For thousands of law school graduates, July marks a perennial rite of passage: studying and sitting for the bar examination. Administered in each state, alongside a standardized multistate component, a passing score is required to practice law in the United States.
This year the stakes—and the stress—are sky-high. Across the country, the pandemic has upended traditional protocols. Social distancing means that states cannot administer the exam simultaneously to 2,000+ exam takers in an enclosed room over two or three full-day sessions, as was the case in past years.
In the face of these challenges, many states have opted to postpone, cancel or move the exam online—though twenty-three are forging ahead with the traditional in-person format.
If the prospect of taking a major professional licensing exam under these circumstances wasn’t challenging enough, an announcement surfaced last week on Twitter explaining that, in Arizona, menstruating test takers would be forbidden from bringing their own tampons or pads into the exam.
Tracking Bar Exam Menstrual Policies, State by State
While outrage on social media led to a quick reversal—check out #bloodybarpocalypse—a team of law professors and students is now tracking bar exam menstrual policies from state to state.
They submitted this letter, signed by nearly 3,000 lawyers, law professors and recent graduates, to the National Conference of Bar Examiners demanding a clear, consistent statement that authorizes people to carry and use their own menstrual products while taking the exam in every state. It argues:
Without doubt, many people taking bar exams in the coming months—women, transgender men and nonbinary persons—will be menstruating. It is critical that they have access to their own menstrual products during the exam as opposed to only unknown and likely uniform products that are provided by a state board in a restroom. …
The importance of unencumbered access to personal menstrual products during the in-person exam is critical for persons who menstruate.
Though more likely an example of ignorance rather than malice, policies like this are exactly how period stigma seeps into daily life. Really, what other purpose does a ban serve? It does little to guard against cheating, nor does it enhance testing security. (Find me anyone who ever succeeded in transcribing the Rule Against Perpetuities into a tampon wrapper or etched it onto a maxi-pad.)
As the letter explains, “Absent any indication that menstrual products have been used to compromise the integrity of the bar examination, targeting only people who menstruate sends a strong—and problematic—message that [they] are untrustworthy.”
The practical problems for test takers should not be minimized. Although exam sites will provide menstrual products, what if the site runs out? Or if waiting to locate or obtain them causes precious minutes to be wasted? Will there be additional hurdles to access for those who are trans or nonbinary or otherwise unable to use the women’s restroom? Is it really safe for tampons to be offered in a communal basket, touched by many?
As for menstrual products themselves, tampons and pads are not one-size-fits-all. What if the ones provided are too small, too big, too chemically-laden?
This is not simply a matter of “Princess and the Pea”-style preference or ease—thin pads leak or require frequent changing, tampons that are ill-fitting may be painful, scented products can cause irritation or allergic reaction—though one’s personal comfort is not an unreasonable demand during the bar exam, in any case.
There are potentially serious health issues at risk, too, from infection to increased susceptibility to toxic shock syndrome.
The sign-on letter also flags the lack of clarity about whether usage of a menstrual cup is prohibited, since that would entail removing, rinsing and reinserting it at least once over the course of a full day. Would anyone want to take the risk the period police might deem this a violation?
Achieving Menstrual Equity
As a matter of broad national policy, advocates nationwide have achieved much progress ensuring access to menstrual products in schools. In recent years, five states have passed laws requiring as much—California, Georgia, Illinois, New Hampshire and New York—as have major municipalities like New York City and Boston.
Had the bar examiners simply made tampons and pads available at testing sites, it would have been heralded as a welcome move. But the prohibition against bringing one’s own products creates an unnecessary distraction, at best, and potentially undermines the physical health and performance of anyone who happens to be menstruating on exam day.
I vividly remember all the stress surrounding the bar (which I took way back in July 1992). Today much of my work focuses squarely on menstruation through the nonprofit I cofounded, Period Equity. I’m proud to be part of a global cohort of activists, academics and innovators seeking to leverage the tools of law and policy to eradicate period stigma and the devastation it wreaks—ranging from social isolation to economic inequality, and from health disparity to death.
We’ve grown a robust political movement here in the U.S. Dubbed the fight for menstrual equity, our advocacy is centered on a series of common-sense reforms. Among those that have won bipartisan support in many states and federally: availability of affordable and tax-free period products; free access to the same for those who are incarcerated or detained; and accurate information and transparency in product labelling.
Most recently, when Congress passed and the president signed the Coronavirus Aid, Relief and Economic Securities (CARES) Act in March, a long-sought reform was ushered in with it—the classification of menstrual products as qualified medical expenses under the IRS tax code, thereby making them eligible for purchase by individuals using pre-tax dollars they’ve contributed to health savings and flexible spending accounts.
As a matter of case law, though, menstruation remains all but invisible in American jurisprudence. This is true across myriad critical disciplines— including education, workplace, disability, criminal justice and taxation law. The legal academy is catching on, with a growing cadre of law review articles, policy clinics and symposia dedicated to the topic.
Next up will surely be the courts—to address the unconstitutional ‘tampon tax’ or to decide whether Title IX offers protection from discrimination on account of menstruation.
Now that periods have become part of the 2020 bar exam legacy, let’s consider it a clarion call to all the new lawyers-to-be.
Good luck next week—stay safe and be smart. And when you’re admitted to the bar next year, please lend your skills and savvy to the legal fight for menstrual equity—on exam day and every day.
