Menstrual Equity
A Legislative Toolkit
Prepared by:
ACLU National Prison Project
Period Equity
December 2019
Acknowledgments
The authors would like to thank the following
individuals for their help in drafting this toolkit: Ruth
Sangree and Julia Morrison from the Brennan Center;
Sarah Wolf, Ella Matza, and Sarah Corning from
Period Equity; and Stephanie Ali, Mary Katherine
Cunningham, Suzanne Herman, Alessandra
Maldonado, and Lindsey Rosenthal of Professor
Elizabeth Cooper’s Legislative & Policy Advocacy
Clinic at Fordham Law School.
Contents
Overview ................................................................................................................................................... 2
Model Legislation
................................................................................................................................ 3
Messaging
................................................................................................................................................ 8
Advocacy Materials
............................................................................................................................ 9
Model Policy
......................................................................................................................................... 20
Case Study
............................................................................................................................................ 21
2 ACLU: Mentrual Equity Toolkit
campaign in 2015 and for its foresight in spearheading
the nation’s rst comprehensive menstrual equity
legislation in New York City in 2016. The initial focus
on access at the city’s shelters, school, and jails — at the
urging of impacted New Yorkers and commitment of
the corresponding city agencies — has since spurred a
national movement.
A number of ACLU state aliate oces, as well as the
National Prison Project of the ACLU, have successfully
fought for menstrual equity. For example, the ACLU
of Colorado worked with legislators to convince the
state’s Department of Corrections to make menstrual
products freely available to incarcerated people in their
custody. They also worked with formerly incarcerated
advocates to pass legislation to ensure access in local
jails. The ACLU aliates in California released a policy
reform tool, after conducting a comprehensive review
of reproductive health behind bars, that included
recommending access to free menstrual products
in jails. That recommendation is now the law in
California.
The areas that we and other advocates have already
pursued are not the only public arenas in which
menstrual equity can and should be advanced. We urge
readers to be creative in their application of this toolkit,
and to work with local leaders to determine what other
agencies and budgets can be tapped to ensure access for
all (think public transportation hubs, libraries, clinics
and food pantries, for example).
Period Equity and others also work to advance laws
and policies to ensure safe, environmentally healthy
menstrual products — a key component of menstrual
equity. And they promote myriad ways in which the
government can make menstrual products more
aordable and accessible, from inclusion in nutritional
benets programs and federal tax incentives, to access
in federal detention facilities. They also advocate
that menstrual equity be folded into other gender
equality advocacy, including workplace and pregnancy
discrimination laws, and the renewed campaign for
the Equal Rights Amendment. The book Periods Gone
Public is the go-to resource for these proposals, and so
many more. Please do check it out if you’re looking to
learn more about the history and future of menstrual
equity policy in America.
Section I: Overview
Dear Reader,
If you’re here, you probably already know that lack
of access to menstrual products can be a signicant
barrier for people across the United States.
Menstrual equity is the relatively new phrase, and
frame, for the burgeoning U.S. policy agenda to address
this issue. The term was coined by Jennifer Weiss-
Wolf in 2015 to oer a winning approach for engaging
policymakers. In her 2017 book, “Periods Gone Public,”
she explains, “In order to have a fully equitable and
participatory society, we must have laws and policies
that ensure menstrual products are safe and aordable
and available for those who need them.”
1
The equity
framework is intended to acknowledge the far-reaching
societal importance of and need for public policy to
address the safety, aordability, and availability of
menstrual products for everyone who needs them.
This toolkit provides you with key arguments and
materials for advancing menstrual equity in your state.
It includes sample legislative and policy language;
talking points; responses to common arguments; a
primer on the “tampon tax”; a template for a legislative
letter; model op-eds and links to other articles; tips for
managing social media and “viral moments”; a
brieng
paper on menstrual equity
; and an interview with an on-
the-ground advocate.
