Education, Discrimination and Menstruation

Education, Discrimination and Menstruation
A young girl’s lawsuit—and her demand that menstruation be considered under Title IX of the Educational Amendments of 1972—has the potential to break new ground. (diane cordell / Flickr)

As debate rages on about whether and when students can return safely to school, one Texas pre-teen has been shut out all year—but not on account of coronavirus. A lawsuit was filed on behalf of an eleven-year-old with Down syndrome that challenges her expulsion from a federally-funded after-school program in Austin, Texas. Why? Because she began to menstruate.

The plaintiff in the case (identified only by her initials, C.S.) thrived at Stepping Stone School, where she learned and socialized with classmates and peers. Due to challenges with toileting, C.S. wears pull-ups and needs assistance in changing them—an accommodation required by a slate of laws. These include the Americans with Disabilities Act, which celebrated its thirtieth anniversary on July 26, as well as Section 504 of the Rehabilitation Act and state disability regulations. 

Staff readily met that obligation until administrators learned that C.S. had started her period. C.S. was expelled, effective immediately—informed she was no longer welcome due to burgeoning “privacy needs.” That was back in December. By the time the pandemic hit, the loss felt by C.S. and her family cut even deeper when the program went on to offer hard-to-find summer programming for her age group. 

Yes, this is what period shaming looks like. It is real, it is harmful and it exists in every corner of the world, including our own backyard. A global cohort of activists and innovators are working to eradicate that stigma and the devastation it wreaks—ranging from social exclusion to economic detriment, and from health disparity to death.

Here in the United States, this social and political movement has been dubbed the fight for menstrual equity.


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As a matter of public policy, advocates and lawmakers have mobilized around a series of common-sense proposals:

  • access to affordable and tax-free period products;
  • accurate, inclusive information and transparency in product labelling; and
  • the opportunity for safe, dignified self-care.

There has been rapid embrace of these reforms in the states and federally, with distinct bipartisan support. But we are far from a nationwide mandate.

Nearly half of U.S. states now legally require that pads and tampons be provided in certain designated public facilities, including shelters and detention and correction facilities; five have passed laws—New York, Illinois, Georgia, New Hampshire and California—to require menstrual product access in secondary schools. Twenty states and Washington, D.C. have scrapped the so-called tampon tax, making menstrual products sales tax-exempt just as other necessities are.

And when Congress passed the Coronavirus Aid, Relief, and Economic Securities (CARES) Act in March, a long-sought reform was ushered in with it—the classification of pads, tampons, menstrual cups and similar 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.

(Margaret Carmel / VCU Capital News Service)

As a matter of law, though, menstruation remains all but invisible in American jurisprudence and analysis. This is true across myriad critical disciplines—education, workplace, disability, criminal justice and taxation law, among them. That lack of recognition amounts to a violation of due process, a form of sex-based discrimination, or likely both.

Legal scholars agree: Constitutional law expert and Dean of U.C. Berkeley Law Erwin Chemerinsky has publicly argued the unconstitutionality of the tampon tax; the director of Columbia Law School’s Center for Gender and Sexuality Law, Katherine Franke, told The New York Times that leveraging legal claims around menstruation is a necessary step to “highlight a day-to-day way in which women experience discrimination in one of their most basic bodily functions.”

C.S.’s lawsuit—and her demand that menstruation be considered under Title IX of the Educational Amendments of 1972—has the potential to break new ground. The landmark federal law dictates:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 

While the letter of the law makes no explicit reference to menstruation, the spirit and intent of Title IX surely require that it address disparity in educational equity and opportunity on account of it.

This argument is further expanded by law professors Bridget Crawford, Emily Gold Waldman and Margaret Johnson in a forthcoming article in the Harvard Journal of Law and Gender.

When Governor Andrew Cuomo signed legislation to mandate the provision of menstrual products for students—a law that has been in effect since July 2018—he indicated as much, too, proclaiming the law “a critical step forward in ensuring every girl in New York has the same opportunities to grow into a confident, successful woman.” 

Beyond protecting students like C.S., Title IX can undergird and advance other needed accommodations for menstruation. Schools are a uniquely potent setting for initiating and establishing healthy, equitable perspectives and practices.

Given that so many of our learned expectations and behaviors—speaking in code and euphemisms about periods (read all 5,000 of them here!), stashing a tampon up a sleeve, or scrambling to cover leaks and stains—take root during class and between the bells, educators can and play an important role in redefining the experience. 

Just imagine the power of children being taught to understand, empathize with and appreciate menstruation—personally and as members of a community.

How can Title IX be leveraged to achieve this? Here are some simple yet meaningful ways.

  • Require that school restrooms be fully stocked with pads and tampons, just as toilet paper is made readily available.
  • Save trips to the nurse for when periods are painful, not for access to basic products.
  • Keep curriculum and dialogue respectful and accurate.
  • Ensure that no student is disciplined or marginalized simply on account of menstruation. 

There is probably not a person reading this who doesn’t have a teenage period horror story to regale—their own or a friend’s mishap or mess, ranging from the mildly embarrassing to the mortifying.

But there is no reason why shame must persist as a universal rite of passage—or worse, as punishment. Quite the opposite: We can use the law as a lever to reverse that tide. 

This starts by righting the wrong so cruelly and needlessly inflicted on C.S.—all because her body is growing naturally and right on schedule. The move to enshrine menstrual equity into law, especially including in anti-discrimination policies like Title IX, is one key step toward achieving permanent, meaningful reform. 


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About

Jennifer Weiss-Wolf is a lawyer, fierce advocate for and frequent writer on issues of gender, feminism and politics in America. Dubbed the “architect of the U.S. campaign to squash the tampon tax” by Newsweek, she is the author of Periods Gone Public: Taking a Stand for Menstrual Equity, which was lauded by Gloria Steinem as “the beginning of liberation for us all,” and is a contributor to Period: Twelve Voices Tell the Bloody Truth.