Paul L. Caron

Tuesday, July 26, 2022

Crawford: The Bar Exam, Menstruation, And Unconstitutional Tampon Bans

Bridget J. Crawford (Pace; Google Scholar), Menstruation and the Bar Exam: Unconstitutional Tampon Bans, 40 Colum. J. Gender & L. 63 (2021):

Columbia Journal of Gender and the LawSome 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. While states adopted different approaches to administering the bar exam during the COVID-19 pandemic, a small number of jurisdictions responded to public criticism by permitting test-takers to bring menstrual products with them to exams. 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.

At a time when bar examiners are asking test-takers to sign liability waivers related to possible COVID-19 exposure, a focus on menstrual products may seem like a minor issue to some. But menstruation is a regular part of life for roughly half of all exam-takers. Failing to take menstruation into account in preparing lists of items permitted at the exam has practical consequences for menstruating bar candidates. To be sure, boards of bar examiners also need to look rigorously at their policies to address fairly all biologically-based needs, including those related to pregnancy and lactation, as well as candidates’ medication needs. There is ample anecdotal evidence to suggest that existing policies are not sufficiently expansive. Fairly accounting for the biological needs of test-takers during the bar exam exam is a cornerstone of a more inclusive legal profession. Increasing diversity in the bar increases public perception of fairness of the legal system itself. Given what is at stake, then, all jurisdictions should adopt a free-carry policy for menstrual products.

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