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Thank you, Australia, for showing the rest of the world how it is done.

With the state and territorial governments’ agreement to repeal the “tampon tax” – the goods and services tax (GST) on menstrual hygiene products – Australia joins Kenya, Canada, and India as countries that have eliminated this unfair tax.

In some countries, tampons and pads have long been tax-free. Ireland’s tax exemption for menstrual hygiene products, for example, predates EU legislation mandating minimum tax levels. In Jamaica, Lebanon, Nicaragua, Lebanon, and Tanzania, these products have never been subject to the GST. But in many countries across the European Union, as well as much of Asia, Africa and the Americas, some form of tampon tax remains.

The US system

In most of the United States, there still is a tax on menstrual hygiene products. That tax system operates slightly differently than Australia’s. In the US, there is no national GST. Instead, each of the fifty states decides whether to impose a tax on the sale of goods, what goods will be subject to the tax, and what the rate of taxation will be.

Five states – Alaska, Delaware, New Hampshire, Montana and Oregon – have no sales tax at all. Five states – Maryland, Massachusetts, Minnesota, New Jersey and Pennsylvania – have a sales tax, but exempt menstrual hygiene products from taxation. In 2015, attorney and activist Jennifer Weiss-Wolf began a US-based internet petition No Tax on Tampons: Stop Taxing Our Periods! Period (a sort of American cousin of similar campaigns in Canada and Australia) that was cosponsored by the popular women’s magazine Cosmopolitan. Because of increased public awareness and pressure, five states – Connecticut, Florida, Illinois, Nevada and New York – and the District of Columbia repealed their taxes on menstrual hygiene products. That leaves thirty-five states where customers must pay tax on tampons and pads.

Several US states are expected to consider repealing their sales tax on menstrual hygiene products in the current or upcoming legislative sessions. Indeed, legislative repeal is most expedient way to accomplish change. But if lawmakers refuse to take up the issue, litigation likely will ensue. It is the United States, after all – one of the most litigious countries in the world. In 2016, in New York, Florida, Ohio and California, plaintiffs filed class actions alleging that the respective state’s sales taxes on menstrual hygiene products was unconstitutional. (Read an interview with the attorney for the New York plaintiffs here.) The New York and Florida cases were voluntarily withdrawn when the state prospectively repealed its tampon tax; the California case was dismissed on procedural grounds; the Ohio case is pending appeal.

A form of gender discrimination

In a forthcoming article in the University of Richmond Law Review, Professor Emily Gold Waldman and I explore the legal claim that the sales tax on menstrual hygiene products is a form of gender discrimination.

As in Australia, in the United States, there is a federal Constitution and each state has its own constitution. Under the Fourteenth Amendment to the United States Constitution and its state-constitution counterparts, the government may not deny to any person the “equal protection of the laws.” On the federal level, the Equal Protection Clause was found by the Supreme Court of the United States to prohibit racially segregated public schools (such as in Brown v. Board of Education, decided in 1954). The Court ruled in 1976 in Craig v. Boren that sex-based classifications must be substantially related to an important governmental purpose.

Consider how equal protection claims might apply to the state sales tax imposed by thirty-five states in the US on menstrual hygiene products. Every one of these tax statutes is gender-neutral on its face. Sales tax is imposed on all of these products, regardless of the gender of the purchaser. But Professor Waldman and I argue that the sales tax on tampons and pads is, effectively, a tax on women. Because it violates both the federal and the state constitutions, the tampon tax should be repealed in all jurisdictions.

Menstruation is a fact of life for most women’s lives for almost 40 years. The average woman spends roughly 6.25 years of her life menstruating. Menstruation happens only to women (or those who have certain anatomical factors associated with women). Given that the closest analogous products associated with men – such as erectile dysfunction drugs – or gender-neutral products – such as bandages or gauze – are exempt from state sales taxation, the failure to extend a tax exemption to menstrual hygiene products is a form of gender discrimination.

The significance of salience

The taxation of menstrual hygiene products probably is not the result of a small group of men talking in a back room about how to make women’s lives more difficult in service of filling the state’s tax coffers. After all, in California, to give just one example, the state collects an estimated $20 million a year in sales tax on menstrual hygiene products. This represents less than 0.001% of the entire California state budget. So, the tampon tax is not a significant source of revenue for the state.

The reason that menstrual hygiene products are taxed is because for too long, women’s bodily functions have not been considered proper subjects for many public conversations. The general cultural aversion to talking about menstruation, which Professor Carla Spivack and I trace here through religious traditions and literature, has contributed to the non-salience of the tax. The public has become aware of the tax only through internet-based publicity and traditional demonstrations – some of the largest and most dramatic of which took place in Australia and received international press. Once most people learn about the tax, they consider it a demonstrably unfair tax imposed on girls and women because of their biology.

Not just economic, but also symbolic effects

To be sure, most tax scholars would say that tax reform should not be accomplished by chipping away at the tax base. Instead, some of the brightest tax minds in Australia and elsewhere suggest that reformers interested in gender equality should be focused on broadening the tax base in order to fund services for those in need.

Generally speaking, I agree with this approach. But where I part company from the traditional tax analysis is at a tax imposed on products needed by half the population for most of their lives in order to attend school, go to work, and to participate in public life. Tax has more than just economic effects; it has a symbolic impact as well. By deciding to make particular items subject to or exempt from taxation, a society signals its values. A society that values the contributions of all its members, regardless of sex, will follow Australia’s lead and abolish the tampon tax.

 

Further reading: Crawford, Bridget J. and Waldman, Emily Gold, ‘The Unconstitutional Tampon Tax’, University of Richmond Law Review, forthcoming; and Crawford, Bridget J. and Spivack, Carla, ‘Tampon Taxes, Discrimination and Human Rights’, 2017 Wisconsin Law Review 491.

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This article has 1 comment

  1. Am I the only woman who thinks this was a bad tax policy move for Australia?

    I disagree with the assertion that “The reason that menstrual hygiene products are taxed is because for too long, women’s bodily functions have not been considered proper subjects for many public conversations.” On the contrary, I would hazard a guess that that is the reason why our politicians decided to cave in and remove the tax: too many of them were uncomfortable being asked about it and it was easier just to do away with the social media blizzard that try to explain how a broad-based consumption tax works.

    Rather than removing the tax on tampons, we should have considered increasing its scope and narrowing the range of GST-free products. Australia’s GST was at least intended to be broad-based – it is not an excise tax on luxuries – and it is perfectly in keeping with that design that all expenditure is taxed. A 1/11th reduction in price (if it is passed on – and IMF studies show that the benefits of rate changes are usually only temporarily passed on) will not make sufficient difference to help women who cannot buy tampons. It will, however, give a tax benefit to a wealthy woman and no benefit to men living in poverty.

    That women disproportionately bear the burden of the tax through a combination of lower incomes, higher levels of poverty, pink pricing, and the need to purchase items such as feminine hygiene products is an issue that cannot be solved by a token act such as the removal of GST.

    If there is a case to be made for public subsidisation of tampons and feminine hygiene products – and I think there is – the GST law was not the best place to look. Far better to provide them for free. Start by mandating that all places where public toilets are required should also provide free tampons and pads. Require them to be provided for free in workplace bathrooms, in cinemas and shopping centres, in train stations and airports, in schools and Universities. Invent whatever technology is needed to stop people taking more than their fair share but view them as no different from the toilet paper, water, soap, and hand towels that we receive for free in these locations. Subsidise them for women on benefits. But keep collecting the tax when those who can afford to pay for them do so.

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