A Direct Tax on Womanhood: Analyzing the Discriminatory Nature of the Tampon Tax


Menstrual equity, a term coined in the mid-twentieth century by feminist activists, has gained traction in mainstream media with the rise of intersectional dialogue and women’s empowerment. Contemporary feminists have taken this initiative a step further, and have recently begun the zealous advocacy for menstrual equity in the wake of the infamous ‘tampon tax’ - a tax levied on feminine hygiene products due to the fact that they do not meet the “basic necessity” tax exemption. In light of this, when talking about women’s rights and equality, menstruation has now taken a new role right alongside conversations about the glass ceiling, #MeToo movement, and the wage gap, all with equally unclear futures.

The most prominent push towards menstrual equity in a legal context has occurred in New York State with the advent of the 2016 case Seibert v. New York State Department of Taxation and Finance. In this New York State class action lawsuit, five women filed the case with grievances against New York Tax Law § 1105(a) [1]. This statute asserts the ability to tax all tangible personal property, with medical product exemptions for items including Viagra, Rogaine, Chapstick, and dandruff shampoo. Importantly, tampons and pads have not been given this exemption status. It is alleged that their exclusion violates the language of the New York State Tax Law itself, the 14th Amendment to the United States Constitution, and the New York State Constitution’s Equal Protection Clause [2]. In the summons and complaint filed by the Plaintiffs in the Seibert case, their attorneys touched upon these issues, saying, “The tampon tax is irrational. It is discrimination. It is wrong.” The complaint also asserts that there is a double standard in how the Department of Taxation and Finance defines medical necessities for men and women, and that feminine hygiene products “are not luxury items, but a necessity for women’s health.” [3]

Focusing on the ‘tampon tax’ through the lens of the Equal Protection Clause--both in New York State’s constitution and the United States Constitution--the Seibert case makes the claim that the tax is a violation of both, saying, “...it is on its face a tax on women, and because it results in the disparate treatment of women.” [4] With New York State and it’s Constitution acting as a legal microcosm for the greater United States Constitution in regards to how this issue is being argued, it is important to understand the role of the Supreme Court when considering this subject and the issue of sex discrimination. As federal precedent flows in a “top to bottom” manner, these prior decisions on similar issues play a big part in defining how states will handle this topic at more local levels. Prior to the landmark case Reed v. Reed (1971), the Court had never struck down a sex-based law on the grounds that it violated the Equal Protection Clause. In the Reed case, however, the Court found that an Idaho law that specified the preference for men to be appointed to the role of estate administrators over women did not hold up against the Fourteenth Amendment. While the court found that the state did have a legitimate objective in passing this law, they found that it was too arbitrary. In making this distinction, the Court raised the level of scrutiny used in sex-discrimination cases from the usual rational basis test to a more narrow intermediate scrutiny test. The former is a standard used as a baseline “floor for equal protection” that requires only that the government shows that a statute is reasonably related to a government interest. The latter, however, requires a more narrowly tailored reason for the government to have passed a specific type of legislation. [5]

In another move that raised the standard by which sex-discrimination cases were reviewed, the Court made a similar ruling in the 1976 case Craig v. Boren. In this case, the plaintiffs challenged an Oklahoma law that prohibited the sale of 3.2% beer to males under the age of 21 and to females under the age of 18. The Court ruled that the law did, in fact, violate the Equal Protection Clause of the Fourteenth Amendment and reaffirmed the heightened intermediate scrutiny from which the case was analyzed. Since this articulation, a sex-based action by the government through statutes can only be upheld if it: outlines clearly the relevant and meaningful differences between men and women; and demonstrates sufficient governmental objectives to justify this differential treatment. [6] In looking at how the Supreme Court handles sex-discrimination cases, it becomes more apparent how important it is that menstrual equity lawsuits--even at state levels--be handled in a similar, objective manner.

Beyond New York and the United States Supreme Court case law, there has been much likewise movement towards menstrual equity when discussing international affairs. The fair and easy access to feminine hygiene products has been tied to a greater call for human rights and subsets of that including the right to be free of discrimination, the right of health, the right to education, and the right to dignity--all of which the United States subscribes to in their affiliation with the United Nations. The Universal Declaration of Human Rights adopted by the United Nations speaks to the right to be free of discrimination, as it notes that all are equal before the law and a violation of this principle would be in violation of the declaration. As for the right to health, Article 12 of the International Covenant on Economic, Social, and Cultural Rights makes notice of people’s rights to the highest standard of physical and mental health as attainable in their society. Finally, regarding the right to education that may be barred by lack of access to menstrual health products, the United Nations General Assembly adopted the Convention on the Rights of the Child treaty which ensures that children have access to education and are supported in this pursuit. The United States signed this treaty in 2016, but the Senate has yet to give its advice and consent. [7] Using these international agreements as a framework by which to approach the legalities of menstrual equity, the United States has been given direction and focus--albeit implicitly--by the global community to make feminine hygiene products much more accessible.

Coming back to New York State and the Seibert case, the future for American menstrual equity seems bright. Shortly after the complaint in the aforementioned case was filed, the New York legislature passed a statute that fully ended the tax on tampons and pads, marking a turning point for the issue. Signed by Governor Andrew Cuomo in 2016, this bill offers guidance for other states looking to move in the same direction, as 4 additional states--Connecticut, Florida, Illinois, and Nevada--have been successful in getting rid of the ‘tampon tax.’ With 35 states still taxing feminine hygiene products independent from medical exemptions, the fight over this infamous tax remains an uphill battle. [8] Taking shape in the form of activism, lobbying, legal battles, and so much more, work towards gender equality in America must remain a high priority if we ever want to see the national eradication of the infamous tampon tax.

Sources:

[1] "New York Residents File Suit to Eliminate the "Tampon Tax"." American Bar Association. March 29, 2016. Accessed February 24, 2019. https://www.americanbar.org/groups/litigation/committees/minority-trial-lawyer/practice/2016/ny-residents-file-suit-eliminate-tampon-tax/.

[2] "Tampon Tax." Free The Tampons. March 3, 2016. Accessed February 24, 2019. https://www.freethetampons.org/tampon-tax.html.

[3] Seibert v. New York State Department of Taxation and Finance (March 3, 2016)

[4] Ibid., 3.

[5] Hartman, Victoria. "End the Bloody Taxation: Seeing Red on the Unconstitutional Tax on Tampons." Review. Northwestern University Law Review, 2017, 313-53.

[6] "Craig v. Boren." Oyez. Accessed February 25th, 2019. https://www.oyez.org/cases/1976/75-628.

[7] Crawford, Bridget J. "Tampon Taxes, Discrimination, and Human Rights." Review. Pace Law Faculty Publications, 2017, 492-548.

[8] "Issues." Period Equity. Accessed February 24, 2019. https://www.periodequity.org/issues.