We’ve focused on a few specic areas: those that have
gained the most traction in recent years, namely,
ending the “tampon tax” and ensuring access to
menstrual products in public schools, government-
funded homeless shelters, and correctional
institutions. The specic policies included in the toolkit
were chosen due to their popularity in many U.S.
jurisdictions already — at local, municipal, state, and
federal levels alike.
The nonprot Period Equity brings distinct expertise
as the group that launched the national tampon tax
1 Jennifer Weiss-Wolf, Periods Gone Public: TakinG a sTand for
MensTrual equiTy xvi (2017).
3 ACLU: Mentrual Equity Toolkit
Section 1. Title
This Act shall be known and may be cited as the Menstrual Equity for All Act.
Section 2. Findings
[Note: Only include ndings if they will be persuasive for your legislature. The order and structure of
these ndings, if you include them, may need to be modied to suit your state.]
Menstrual products are vital for the health, well-being and full participation of women and girls.
Inadequate menstrual support is associated with both health and psycho-social issues, particularly
This toolkit is intended to be just the start, a rst crack
at the resources needed to get you started. We hope
that the materials in this toolkit will help you advance
menstrual equity in the ways that are meaningful in
your state. Stay tuned for many more resources to
follow!
Additional Resources
For more information about legislative campaigns
to ensure incarcerated people, homeless people, and
public school students are provided with menstrual
products, please contact Jennifer Weiss-Wolf, co-
founder of Period Equity (
www.periodequity.org
) and
author of “Periods Gone Public: Taking a Stand for
Menstrual Equity” (Arcade Publishing, 2017). She
can be reached at
jennif[email protected]
or (646)
292-8323.
Please let us know if you will be advancing this
legislative strategy so we can keep you updated on the
latest developments.
If you wish to focus on menstrual equity in jails,
prisons, juvenile detention centers or immigration
detention, please contact Amy Fettig, Deputy Director
of the National Prison Project at
or
(202) 548-6608.
Section II: Model
Legislation
The highlighted and bracketed elds throughout this
model bill will need to be adjusted to the specics
of your state. It is important to review the laws and
regulations in your state that govern the relevant
departments in order to draft a bill consistent with
overall practices.
Footnotes appear throughout the bill for your
information and support, but should be removed
entirely before sharing with legislators.
The provisions in this bill provide exible opportunities
for advocates, depending on the needs and challenges
in your state. Provisions of the bill regarding
incarcerated people, homeless people, or public
students can be introduced individually, combined for
an omnibus menstrual equity bill, or introduced as part
of other legislative reforms centered on one or more of
those populations.
You may also consider using the model provisions as a
model for other menstrual equity legislation, such as
ensuring access in other public buildings.
4 ACLU: Mentrual Equity Toolkit
among low-income women.
2
A lack of access to menstrual products can cause emotional duress, physical
infection and disease.
3
Access to menstrual products has proven to be limited for vulnerable populations. Currently the cost
of these products is not included in health insurance
4
or exible spending accounts or health savings
accounts,
5
nor in public benets programs such as the Supplemental Nutrition Assistance Program
(SNAP)
6
or Women, Infants, and Children (WIC) benets.
7
Although some homeless shelters voluntarily distribute menstrual products to their residents, such
products remain unfunded and can be more dicult to source from public donors than other toiletries.
8
Increased access to menstrual products in public schools may also increase attendance for poor
students.
9
Access to menstrual products in the prison and jail systems is also limited. Throughout the U.S.,
prisoners and detainees earn low or no wages and struggle to aord menstrual products from in-facility
commissaries. Often, the products sold at commissaries are of poor quality, limited in quantity, and
expensive, which results in some prisoners having to use products for longer than intended, reusing
pads, or even going without and bleeding through their clothes and in their living spaces. Improper and
extended use of menstrual products can be unsanitary and dangerous, leading to discomfort, infections,
and susceptibility to infertility and cancer. Lack of access to menstrual products can also take a severe
emotional toll, especially if prisoners are too embarrassed to take part in daily life within the prison.
