MENSTRUATION AND THE BAR EXAM: UNCONSTITUTIONAL TAMPON BANS.

• Author: Crawford, Bridget J.
• Position: Symposium Conference: Are You There Law? It's Me, Menstruation

Abstract

Some states have policies that prevent bar exam candidates from bringing their own menstrual products to the test. Via social media, awareness of these policies achieved new heights in the weeks leading up to the July 2020 bar exam. A small number of jurisdictions responded to public criticism by permitting test takers to bring menstrual products with them to the exam, whether administered traditionally or remotely in response to the COVID-19 pandemic. Not all states have adopted permissive policies, however. This Essay explains why outright bans on menstrual products at the bar exam likely are unconstitutional. So-called alternate policies, such as making menstrual products available in women's restrooms, are inadequate. Only a "free-carry" policy for menstrual products is consistent with welcoming all qualified candidates to the legal profession, without regard to biology.

INTRODUCTION

Aspiring lawyers planning to take the bar exam during the coronavirus pandemic face considerable challenges. In the pandemic's early months, leading up to the July 2020 bar exam, candidates continued to study for a test that was not certain to occur. Just a few weeks before the original test dates, some states made late-breaking decisions to postpone or cancel their bar exams. (1) In other jurisdictions where the test was scheduled to proceed as planned, another source of anxiety emerged. News spread on social media that some states banned bar candidates from bringing their own menstrual products to the examination. In response to public criticism, a small number of states modified their policies to expressly permit bar candidates to bring menstrual products, but not all states did so. (2) Discrimination against menstruating bar-exam candidates persists in many jurisdictions in the United States.

Part I of this Essay provides an overview of states' policies on menstrual products leading up to the July 2020 bar exam administration. It then describes the social-media generated critique of those policies and the modifications that bar examiners made (or did not make) in response. Beyond the tampons referred to in the title of this Essay, all menstrual products--including tampons, pads, and menstrual cups--appear to be subject to bar examiners' policies. Part II outlines the argument that these bans on menstrual products at the bar exam are an unconstitutional form of gender discrimination. There are three potential problems with so-called alternative policies, such as providing products in women's restrooms or informally permitting candidates to bring menstrual products. These alternatives (1) do not meet the needs of all test takers; (2) promote uncertainty and confusion among bar candidates; and (3) evince a hostility toward approximately half of all future lawyers. The Essay concludes by linking access to menstrual products to other concerns that bar examiners must address in order to make testing conditions fair for all. Test administration policies should be consistent with the legal profession's greatest values of equal opportunity and inclusion.

1. #BIoodyBarpocalypse: Some States Prohibit Menstrual Products at the Bar Exam

   In the Spring of 2020, when law schools in the United States pivoted abruptly to online instruction, no one could have foreseen that the pandemic would continue well into the next academic year. After the cancellation of in-person graduation ceremonies, recent law school graduates hunkered down to study for bar exams that were not certain to occur in July. Some states, such as Hawaii and North Dakota, cancelled their July exam administrations with ample notice to candidates. (3) Other states like Illinois announced that it would proceed with the in-person exam as scheduled, only to cancel just five days before the test date in favor of a September in-person test that ultimately was cancelled as well. (4)

   Amidst this unprecedented uncertainty, exam candidates took to social media to publicize that some state boards of bar examiners prohibit test takers from bringing menstrual products with them. No state has ever provided a rationale for this prohibition; presumably such a policy has something to do with unarticulated concerns about cheating or test security. (5) Consider the example of Arizona, to name just one state. The administrators of the Arizona bar examination sent to July 2020 exam candidates a list of items "strictly prohibited" in the exam room. (6) The list included predictable items, such as cell phones and backpacks, but also "feminine hygiene products," explaining that these "will be made available in the women's restrooms," but not giving a rationale for the prohibition on candidates' bringing their own menstrual products. (7) After an outpouring of criticism--notably on Twitter under the hashtag #bloodybarpocalypse originated by Professor Caitlin Moon (8)--Arizona wisely changed its policy. (9) Shortly thereafter, Texas announced that it would change its policy for the September 2020 bar exam, (10) but then did not alter its published instructions for October 2020 bar exam takers. (11)

   By means of an open letter dated July 20, 2020 and signed by over 2,800 lawyers and law students in just twenty-four hours, Professors Marcy L. Karin, Margaret E. Johnson, and Elizabeth B. Cooper amplified and publicized concerns about state bar examiners' menstrual product policies. Their letter urged the National Conference of Bar Examiners (NCBE) to prohibit state bans on menstrual products. (12) In response to the open letter, an NCBE spokesperson said the organization "had contacted all jurisdictions to clarify any misunderstanding about our policy and to let them know that we strongly discourage any prohibition on allowing candidates to bring their own menstrual products into the testing room," but the organization did not release any official policy. (13) For months afterwards, Professors Karin, Johnson, and Cooper, collaborating under the umbrella advocacy group name "Menstrual Products and the Bar," worked with teams of law students from Fordham Law School's Legislative and Policy Advocacy Clinic and the University of the District of Columbia School of Law's Legislation/Civil Rights Clinic to reach out to bar examiners. The students urged states to issue clear, publicly-available guidance that expressly permits candidates to bring their own menstrual products to the bar exam; they also developed a model policy that states can adopt. (14) This work continues with real-time updates delivered via social media, including the Twitter account @MPandtheBar. The advocacy has already met with some success. At its midyear meeting in 2021, the American Bar Association's House of Delegates adopted a resolution urging all bar admissions authorities to publish clear policies and rules that permit test takers to bring their own menstrual products to the bar exam in opaque containers. (15)

   In July 2020, thirteen states ultimately went forward with the traditional two-day, in-person exam. (16) Other jurisdictions responded in different ways including alternate test dates for in-person or remote exams (or a combination of both), (17) total cancelation of the bar exam, (18) and/or offering some form of diploma privilege. (19) For those needing to address their own menstruation while taking the test...