Law Commons^™

Menstruation In A Post-Dobbs World, Emily Gold Waldman, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In this Essay, we re-examine our 2022 book, Menstruation Matters: Challenging the Law's Silence on Periods, through multiple related lenses, including the human rights, sustainability, and workplace issues emphasized by our three reviewers; the COVID-19 pandemic; and the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. All of these perspectives converge on the inherent dignity and autonomy interests in being able to manage one's own body. Menstruation and related conditions like breastfeeding, pregnancy, and menopause should not be sources of shame or stigma. Nor should they be vectors of formal control by the government or de facto exclusion …

Title Ix And "Menstruation Or Related Conditions", Bridget J. Crawford, Emily Gold Waldman, Marcy L. Karin, Naomi R. Cahn, Elizabeth B. Cooper, Margaret E. Johnson

Elisabeth Haub School of Law Faculty Publications

Title IX of the Education Amendments Act of 1972 (“Title IX”) prohibits sex discrimination in educational programs or activities receiving federal financial assistance. Neither the statute nor its implementing regulations explicitly define “sex” to include discrimination on the basis of menstruation or related conditions such as perimenopause and menopause. This textual absence has caused confusion over whether Title IX must be interpreted to protect students and other community members from all types of sex-based discrimination. It also calls into question the law's ability to break down systemic sex-based barriers related to menstruation in educational spaces. Absent an interpretation that there …

Period Poverty In A Pandemic: Harnessing Law To Achieve Menstrual Equity, Bridget J. Crawford, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Period poverty is not new, but it has become more visible during the COVID-19 crisis. Worldwide, menstruation has long caused marginalization and vulnerability for many. The pandemic has only amplified these conditions. This Article makes three claims. The first is descriptive, identifying four interrelated aspects of global period poverty that have gained new salience during the coronavirus pandemic: lack of access to affordable menstrual products; lack of access to other needed supplies and services for health and sanitation; lack of menstruation-related information and support from schools and health professionals; and menstrual stigma and shame. Using examples from multiple countries, the …

Compared To What? Menstruation, Pregnancy, And The Complexities Of Comparison, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

When crafting a sex discrimination argument, finding the right comparison can be crucial. Indeed, comparison-drawing has been a key strategy for advocates challenging the constitutionality of the tampon tax. In their 2016 lawsuit challenging New York’s tampon tax, the plaintiffs alleged that the New York State Department of Taxation and Finance had imposed a “double standard” when deciding which products would be considered tax-free medical items and which would not. Similar arguments were made in the subsequent challenge to Florida's tampon tax. In both cases, the arguments had powerful rhetorical force, helping to effectuate legislative repeal of the tampon taxes …

Menstruation And The Bar Exam: Unconstitutional Tampon Bans, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Some states have policies that prevent bar exam candidates from bringing their own menstrual products to the test. Via social media, awareness of these policies achieved new heights in the weeks leading up to the July 2020 bar exam. While states adopted different approaches to administering the bar exam during the COVID-19 pandemic, a small number of jurisdictions responded to public criticism by permitting test-takers to bring menstrual products with them to exams. Not all states have adopted permissive policies, however. This essay explains why outright bans on menstrual products at the bar exam likely are unconstitutional. So-called alternate policies, …

Title Ix & Menstruation, Margaret E. Johnson, Emily Gold Waldman, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

“Oh no. Could I borrow a tampon or pad?” These (or similar) words are familiar to almost everyone who has ever had a period. Even for adults, menstruation can at times be a challenge. For some schoolchildren, it can be an insurmountable obstacle to receiving an education. Students are subject to constant observation by classmates and teachers; they may not have autonomous access to a bathroom during the school day; or they may not be able to afford menstrual products. They may experience menstruation-related peer harassment, restrictive school policies, a lack of access to menstrual products, and inadequate menstruation-related education. …

The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld Esq., Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis.

This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal …

The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Thirty-five states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax--commonly called the “tampon tax”--represents an expense that girls and women must bear on top of the cost of biologically necessary items that they need in order to attend school, work, and otherwise participate in public life. This article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any disadvantageous …