There are [NUMBER] prisoners or detainees in women’s facilities in state custody as of [DATE].
The purpose of this Act is to improve the well-being, dignity, and quality of life of the people in [STATE]
by (1) requiring that the [Department of Corrections/Department of Public Safety] provide free, quality
menstrual products to prisoners and detainees in the State’s correctional facilities; (2) requiring that the
[Sheris/County Supervisors] provide free, quality menstrual products to prisoners and detainees in all
local correctional facilities, jails, and detention centers; (3) eliminating the tax on menstrual products;
(4) requiring that the [Department of Education] provide free, quality menstrual products to public
middle and high school students; and (5) requiring that the [Department of Health & Human Services]
provide free, quality menstrual products to individuals in need who access homeless shelter services in
[State].
2 Sumpter, Colin & Torondel, Belen, “A Systematic Review of the Health and Social Eects of Menstrual Hygeine Management,” PLOS One
8, no. 4 (2013): 1. https://journals.plos.org/plosone/article/le?id=10.1371/journal.pone.0062004&type=printable.
3 Weiss-Wolf, Jennifer. Time “America’s Very Real Menstrual Crisis,” Aug. 11, 2015, http://time.com/3989966/america-menstrual-crisis/.
4 “Mandatory & Optional Medicaid Benets.” Cents. for Medicare & Medicaid Services. Accessed Sept. 11, 2019. https://www.medicaid.gov/
medicaid/benets/list-of-benets/index.html.
5 “The Complete HSA Eligibility List.” HSA Store. Accessed Sept. 11, 2019. https://hsastore.com/HSA-Eligibility-List/T.aspx.
6 “What Can SNAP Buy?” Food and Nutrition Service, U.S. Dep’t of Agric. Accessed Sept. 11, 2019. https://www.fns.usda.gov/snap/
eligible-food-items.
7 Weiss-Wolf, Jennifer. The New York Times. “Helping Women and Girls. Period.,” Jan. 28, 2015, https://kristof.blogs.nytimes.
com/2015/01/28/helping-women-and-girls-period.
8 De Bode, Lisa. Al Jazeera America Media Networks. “Hygiene and heartache: Homeless women’s daily struggle to keep clean,” Jan. 13,
2015, http://america.aljazeera.com/articles/2015/1/13/-scared-to-walk-thestreet.html.
9 O’Connor, Meg. Gotham Gazette. “Council to Hear Bills on Providing Tampons at Shelters, Prisons & Schools,” May 27, 2016, http://www.
gothamgazette.com/index.php/city/6362-council-to-hear-bills-on-providing-tampons-at-shelters-prisons-schools.
5 ACLU: Mentrual Equity Toolkit
Section 3. Definitions
For the purposes of this Act:
a. “Menstrual product” is dened as dened as pads, pantiliners, tampons, menstrual cups, or
any product designed specically for absorption or containment of menses OR “menstrual
product” includes but is not limited to: pads, pantiliners, tampons, and menstrual cups.
b. The Institution shall ensure that the menstrual products provided under this section meet
applicable industry standards.
c. The menstrual product provision requirements of this Act shall apply to all menstruating
individuals regardless of gender or gender presentation.
Section 4. Provision of Menstrual Products in Detention Facilities
a. Each prison, jail, and juvenile detention center shall have a written policy and procedure in
place requiring menstrual products to be provided at no cost to a prison/detainee upon:
1. Admission to the facility;
2. A routine basis no less than monthly; and
3. Request.
c. Prisoners/detainees shall be provided their choice of menstrual products.
d. The [Director of the Department of Corrections/Sheri/Director of Juvenile Justice] shall
ensure that each Institution has a sucient supply of menstrual products available to meet the
needs of the prisoner/detainee population at all times.
e. Each Institution shall maintain records on the provision and availability of menstrual
products to prisoners/detainees.
f. All products shall be made freely available in bathrooms and living areas.
g. The written policy must include provision of menstrual products to prisoners/detainees
who are unable to access menstrual products in general population areas. These individuals
include, but are not limited to, people in segregated housing, people in medical isolation, and
people with disabilities. The policy must not require these individuals to make an armative
request for menstrual products but instead make them freely available in an appropriate
quantity.
