Taxing tampons isn't just unfair: It's unconstitutional

If the government were to require that only men or only women had to pay a tax of several hundred dollars a year solely because of their sex, that would be an unconstitutional denial of equal protection under the 14th Amendment. Yet that is exactly the effect of the so-called tampon tax.

Currently, residents of 35 states must pay sales tax on purchases of tampons and pads because they are not deemed necessities worthy of an exemption. And that’s in addition to the roughly $5 to $10 for these products that women have to shell out each month. States collectively profit upwards of $150 million a year from taxing menstrual products. In California alone, women pay $20 million annually.

Although many states considered creating tax exemptions this spring, only one permanent exemption was approved. Over the holiday weekend, Rhode Island Gov. Raimondo signed a new state budget, which included a provision approved by the Legislature to make menstrual products sales tax exempt starting in October.

The issue also became a matter of fiscal negotiations in California. Back in May, Gov. Gavin Newsom wrote the cost of implementing a tax exemption for menstrual products into his proposed budget. The catch: It would last only for the duration of the budget, for two years. That move was backed by the Legislature, which had been trying unsuccessfully to pass a permanent exemption into law since 2016. The governor signed the budget on June 27.

Temporary expenditure lines — subject to the whim of the state’s leadership — are not enough. The sales-tax-exempt status of menstrual products must be made permanent in California and adopted into law in every state.

The issue is gaining traction globally. Back in 2015, Canada eliminated its national goods and services tax on menstrual products. Similar exemptions have since passed in diverse nations and economies, including Australia, India, Malaysia and South Africa.

In the United States, where sales taxes are levied by each state, bills have been introduced in 32 legislatures since 2016 to exempt menstrual products from sales tax. Five succeeded: Connecticut, Florida, Illinois and New York passed laws. Additionally, citizens of Nevada approved a 2018 ballot measure to accomplish the same. Another 10 states don’t tax menstrual products — either because they collect no sales tax at all, or because they’re included under general exemption categories.

In 2019, tampon tax bills were introduced in 22 states with bipartisan and overwhelming public support. And yet, the legislative sessions ended with a dismal scorecard. In Tennessee, legislators added insult to injury: After a tampon tax bill died there this year, a subsequent budget surplus was used to eliminate a gun ammunition tax, enabling the state to save its “hunters and shooters $500,000 annually across the state,” as one state representative explained to his constituents.

As a matter of policy, compassion and common sense, most states explicitly exempt “necessities of life” from sales tax, with food and medicine at the top of the list. In some states, necessity exemptions include things such as bingo supplies, cotton candy, erectile dysfunction pills, gun club memberships and tattoos. Menstrual products certainly rank as a necessity for most women, for much of their lives. They are essential for attending school, working and functioning in society.

But as a matter of law, the argument extends far deeper. The tampon tax amounts to sex-based discrimination in violation of the equal protection clause, both under state and federal constitutions — making it more than merely inequitable, but unconstitutional and therefore illegal.

In 2016, five plaintiffs brought a class-action lawsuit against the New York State Department of Taxation making these arguments. The case was withdrawn after the Legislature and Gov. Andrew Cuomo quickly responded to public outcry and passed legislation.

But the central argument advanced in that case is valid, and it is one increasingly being made by legal scholars. It should be raised again in the courts. A law that affects only one sex — or one race, or one religion — is inherently discriminatory. U.S. Supreme Court Justice Antonin Scalia once famously remarked that a tax on yarmulkes is a tax on Jews (interestingly, in a case about abortion clinic blockades). In the same vein, a tax on a product used only by women, and used by all (or the vast majority of) women for much of their lives, is a tax on women.

At the very least, equal protection requires that all actions that treat some differently from others have a rational basis. There is no reasonable justification to tax menstrual products given the exemptions that exist in every state for the necessities (and even non-necessities) of life.

Eliminating the discriminatory tampon tax isn’t a legislative nicety or a budgetary option. It is a legal mandate. Period.

Erwin Chemerinsky is dean of the UC Berkeley School of Law. Jennifer Weiss-Wolf is co-founder of Period Equity and the author of “Periods Gone Public: Taking a Stand for Menstrual Equity.”