Australia removed the Goods and Services Tax (GST) from menstrual products from 1 January 2019. Most feminists and menstrual rights activists regard this as an unequivocal success.
I was one of a handful of feminist tax scholars who were either unmoved by, or opposed to, the campaign to remove the GST from menstrual products. This issue at best seemed marginal in the overall scheme of taxation and distributive justice including for women, and at worst risked contributing to the white-anting of the tax system which ultimately favours narrow, sectional interests.
However, I wondered if my ambivalence was a product of my own capture to a certain normative appeal in public finance theory, which prescribes that it is generally better to tax on a broad base rather than address political and other concerns through exclusions to that base. My recent journal article is a product of this ambivalence.
The campaign in context
Prior to the GST, the Wholesale Sales Tax (WST) exempted menstrual products firstly as items of clothing from 1950 and then as health and hygiene products from 1992.
The Howard Government initially proposed the GST at a single rate of 10% on a broad base including menstrual products because it sought to expand the sales tax base and avoid the definitional disputes and lobbying for special treatment that beset the WST. However, certain health, medical and other supplies were excluded from the GST and the Government was ultimately forced to exclude basic food to secure its passage through parliament. Beyond this, the Government remained steadfast in opposing further exclusions to avoid opening the floodgates for exclusions.
The Australian campaign to remove the GST from menstrual products was undoubtedly buoyed by other similar campaigns elsewhere such as in the United Kingdom, various American states, Canada, Kenya and Rwanda. Here (and often elsewhere) a young woman realised that sales taxes apply to tampons, outraged she starts an online petition and then lampoons the Commonwealth Treasurer on national television and he agrees to look into it, which ultimately results in the removal of the tax from menstrual products.
The arguments in support of and against
The main theoretical basis for the removal of the tampon tax is that such taxes are inherently discriminatory with the strongest articulation being that: Only women menstruate, therefore any tax on this essential function is inherently discriminatory. (It is acknowledged that “women are not the only menstruators and not all women menstruate”.)
However, a sales tax on menstrual products is not a tax on menstruation per se but rather expenditure on menstrual products sold in a marketplace. While menstruation is undoubtedly an essential function, the expenditure of money in a marketplace where commercial suppliers sell such products to consumers to assist in its management is conventional. It is difficult to say that such market-based transactions are not properly the subject of a state’s taxing power.
Once we highlight that market transactions mediate complex political, economic and social interactions then arguments based on the inviolability of certain pre-existing or essential functions are not as simple as their initial intuitive appeal. Even assuming that women are the primary economic beneficiaries of the GST repeal, if menstrual products are essential and akin to a basic right then why leave their provision to the vagaries of marketplace, why not provide them or fund them publicly? It is on this point that sympathetic feminist critics of the tampon tax campaigns contend that it is costly and inefficient to attempt to achieve a social aim (of increasing access to menstrual products) through introducing another exclusion to the GST base and that it is better to tax broadly and spend directly to fund universal access to menstrual products.
However, in a second-best system in which the real GST already has exclusions to the base including in ways which ostensibly benefit men over women as the condom example so effectively showed – such a line is difficult to prosecute. For example, why does the extension of a long list of exemptions to menstrual products provide the tipping point for opening the floodgates? In Australia, such floodgate concerns have not been borne out. Why is it necessary to fund an essential product or service primarily for women by a tax borne primarily by them when other essential services are funded through general revenue?
However, the normative objection does have further consequences.
An assessment
Most operate on a narrow (optimistic) view that the tampon tax campaign was an unequivocal success – an unjust tax was removed from a class of product purchased almost exclusively by (or for) women at a minimal cost to revenue and in the process brought attention to women’s bodies, women’s rights and menstrual rights.
On a broader and less optimistic measure, critical menstrual law scholars Linda Steele and Beth Goldblatt contend that relevant factors by which we should assess menstrual law reform include: that reform should neither reinforce menstrual stigma nor provide superficial responses that leave structural injustices intact.
On the first measure, simply removing the GST from menstrual products is not automatically destigmatising. The claimed benefits of the GST’s removal seem to assume that the tax was itself stigmatising, when stigma is the product of numerous forces, none of which are necessarily overcome by removing the tax. We see this in the language of the Woolworths’ tampon tax removal submission, which perpetuates rather than challenges the social stigma of menstruation in (unsuccessfully) arguing for extending the exclusion to a range of other ‘feminine hygiene products’ (itself a stigmatising term implying notions of femininity and uncleanliness) including vaginal washes, wipes, powders and deodorants on the (highly stigmatising) basis that they ‘eliminate odours and promote freshness in the vaginal area’.
On the second measure, the narrow liberal concern of equal treatment on a single issue – the removal of the GST from menstrual products – leaves the underlying political and economic structures that subordinate women mostly unchallenged. So government ministers can declare that ‘millions of women right across the nation will be very thankful for’ the removal of the GST on menstrual products while overlooking or perpetuating the ‘structural causes’ of women’s subordination in the economic and political system which include tax and transfer provisions which penalise women with caring responsibilities when returning to work with effective tax rates of up to 64%.
Perhaps most controversially, I argue that the tampon tax campaign risks magnifying structural injustices because it adopts the same playbook as anti-tax campaigners – that taxation is an unlawful interference with pre-existing or inviolable rights. For the tampon tax campaign, the claim is based on biology. For the rich and powerful, it is based on the inviolability of economic or property rights.
While an alliance with anti-tax campaigners on one fleeting issue of mutual self-interest might be beneficial for that particular issue, it is done at the risk of eroding support for the types of collective action needed for women’s economic emancipation be it through funding universal access to high quality public education and health (including the public provision of menstrual products), all of which are undermined by the white-anting of the tax system needed to fund these measures. As Asa Gunarrson contends, the concessional treatment of capital gains, trusts and corporate income should all properly be the subject of feminist advocacy because they primarily benefit a narrow elite of primarily rich-, white-, cis-gender men.
In this sense, the victory might be pyrrhic or ideological because it risks reinforcing rather than eliminating the inequalities of a system which ultimately disadvantage women and other marginalised groups. If the tampon tax campaign is to be the basis for building rather than undermining the foundations for collective action to address the subordination of women and other marginalised groups in our tax and transfer and system, it should be accompanied by a less celebratory and more frank account of not just the benefits but the costs of the campaign.
Onya Kathryn!