6 ACLU: Mentrual Equity Toolkit
Section 5. State sales tax
10
The sales and use tax shall not apply to consumer purchases of pads, tampons, menstrual sponges,
menstrual cups, or other similar menstrual products. These products should be exempted in all cases.
Sales and use taxes imposed by localities, including counties and cities, may not apply to the consumer
purchases listed above.
Section 6. Homeless shelters and public schools
11
(a)(1) The Department [of Health and Human Services] shall make available to:
(i) service providers and local administering agencies for service providers a supply of
menstrual products sucient to meet the needs of residents in shelters; and
(ii) county boards of education a supply of menstrual products sucient to meet the needs
during the normal school year of all menstruating students.
(2) The menstrual products provided under Section 3 shall be made available free to:
(i) service providers, local administering agencies for service providers, and female residents
in shelters; and
(ii) county boards of education and public school students.
(3) Menstrual products shall be provided in both all restrooms in shelters and public schools and
shall be made available to all qualifying individuals who menstruate.
Section 7. Enforcement
NOTE: Having as many of these enforcement options in the bill as possible is preferred.
OPTION 1: Private Right of Action
a. Notwithstanding any relief or claims aorded by federal or state law, any person who has been
denied menstrual products in violation of this Act may le a complaint within [2 years] of
the incident. If the complainant is no longer in the custody of the correctional institution, has
exhausted the department’s established grievance procedures or protocols, or the correctional
institution has not responded to a complaint within [120 days], the complainant may institute
suit in [Superior Court, or whatever lowest level trial court in your state].
b. Any correctional institution found to have violated any provision of this Act or any rule
or regulation adopted under this Act shall be civilly liable to the person denied menstrual
10 Md. Code Ann., Tax-Gen. § 11-211(c) (West 2018).
11 Md. Code Ann., House & Cmty Dev. § 4-2401 (West 2017).
7 ACLU: Mentrual Equity Toolkit
products in violation of this Act. A court or adjudicatory body may award punitive damages per
incident. A court or adjudicatory body may further award attorneys’ fees, litigation costs, and
compensatory damages.
c. Nothing in this section shall prevent a person harmed under this Act from ling a complaint
under any other relevant provision of federal or state law.
OPTION 2: Notice to Prisoners and Detainees
a. Within 30 days of the eectiveness of this Act, all correctional institutions in [State] shall
develop rules pursuant to this Act.
b. Correctional institutions shall inform prisoners and detainees of the rules developed pursuant
to subsection (a) upon admission to the correctional institution, include policies and practices
pursuant to this Act in the prisoner handbook, and post policies and practices pursuant to
this Act in locations in the correctional institution where such notices are commonly posted,
including common housing areas and medical care facilities.
c. Within 60 days of the eectiveness of this Act, correctional institutions shall inform prisoners
and detainees within the custody of the correctional institution of the rules developed pursuant
to subsection (a).
OPTION 3: Annual Report
a. No later than 30 days before the end of each scal year, the [Director of the Department of
Corrections] and the [corrections ocial] of each municipal and county correctional institution
where women prisoners or detainees are held shall produce a report containing: the number of
[prisoners or detainees] held in such facility; the number of tampons, pads, and other menstrual
products purchased that year; and any grievances or other complaints about lack of access to or
quality of menstrual products. Such reports shall be made available for public inspection.
Section 8. Effective date.
This Act takes eect upon becoming law.
8 ACLU: Mentrual Equity Toolkit
Section III: Messaging
The message box, talking points, and responses
to common arguments can guide your advocacy in
the legislature and press, as well as your public
education eorts.
Menstrual Equity Talking Points
Menstrual equity is a basic equity issue. Just as
we have regulated the provision of toilet paper and
paper towels in public restrooms, so too should we do
the same for menstrual products. Menstruation is a
natural monthly occurrence, experienced by over half
the population for much of their lives, and should not be
treated dierently than any other basic bodily function.
