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String theory: Scotland’s free tampon legislation highlights a policy revolution

Photo by Josefin of Unsplash

Echoes of shattered glass will be heard around the United States when Vice President-elect Kamala Harris takes her oath later this month and officially steps into office as the first female vice president in American history. At the same time, the burdens of thousands of American girls and women will largely go unheard, because the financial problems and social stigmas of period poverty are still unchanged.

Period poverty is a quiet, embarrassing problem in the U.S., defined as the lack of access to menstrual products. It affects adolescent girls, women in prison and those at home and at work, interfering with jobs, education and more. In some parts of the world, the problem looms larger. The issue is one VP-elect Harris has touched on and hopes to improve.

“One in four teens have missed class because of lack of access to period products,” Harris tweeted on the first-ever National Period Day on Oct. 19, 2019. “That’s wrong. It’s time we end the stigma and ensure everyone, no matter their income, can reach their full potential—period or not.”

Harris’ tweet underscores a rising tide of policy campaigns aimed at eliminating period poverty, and recent changes across the world give hope to those working toward the cause.

Free products in Scotland

Beyond the U.S., progress for women was made elsewhere in 2020 when Scotland made history by becoming the first nation in the world to effectively approve free period products by mandating access to women in need. The legislation was approved unanimously and requires these products to be available for free in public places. It’s a far cry from the reality of the U.S., where a majority of states still place a luxury tax on period products, making them more expensive.

Scotland’s new law has three core provisions to make good on its promise:

  • First, it mandates all schools and universities provide free menstrual products to those in need.

  • Second, the government can require other government entities to provide free menstrual products.

  • And third, those in need of menstrual products can make an individual request for using some specified means—either a card, voucher or some other method—to access products at a grocery store or any other place where they can get their products safely.

“The third piece is probably the most creative and the most innovative,” Jennifer Weiss-Wolf, vice president for development at the Brennan Center for Justice and co-founder of Period Equity, told The Whipp. “It acknowledges others outside of those who interface with public facilities and schools—a person trapped in a domestic violence situation or a transgender non-binary individual who unsafe in accessing these products. This law enables the government to intervene.”

The Scottish bill has ignited more advocacy and broader conversations across the pond here in the U.S. Its approval marks a new era for period poverty, shifting the financial burden from girls and women to the public and declaring period products essential items worth paying for as a society. But what is the likelihood of similar legislation passing in America?

In short, there is no chance.

“Scotland is a fairly small and homogenous country,” Weiss-Wolf told The Whipp. “Both in terms of the structure of government, the size and spread of the population—this type of legislation is not replicable here in the United States. It’s just not. Scotland is half the size of New York City alone.”

‘Menstrual equity’ advancements in the US

Weiss-Wolf champions Scotland’s legislation, but she makes it clear that federally-mandated, universal access to period products in the U.S. is highly unlikely. Still, there have been some small advancements at the federal level to providing access to menstrual products.

The First Step Act is a bipartisan criminal justice reform bill signed into law by President Trump in 2018, part of which allows incarcerated women in federal prisons to receive period products free of charge.

“That sounds like it would be a big deal, but federal prison is where the least amount of people and the least number of women are incarcerated,” Weiss-Wolf noted. “Women are incarcerated in much greater numbers in state prisons and in local jails. So far, only 13 states have passed laws to mandate menstrual products to women who are incarcerated.”

A second piece of menstrual legislation was part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, approved in March 2020. One provision changes the IRS tax code categorizing menstrual products as qualified medical expenses, allowing Americans to use their health savings account (HSA), flexible spending account (FSA) and health reimbursement arrangement (HRA) to purchase menstrual products tax-free. It’s unclear if this provision will continue past the COVID-19 pandemic.

Other federal legislative attempts for menstrual equality to provide funding and free––or tax-free––products to women in prisons, the workplace and elsewhere haven’t gone very far, though a number of bills have been introduced over the past few years.

States still tax menstrual products

While piecemeal developments at the federal level are being presented and sometimes implemented to provide access, the state level is where more work can be done.

To date, 30 states still tax menstrual products, including tampons and pads, under a luxury tax. Known as the “tampon tax,” critics have labeled it an “unfair and discriminatory economic burden.” By comparison, groceries, prescriptions and other necessities are not subjected to this tax. Women in the U.S. are also barred from using federal grocery assistance programs, including SNAP and WIC, to pay for menstrual products.

The U.S. is not alone when it comes to the tampon tax, but many countries are changing their laws. Germany designated period products as essential items in 2019. That same year, British Columbia became the first Canadian province to mandate free menstrual products in public schools. The U.K. also did away with the tampon tax on Jan. 1, 2021. Australia, Canada, India and Malaysia all have eliminated the tax, The New York Times reported. And Scotland, of course, now shines above the rest by mandating access to menstrual products for free.

“This is a basic human need,” Bhuchitra Singh, MD, MPH, research program manager in the Department of Gynecology and Obstetrics, Division of Reproductive Sciences and Women's Health Research at Johns Hopkins University Bloomberg School of Public Health in Baltimore, told The Whipp. “We definitely are not doing enough to provide menstrual product access to the population.”

Singh and colleagues presented research highlighting the impact of period poverty and menstrual product taxes among women of reproductive age at the 2020 American College of Obstetricians and Gynecologists Annual Clinical and Scientific Meeting.

The researchers analyzed the cost and state sales tax collected on a single type of menstrual product, revealing the financial burden of the luxury tax impacted marginalized low-income women and women with heavy menstrual bleeding. The lack of access to products, due to financial burdens, led to poor menstrual hygiene, decreased participation at work and other activities and contributed to poor quality of life. Their research also indicated a negative impact on educational experiences, including low attendance at school during menstruation.

“Women cannot buy menstrual products with food stamps or Medicaid, and the lack of menstrual product access leads to real disparity because women have to decide whether they want to buy food or have menstrual hygiene,” Singh said. “And this should not be a decision a U.S. citizen should have to make.”

Grassroots campaigns to eliminate ‘tampon tax’

It seems obvious that period products are not a luxury but a necessity, and therefore many find the tampon tax unfairly punitive and sexist. The outrage over this designation has grown over the past few years, pushing 10 states to eliminate the tax on menstrual products since 2016, thanks largely to grassroots efforts and organizations.

There is no federal oversight on state sales tax, so advocates of tampon tax elimination must work accordingly—state by state and, sometimes, community by community. Weiss-Wolf’s nonprofit group Period Equity­—a term she coined—has spearheaded advocacy and legal efforts to make period products tax free.

Her organization pressed charges against the state of New York over menstrual product taxes, calling the practice unconstitutional and a form of sex-based discrimination. Interestingly, the governor and the state legislature responded to their litigation, and New York passed legislation to end taxation on menstrual products in 2016. Period Equity is currently in litigation in Michigan, and the group is considering other ways to mandate menstrual equity policy.

Period Equity has launched a grassroots campaign, “Tax Free. Period.”, to sue states if they do not make period products tax-free by Tax Day 2021, leveraging pro bono attorneys, local advocates and law students around the nation.

“There’s clearly a very large emerging movement of people who are committed to this issue and that’s really exciting,” Weiss-Wolf said.

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