AuthorFettig, Amy
PositionSymposium Conference: Are You There Law? It's Me, Menstruation


I am a lawyer, and I menstruate. I have menstruated in prisons, jails, courtrooms, legal visitation rooms, and court reporter offices. I have menstruated during court hearings, depositions, oral arguments, settlement negotiations, and prison inspections. I have passed my tampons in clear plastic bags through prison security and waited for smirking male officers to say something so I could respond forcefully without shame, but I was secretly embarrassed. I have spent long days in supermax prisons with thousands of men and wondered where I could find the closest restroom through all the locked security doors because I had a period emergency. There is a good chance that your worst period story will never beat mine. But then, we have all survived so much.

This is usually not how I introduce myself, but menstruation is a basic fact in my life and it has been a part of many of my professional and personal interactions over the years. Yet, like so many others of my generation and countless generations before mine, I generally treated my periods as a private matter--somewhat embarrassing, often inconvenient, but mostly something not to be discussed too openly. I would share a period story or two with close friends for a laugh and always offer a spare tampon or pad when asked by a female colleague--but that was pretty much the extent of my social menstruation action. If pressed, I would have said that periods were a basic biological fact that I treated as part of my overall health and the health of women and girls everywhere.

But I have to confess, that wasn't the full truth. If it had been, I would have been attuned to the fact that our society chooses to ignore menstruation or take any responsibility for it, that misogynistic connotations of women's long debunked mental and physical weakness still linger over the fact that we menstruate, and the idea that menstruation is somehow unclean, unsanitary, and shameful remain woven into how society talks about or fails to talk about the menstrual cycle. The mere fact that happy, glowing, pastel-colored tampon advertisements can be seen on television or Instagram hasn't changed the cultural reality of silence and stigma around menstruation--or the fundamental lack of support and dignity that our society offers to people who menstruate.

The full truth about me is that I am a civil rights litigator who represented women prisoners in class action lawsuits about unconstitutional conditions of confinement for many years before I started asking them about their periods. I asked them about their mental health care and medications, I learned about their histories of trauma and abuse, and the horror of their incarceration experiences. I talked with them about being shackled during pregnancy, pre-and post-natal care or the lack thereof, access to abortions, and visits from family. I learned a great deal about use of force and sometimes sexual abuse perpetrated by officers on incarcerated women. And I also heard a lot about bad food, filthy showers, and inadequate toothbrushes. But it took me far too long to ask about bad tampons--or the fact that it's hard to get a tampon in prison in the first place.

In retrospect, it seems incredible to me that I didn't start out asking my clients about periods in prison and no one actually brought them up for such a long time. We were trapped in the cone of silence and submission around periods that existed and still exists in too many aspects of our society. This silent submission is now even more incredible to me after the years I've spent hearing the same horror stories of menstrual mismanagement, deprivation and degradation across prisons, jails, states, and communities.

Fortunately, the silence is lifting. And the submission is fading away. For too long, the enormous impacts of menstruation on over half the population during our life cycles has been largely unaddressed in U.S. law, policy, or public consciousness. But now, the proverbial floodgates are open and they will not be closed. In the last few years, states and localities have passed laws to ensure the provision of safe, affordable, or free menstrual products; tampon taxes have been repealed; and even the infamously incompetent and misogynistic former President, Donald Trump, signed a law ensuring ready access to adequate menstrual hygiene products for incarcerated women in the federal Bureau of Prisons. (1) But we are still at the beginning of this movement for menstrual equity. The United States remains a country where menstruating is a liability for all and a weapon and instrument of control used against many, and where equality of opportunity and dignity for those who bleed is often undermined by law, policy and practice. (2)

This Essay takes a look at the movement for social change around menstruation, especially through the lens of the criminal legal system and prisons and jails in particular. Part I reviews the issues of period poverty and justice that are driving a larger social movement to recognize that safe and ready access to menstrual hygiene products should be framed through a lens of full civic participation in order to understand its full implications for the lives of people who menstruate. Part II dives into the particular needs and problems of abuse and control that incarcerated and detained people face related to menstruation. Part III examines the growing movement to transform menstruation in America along equity lines that focuses both on the rights of all menstruators while bringing social pressure to bear on behalf of the most vulnerable--incarcerated people, the unhoused, students, and those living in poverty--to demand greater governmental and cultural support for the needs, inclusion, and dignity of all people who menstruate. This Part particularly takes note of the fact that the menstrual equity movement gains strength and force when it centers the leadership and voices of people who menstruate as key players demanding social change and evolution of the culture as a whole. Part IV examines the importance of the momentum and success this social movement represents for potential litigation strategies to develop constitutional jurisprudence regarding incarcerated people and menstrual equity. It observes that the pertinent "evolving standards of decency" that inform Eighth Amendment jurisprudence must and will be influenced by the prevailing movement for menstrual equity as a deliberate strategy to ensure that incarcerated people who menstruate are not left out of the social development and rights framework that menstrual equity demands. At the same time this evolution in jurisprudence represent the opportunity for Eighth Amendment jurisprudence--and constitutional framework generally--to place a greater focus on the need for human dignity as a cornerstone of the law.

  1. Moving from Period Poverty to Menstrual Equity

    There are roughly two billion people on this planet who menstruate, and worldwide about 800 million people are menstruating on any given day. (3) Of those daily menstruators, an astonishing 500 million people lack adequate facilities for menstrual hygiene management. (4) But this is not just a problem of the developing world or countries that lack adequate resources or laws and policies that promote equality for women and girls. Many of these vulnerable people who menstruate are in the United States, where our failure to treat menstruation as a public good--whether construed as a basic human necessity, like food or medicine, or a larger social construct that demands a culture where all barriers which exclude menstruators from full civic participation are removed--translates into social harm for all, and especially our most vulnerable people.

    On average, a person who menstruates spends about 2, 500 days of their life menstruating, which amounts to nearly seven years of bleeding during an average life span. (5) Dealing with monthly "periods" in our lives is no small thing for myself and my fellow menstruators--but in this day and age it should not be the economic, social, cultural, and health burden it remains for most of us.

    In order to remove this burden and support full and equal participation in society for people who menstruate, we need "menstrual equity." The concept of "menstrual equity," first coined by lawyer and advocate Jennifer Weiss-Wolf, (6) includes the idea of menstrual products that are safe and affordable for all. But the concept goes much deeper to root out the structures that undermine the full participation of people who menstruate in society at large. (7) Currently, in the United States, menstrual hygiene products are not readily available and accessible in our places of work, public institutions, or public spaces. (8) They are generally not allowable budgetary expenses for publicly funded schools, shelters, or crisis and emergency centers and provision is often inconsistent or coercively addressed in correction facilities and detention centers. (9) Indeed, tampons and pads are actually considered a luxury good in many state tax systems, unlike food or medicine or a variety of lesser goods such as licorice, donuts, or gun club memberships, so they are subject to state sales tax. (10) Despite these obvious iniquities, in 2020, thirty states still taxed menstrual hygiene products. (11) It is estimated that states actually make an estimated $130 million in tax receipts from our periods. (12)

    This failure to recognize that menstruation is a public good that demands both material support to maintain the populations' health and hygiene while at the same time necessitating social support in order to maximize the full participation of all people in our society, implicates all of us. But it also demands that we focus on those most vulnerable to the impacts of menstrual taboos and costs. When we do that, we see that the stigma and discrimination that menstruators face most squarely falls on those least able to...

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