It’s unhygienic not to have access to menstrual
products, no less so than to lack access to toilet paper.
Menstrual equity is a serious issue for
marginalized populations. People living in
poverty are most aected by lack of access to
menstrual products. These individuals often
cannot aord sucient menstrual products and so
disproportionately suer the medical and psychological
impact of reusing products, using products for longer
than indicated, or not using any products at all. These
individuals are also more likely to have to suer the
societal eects of lack of access including problems
with attendance at work or school and the appearance
of being unprofessional or unhygienic. Nobody in this
country should have to miss school or work simply
because they cannot aord menstrual products.
Menstrual equity is desperately needed in
prisons, jails, juvenile detention centers, and
other detention facilities. Incarcerated people
are in the custody of the state and rely entirely on
prison/jail sta to meet their medical and hygiene
needs. When correctional ocers withhold menstrual
products, the people in their custody are subject to
the humiliation and health concerns caused by lack of
access. They may have to beg correctional ocers for
additional products or risk bleeding through clothes
that they must continue to re-wear until laundry day.
Additionally, some correctional ocers have used
access to menstrual products to coerce women in their
HOW TO RESPOND TO COMMON
ARGUMENTS
ARGUMENTIt costs too much to provide
menstrual products in [shelters/schools/
correctional facilities]
RESPONSEThe cost of menstrual products
is negligible when compared to the cost of
actually running the facilities. The government
already pays for other necessities, such as
toilet paper, and nobody suests that it stop
doing that simply because it would be cheaper
not to. People have the right to menstruate in
public, and they even have a constitutional
right to basic human needs like menstrual
products if they are incarcerated, and so the
government has an obligation to act even if
there is some cost involved.
ARGUMENTEverything is taxed
RESPONSEItems deemed “necessary” are
generally exempted from otherwise broadly-
applicable state sales taxes. Those items
are often far less necessary than menstrual
products. For example, states exempt items
such as Pixy Stix, golf club memberships,
arcade game tokens, garter belts, and gun
club memberships from state sales taxes.
1
State governments can make up the shortfall
through taxing online sales or removing some
of these less-necessary exemptions.
ARGUMENT Free provision of menstrual
products would present a security issue in
prison/jail/juvenile justice facilities
RESPONSEAccess to freely available
menstrual products does not present a
security issue. Specifically, the Office of the
Inspector General interviewed a number of
federal prison staff and none could articulate
any security concerns; among institutions that
have freely available products, no security
concerns have arisen.
2
1. Weiss-Wolf, Jennifer. Periods Gone Public: Taking a Stand for
Menstrual Equity. (New York: Arcade, 2017).
2. Review of the Federal Bureau of Prisons’ Management of Its
Female Inmate Population. 2018, https://oig.justice.gov/
reports/2018/e1805.pdf.
9 ACLU: Mentrual Equity Toolkit
care into sex. People who are incarcerated should not
have to beg for basic hygiene supplies or risk abuse or
even rape simply due to menstruation.
Menstrual equity is a public health concern. The
potential medical issues facing individuals without
access to menstrual products, including infections
that can cause susceptibility to cervical cancer and
infertility, are serious. The fact that these issues
primarily aect vulnerable communities, especially
along income lines, should move and motivate public
health advocates. Greater access to menstrual products
through elimination of sales tax and free availability in
places accessed by vulnerable communities can have
a real impact on the health of these communities for a
relatively low investment.
Menstrual equity is a gender equality issue. Lack
of access to menstrual products — whether the result
of policies that do not consider the needs of people who
menstruate in homeless shelters, schools, or carceral
facilities or the result of unnecessary sales taxes — is a
clear form of gender-based exclusion and oppression.
