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Pace University

Elisabeth Haub School of Law Faculty Publications

Constitutional Law

Menstruation

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Full-Text Articles in Law

Menstruation In A Post-Dobbs World, Emily Gold Waldman, Bridget J. Crawford Jan 2023

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 Jan 2023

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 …


Compared To What? Menstruation, Pregnancy, And The Complexities Of Comparison, Emily Gold Waldman Jan 2021

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 Jan 2021

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, …


The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman Jan 2019

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 …