Repealing the Tampon Tax is Just the Beginning

A new issue brief from the ACLU and Period Equity provides an overview of the issue of menstrual equity in the U.S.This brief is part of a broader effort from the ACLU and Period Equity to advance menstrual equity legislation, and in this exclusive piece they sound off on why it’s time to act.

Last week, Ohio Governor John DeWine signed bipartisan legislation to exempt menstrual products from sales tax—joining the ranks of now 17 states that have scrapped the so-called “tampon tax.” But eliminating the tampon tax is not enough.

We must ensure that all people have equitable access to menstrual products—whether access is out of reach because of poverty, homelessness or incarceration.

(Becker1999 / Creative Commons)

Menstrual equity is a relatively new term, coined in 2016 by advocate and attorney Jennifer Weiss-Wolf. As she explains in her foundational book Periods Gone Public: Taking a Stand for Menstrual Equity: “[i]n order to have a fully equitable and participatory society, we must have laws and policies that ensure menstrual products are safe and affordable for everyone who needs them.” 

The concept of menstrual access was not new in 2016, of course. Activists around the world have fought for safe, affordable and high-quality menstrual products for decades. But in the United States, the phrase and frame “menstrual equity” did something that was indeed novel: put the issue in the context of democratic participation, civic engagement and equal opportunity—and turn it into a winning and bipartisan policy agenda.

The fight against the tampon tax is but one example: the Ohio law exempting menstrual products was co-sponsored by a republican and a democrat and signed by a republican governor. 

The fight to provide access to menstrual products to incarcerated people has likewise found allies on both sides of the aisle. Before 2016, not a single state had a law requiring institutions of incarceration to provide menstrual products to the people they incarcerated. This legal vacuum caused serious problems that were often ignored by the outside world: correctional officers have forced incarcerated people to have sex in exchange for menstrual products, to sleep in bloody clothes without access to a shower or underwear and to choose between menstrual products and other necessary hygiene items. 

Today, 12 states, the District of Columbia and the federal government have laws requiring the provision of menstrual products to incarcerated people. These laws have not ended the humiliation or abuse that suffered at the hands of officers, but they do remove a tool from those officers’ arsenals. They also provide a sense of security to people who would otherwise be unable to afford to pay for menstrual products and might risk health problems or humiliation otherwise.

Still, more public awareness and legislative advocacy is needed to ensure that all people—especially those who are incarcerated, those who live in poverty, those who have the least agency—have access to necessary menstrual products. Only four states have laws requiring the provision of menstrual products to public school students. Thirty-three still impose a sales tax on menstrual products. State-funded homeless shelters aren’t afforded budgets to provide menstrual products to all people who need them, including transgender men and nonbinary people who may not want to use or feel safe at women’s facilities. 

All of these public facilities should provide free menstrual products. And accountability measures are necessary to ensure that once laws are passed, they are actually implemented and followed, especially in institutions of incarceration where the people impacted by those laws have few rights or recourses outside the system itself. 

To that end, the ACLU and Period Equity are excited to join forces and announce the publication of a briefing paper on menstrual equity. The briefing paper provides an overview of the current state of menstrual product access for people who are living in poverty, homeless or incarcerated; documents the damaging medical and emotional consequences of inequitable access; reviews current law; and finally, includes recommendations for improving menstrual equity in the U.S. 

It is part of a forthcoming legislative toolkit to advance menstrual equity. It will contain model legislative and policy language; messaging materials, including talking points and responses to common arguments; advocacy materials, including a Tampon Tax Primer, model legislative letter, sample op-eds, a briefing paper on menstrual equity and an explanation on “how to respond to viral moments”; and finally, an interview with an advocate who helped pass menstrual equity legislation in Maryland. 

The topics covered by the toolkit encompass the specific areas in which both media and legislators have responded favorably and are important to advancing menstrual equity. Much more can still be done. We hope that advocates will work creatively with impacted people in their states to design legislation and campaigns that respond to what is most urgent and achievable right now. 

Both of our organizations look forward to working with activists and advocates to advance menstrual equity in the years to come. 


Lauren Kuhlik is an Equal Justice Works fellow with the ACLU’s National Prison Project in Washington, D.C. Her work focuses on litigation and non-litigation advocacy on behalf of pregnant people who are incarcerated.