Bleeding Women Dry: Tampon Taxes and Menstrual Inequity

By Ooi, Jorene | Northwestern University Law Review, January 1, 2018 | Go to article overview

Bleeding Women Dry: Tampon Taxes and Menstrual Inequity


Ooi, Jorene, Northwestern University Law Review


Fluid-like that other, inside/outside of philosophical discourse-is, by nature, unstable. Unless it is subordinated to geometrism, or (?) idealized.

Woman never speaks the same way. What she emits is flowing, fluctuating. Blurring. And she is not listened to, unless proper meaning (meaning of the proper) is lost. . . .

"And there you have it, Gentlemen, that is why your daughters are dumb."

-Luce Irigaray'

Introduction

In 2016, a wave of feminist activism focusing on the burdens of menstruation swept the world. The aim of the movement was simple: repeal the tampon tax, a sales tax imposed on tampons and other menstrual hygiene products. Time Magazine proclaimed 2016 the "Year of the Period,"1 and a New York Times editorial headline blared, "End the Tampon Tax."2 In Europe, feminist campaigners pressed the European Commission to scrap imposition of the Value-Added Tax (VAT) on tampons.3 Meanwhile, in the United States, petitions like No Tax on Tampons: Stop Taxing Our Periods! Period., started by Jennifer Weiss-Wolf of the Brennan Center for Justice at New York University along with Cosmopolitan Magazine, gained momentum. That petition has gathered over 71,000 signatures as of June 2018.4

That the tampon tax movement has gained the attention of a women's magazine more known for its focus on fashion and beauty than on political and feminist issues only illustrates how the movement has pervaded mainstream consciousness. Professors Bridget Crawford and Carla Spivack offer four reasons why the tampon tax has attracted global attention, one of which particularly highlights the intersection of tax and feminism: "the ability to describe the effects of gender discrimination in simple financial terms that every woman (and man) can understand."5 This Note is situated in this tax-feminism intersection; it will harness tax law and illustrate critical tax theory's "fundamental assumption" that "[t]ax law is political"6 to further feminist goals such as equal treatment, encouraging women's market work, and assistance to caregivers.7 The result is an argument for the repeal of the tampon tax and the institution of a women's health credit in the United States.

The tampon tax is a consumption tax, administered in the form of a sales tax in the United States-or a VAT elsewhere.8 Thus, the term "tampon tax" may be misleading, as there is no tax targeted specifically at tampons and other feminine hygiene products. Rather, these items are simply part of the sales tax tax base. Nevertheless, most, if not all, tax codes contain exemptions for certain necessary items, such as groceries or clothing.9 Since menstruation is not optional, and items like Viagra or even candy are exempt, tampons should be considered necessities and not taxed.10 So the feminist argument goes.

In response to campaigns against the tampon tax,11 countries and states have started taking steps to repeal the tax. For example, prior to its vote to exit the European Union (EU), the United Kingdom (UK) pushed to change EU rules that impose a minimum of five percent tax on menstrual hygiene products.12 In early 2016, EU leaders signaled support for member states to scrap the VAT on tampons,13 but by mid-2016, the EU parliament had voted against such proposals.14 Thus, EU countries continue to impose taxes on tampons ranging from five percent to over twenty percent,15 as the UK continues to press for reform by tacking tampons onto a pending EU proposal to lower VAT rates on e-books and digital publications.16

There has been some progress in the United States toward the repeal of the tampon tax. Reform has mostly happened at the state and local level because sales taxes are imposed either by states at the state level or by municipalities. Since 2016, New York,17 Illinois,18 Connecticut,19 and Florida20 have passed legislation to provide sales tax exemptions for tampon purchases. Cities like Chicago21 and Washington, D.C.22 have also done the same, and New York City went even further by funding the provision of menstrual hygiene products in homeless shelters and public schools. …

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