A legal fight to end the so-called “tampon tax”
If you’re a person with a period, you’ve likely experienced the feeling of realizing it’s that time of the month, but you don’t have what you need, whether it’s a pad or a pack of Midol. For some people, this is a common problem — not because they aren’t paying attention to the calendar, but because they can’t afford menstrual products. Being unprepared for your period can mean you miss work, school, or other essential activities, because of something specific to your biological makeup.
But there’s a growing state and national movement to address what’s called “period poverty.” Attorney Laura Strausfeld says one key step is removing the “tampon tax” — in Michigan, that’s the 6% sales and use tax that applies to menstrual products. Strausfeld, a cofounder of the nonprofit Period Equity, says the tampon tax violates the equal protection clause found in the 14th Amendment of the U.S. Constitution because it targets a bodily function associated with women.
Thirty states in the U.S. still have a tampon tax, Strausfeld says. That number used to be higher, but in the past few years, a number of states have eliminated taxes on menstrual products. In Michigan, lawmakers have introduced bills into the state Legislature in an effort to combat the tax for the past five years, but they haven’t yet been successful. Now, three women in Michigan, with support from Strausfeld and Period Equity, have filed Beggs v. Michigan, a class action lawsuit against the period tax.
Clare Pfeiffer, one of the plaintiffs in the case, volunteers with I Support the Girls Detroit, an organization that provides period necessities to people in Southeastern Michigan. She says that through her work with the group, she’s heard many accounts of people in the region who can’t afford period products.
“This is a basic health necessity. Tampons are not a luxury item in any way,” Pfeiffer said. “So the more stories I heard, and the more I got involved, when the opportunity came to use our voice this way to help remove this tax for women in Michigan, it felt like the right thing to do.”
Strausfeld says the issue first came to her attention when she was a law student in the state of New York, which had a tax on menstrual products until 2016.
“Probably because I had too little change in my pocket, I did notice that when I bought a box of tampons and some chapstick, I was paying tax on the tampons and not the chapstick. And I remember the clerk saying to me, ‘Well, the chapstick has a medical use,’” she said. “I went to look that up, as a law student, and realized immediately that this is not only unfair, but it's illegal, it's unconstitutional, it's sex-based discrimination.”
Strausfeld says the pandemic — which has negatively affected women’s finances, in particular — has exacerbated the problem of access to period products. She adds that period poverty disproportionately affects women of color.
Pfeiffer says I Support the Girls Detroit works with young girls who sometimes miss school when they get their period and don’t have access to menstrual products.
“They don't have the products they need at home or the school nurses don't have enough to hand out, which then puts young women in a position where they're not getting the full education they should have, you know?” she said. “If they're missing school to stay home for a period, that, to me, is an extra inequality.”
Pfeiffer says period products aren’t cheap, and people without uteruses don’t face the additional cost of using them each month.
The American Civil Liberties Union emphasizes that period poverty doesn’t only impact cisgender women. The organization notes that while places like women’s restrooms, shelters, or prisons often don’t provide enough access to menstrual products, transgender and nonbinary people in similar spaces may have even fewer options for accessing, using, and disposing of period necessities.
Strausfeld says the tampon tax is a sort of “accidental injustice” — it’s left over from a time when an even greater majority of state representatives weren’t people with periods. And although some politicians, like Michigan Governor Gretchen Whitmer, have discussed the tampon tax in recent years, Strausfeld says there’s still stigma around talking about menstruation.
“There was a period where maybe, even though it was really unfair — and for me, enraging — it was more understandable,” Strausfeld said. “At this point, with so much press and with the Michigan Legislature having considered this since 2016, it's not accidental anymore.”
Pfeiffer says she’s hopeful that the timing of the lawsuit could help lead to a shift on the tampon tax in Michigan.
“With the pandemic, and the knowledge that women have been disproportionately affected in their pocketbooks by the pandemic, this seems to me a great time for the state to make this change. It seems like we are really well placed,” she said.
This post was written by Stateside production assistant Nell Ovitt.