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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, September 19, 2017

Crawford & Spivack: Tampon Taxes, Discrimination and Human Rights

Bridget J. Crawford (Pace) & Carla Spivack (Oklahoma City), Tampon Taxes, Discrimination and Human Rights, 2017 Wis. L. Rev. 491:

In recent months, activists around the globe have harnessed the power of the Internet to raise awareness of the so-called “tampon tax,” an umbrella term to describe sales, VAT and similar “luxury” taxes imposed on menstrual hygiene products. In response to pressure from constituents, five U.S. states and Canada have repealed their tampon tax. Active campaigns are underway in Australia, the United Kingdom and several other countries. Where public pressure has not been an effective technique, those seeking to challenge the tampon tax in the United States have turned to litigation. In four U.S. states, class action lawsuits have been filed seeking repeal of the tax and a refund for back taxes paid, alleging equal protection violations. In the international context, human rights law provides a promising foundation for similar legal challenges to the tampon tax because human rights law takes a capacious approach to gender equality. In the European Court of Human Rights, for example, there are several tax cases that recognize gender-differentiated taxes as a form of impermissible discrimination. This Article explains how the tampon tax violates equal protection and human rights norms. The tax also shows how deeply embedded gender is in matters of tax policy. Full realization of gender equality will require revision of tax laws.

Girls and women use tampons and sanitary napkins for multiple days every month for at least 30 years because of their biology. At first glance, the tampon tax might appear to be the result of a misclassification of menstrual hygiene products as luxuries, while items like Rogaine and condoms, for example, generally avoid taxation. But these comparisons are inapt, as it is difficult to find a precise male analog to the menstrual hygiene products that women use. Nor is it adequate to explain the existence of the tampon tax as the product of women’s historic absence from the legislature. This explanation is both simplistic and incomplete. Women’s bodies in general and menstruation in particular have been and continue to be the source of great cultural (and legal) unease. Women’s (involuntary) bleeding is meant to happen “out of sight, out of mind,” whereas men’s (voluntary) bleeding in war is meant to be celebrated.

Part I of this Article provides an overview of the sales and similar taxes on menstrual hygiene products. Part II explains why, as a cultural matter, the tampon tax has gone unnoticed. Part III situates consideration of the tampon tax in the context of international human rights. Part IV explores current legal challenges to the tampon tax in the United States and outlines a possible human rights challenge to the tax in Europe. The Article concludes with a discussion of why the tampon tax has become a global issue and why the tax law provides a unique lens for examining issues of gender inequality.

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