITY TO FURTHER THE "MENSTRUAL MOVEMENT".

Date22 September 2021
AuthorCotropia, Christopher A.

INTRODUCTION

The current menstrual movement (1) calls for overcoming the cultural stigma associated with menstruation, achieving "menstrual equity," (2) and ending "period poverty." (3) The stigma the movement seeks to address is that menstruation is seen as taboo, unclean, and impure. (4) The movement's aims are twofold: First, it wants to increase awareness of menstruation and remove discrimination against those who menstruate, thus achieving menstrual equity. Second, it intends to provide greater access to menstrual hygiene products ("MHPs"), particularly for homeless and lower income people, thus eliminating period poverty. (5) To achieve these goals, the movement is advocating to legislatively eliminate the "tampon tax" (6) and increase access to MHPs in prisons, homeless shelters, and schools. (7) It also supports lawsuits challenging the constitutionality of the tampon tax.

Advocates view these legal changes as instrumental in furthering the goals of equity and access to MHPs that underlie the movement. This Essay discusses whether the two major legislative changes the movement advocates--repeal of the tampon tax and providing MHPs in schools for free--will actually achieve the movement's goals. The Essay begins by explaining how these legal changes, in theory, are meant to address menstrual equity and period poverty. It then explores the operational limits to, and expressive benefits of, these legal proposals. The Essay concludes that the expressive function of demanding these legal changes, and sometimes achieving them, plays a more significant role than the laws' actual operation in reaching the movement's goals.

  1. Two Proposed Legal Changes to Achieve Menstrual Equity and Eliminate Period Poverty (8)

    1. Eliminating the "Tampon Tax"

      One call for legal change is the elimination of the sales tax imposed on MHPs. The menstrual movement has prompted twenty-plus states to consider legislation to exclude MHPs from the sales tax, with seventeen states passing such legislation and removing the tax. (9) The movement has also pursued litigation to force removal of the tax on equal protection grounds in cases filed in New York (10) and Michigan. (11)

      Taxing MHPs is viewed as unfair and inequitable because MHPs are necessities. (12) Their taxation is especially inequitable given that it targets an "immutable" characteristic of roughly half the population. (13) This tampon tax is seen as a de facto tax on being a woman. (14) This inequity is amplified because many products that are used to treat biologically male-oriented conditions are exempt from sales taxes.

      Repealing tampon taxes can also increase MHP affordability and, in turn, accessibility by lowering consumer prices. (15) MHPs are expensive products and few, if any, public assistance programs cover MHPs. (16) Lowering the price by removing the tax helps address period poverty.

    2. Providing Free MHPs in Schools

      Another legislative push would require public and middle schools to provide MHPs in bathrooms at no charge. (17) So far, over twenty-five states have considered such legislation, and it has passed in seven states: California, Georgia, Illinois, Tennessee, New York, New Hampshire, and Virginia. (18)

      Legislation requiring the provision of MHPs in schools is based in part on the desire for menstrual equity. Menstrual management, particularly for school-aged individuals, is an important public health and educational issue. (19) Providing MHPs in school restrooms for free can address the stigma associated with needing to ask for assistance--often from a male teacher or administrator, improve attendance and performance in school, and support health in general. (20) The provision of MHPs, no questions asked, in the privacy of a restroom, grants menstruators the autonomy similarly enjoyed by those who address their biological needs with already freely provided toilet paper or paper towels.

      The legislation also addresses period poverty by providing MHPs for free to school-aged menstruators. (21) Making MHPs available for free at school addresses access issues for those who have difficulty affording these necessary and expensive products. (22) And, if schools provide them in the restroom, access to MHPs is not limited by school nurses or other administrators.

  2. Limits to the Force of These Legal Changes

    On paper, eliminating the tampon tax and providing free MHPs in schools makes practical sense. These legal changes can "make[] a difference" via the law's coercive power to demand a particular action (i.e. remove the tampon tax and/or provide MHPs to students). (23) The question becomes whether the force of law alone can achieve the menstrual movement's goals. Put another way, how far does the effect of law go in achieving menstrual equity and eliminating period poverty? As described in more detail below, the legal changes sought by the movement will push society closer to these goals. But the magnitude of change they directly achieve is likely quite small.

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