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Thursday, December 20, 2018

Bleeding Women Dry: Tampon Taxes And Menstrual Inequity

Jorene Ooi (J.D. 2018, Northwestern), Note. Bleeding Women Dry: Tampon Taxes and Menstrual Inequity, 113 Nw. U. L. Rev. 109 (2018):

In recent years, the problem of menstrual inequity has attracted increased attention. Most states impose a sales tax on menstrual hygiene products—a “tampon tax.” A burgeoning social movement has sought to end the tampon tax, and lawmakers have taken notice by introducing, and in some cases successfully passing, measures to repeal the tax by exempting menstrual hygiene products from the sales tax. This Note evaluates, from a tax policy standpoint, the pros and cons of repealing the tampon tax.

It argues that although repeal is usually undesirable as a matter of tax design, the tax should nevertheless be repealed both because menstrual hygiene products are necessities and because the tax is discriminatory. Building on this conclusion, this Note further argues for a women’s menstrual health credit, provided to all women of menstruating age, on the basis that a tax credit would better bridge the financial disparity gap between women who must pay for menstrual hygiene products and men who do not. Along the way, this Note also compares the proposed credit to other proposals to combat menstrual inequity, such as a free-tampons program and expanding welfare benefits to include tampons, concluding that the tax credit would create fewer administrative complexities, would reach more women overall, and is less stigmatizing.

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I might have chosen a different title

Posted by: Mike Livingston | Dec 20, 2018 7:08:29 AM

I am very disappointed in whoever advised on and edited this note. A fundamental objective of student note-writing is that the student gain an understanding of the subject matter of the note. That seemingly did not happen here. As the note only briefly and grudgingly acknowledges before continuing to use the term, there is no such thing as a “tampon tax”: there is no jurisdiction that imposes a tax specifically on tampons. The note suggests that tampons are specifically excluded from the various anti-regressive exemptions that sales taxes (and VATs abroad) provide, even going so far as to assert that the exclusion is “facially discriminatory,” but that also is not true. There is no general exception from the sales tax for basic necessities. There are a number of specific and delimited exemptions of this general class — food, clothing, medicine, residential utilities — and tampons are not exempt where they are not a part of any of the classes of items exempted.

For example, the note repeatedly returns to the point that candy is exempt, while tampons are not. This is because candy is food, and tampons are not. To suggest that such a distinction is facially discriminatory on the basis of gender is to fundamentally misunderstand both the term “facially discriminatory” and the nature of the distinction that the law is making. Tampons also are not clothing, medicine, or utilities. The commonly purchased basic necessities that are most analogous to tampons — toilet tissue, diapers and incontinence products, hair and skin care products, antiperspirants, toothbrushes and toothpaste, reproductive health products — do not qualify for exemption any more than tampons do. Pretty much anything you might buy on the same shopping trip with your tampons (other than candy) is probably subject to sales tax. The only “necessities” exemption that even arguably comes close to the subject of tampons is the exemption for medical products, but that exemption almost never extends to items that are used on a regular basis and that are not the subject of a medical prescription.

The author of the note should have been aware of these issues: indeed, the note cites several pieces in the popular press that make essentially these points. How is it then that the note never considers the impact of those points on the argument the note is advancing? There may well be space for some credible legal argument in support of a tampon exemption, but this note fails to get there because it does not acknowledge the fundamental structure of the existing law it is criticizing.

Posted by: Matt | Dec 20, 2018 8:12:24 AM