Failure to consider menstrual needs is a form of sex-
based discrimination and disproportionately aects
women. Furthermore, lack of access can be particularly
harmful to nonbinary people and transgender men who
have disproportionate rates of poverty and may have
high incarceration rates at well.
Menstrual equity is part of reproductive justice.
The heart of reproductive justice is the right to
“maintain personal bodily autonomy.”
12
Reproductive
justice advocates work to “understand and eradicate …
gendered, sexualized, and racialized acts of dominance
that occur on a daily basis.”
13
People who lack consistent
access to menstrual products may be subjected to
gendered and sexualized acts of dominance because
they may be made to feel embarrassed or told they are
unprofessional if they attempt to move through the
world with blood-stained clothes. They may be forced
to reuse products or use them for too long, resulting in
dangerous medical conditions that could impact their
reproductive possibilities. Without consistent access to
12 “Reproductive Justice.” SisterSong. Accessed Sept. 11, 2019. https://
www.sistersong.net/reproductive-justice/.
13 Id.
sucient menstrual products, people who menstruate
may ultimately lack the ability to participate fully in
civic society.
Section IV: Advocacy
Materials
Included in this section are materials that can assist
your legislative advocacy:
•
A Tampon Tax primer – for key basics about the
issue, a summary of the advocacy campaign to
date, and a preview of the new legal intervention
being spearheaded by Period Equity,
accompanied by a feature in The New York Times
and an op-ed in the Los Angeles Times.
•
When asking for the support of legislators or the
Governor, the model legislative letter can be
easily adapted for your state.
•
Op-eds written in support of providing
free menstrual products to prisoners and
summarizing the impact of gender-based pricing
and the tampon tax and a resource page linking
to other op-eds and articles.
•
The
ACLU National Prison Project – Period
Equity Brieng Paper on Menstrual Equity
provides an excellent primer on the issue for
aliates, coalition partners, and legislators.
•
An advocacy tool, “How to Respond to Viral
Moments,” to advise on creating high-level public
discourse.
•
The book Periods Gone Public: Taking a Stand
for Menstrual Equity (Arcade Publishing, 2017)
is an essential resource for the menstrual equity
movement. The Period Equity website (
http://
www.periodequity.org/
) catalogs all media and
related commentary on menstrual equity issues.
10 ACLU: Mentrual Equity Toolkit
Tampon Tax
The tampon tax is regular sales tax or value-added tax
applied to menstrual products — or, conversely, the
failure of the state to otherwise exempt these products
from sales tax by placing them in the category of
necessity.
The arguments for taking on — and taking down — the
tampon tax are four-fold: It would lift a small nancial
burden; challenge laws that are archaic, unfair, and
discriminatory; help inch toward a model of economic
parity and gender equity; and oer a gateway for
enabling people to talk and think about the wider
implications of menstruation — social, economic, and
otherwise — in our policy making.
The Basics. Here’s a comprehensive primer setting
forth the mechanics of the U.S. tampon tax, excerpted
from Periods Gone Public and updated accordingly:
Sales tax is primarily a state issue. Sales tax
is legislated and levied state by state. Each state
decides what items to exempt, at what rate items
will be taxed, and if/how sub-bodies like counties
or municipalities can do the same. Prior to 2015,
there were ve states that already exempted
menstrual products — Maryland, Massachusetts,
Minnesota, New Jersey, and Pennsylvania —
though not as a result of a concerted campaign.
Another ve states — Alaska, Delaware,
Montana, New Hampshire, and Oregon — collect
no sales tax at all, and therefore don’t tax these
items. By 2019, Connecticut, Florida, Illinois,
Nevada, New York, and Rhode Island, as well as
Washington, D.C. and the cities of Chicago and
Denver, permanently eliminated the tampon
tax. That leaves 34 states that still tax menstrual
products.
A “luxury” tax? The tax itself is not a special
or additive levy. Rather, it is regular sales tax
applied to menstrual products, ranging from
roughly 4 to 10 percent depending on the state
tax code. Generally, and as a matter of historical
practice since sales taxes were rst implemented
in the U.S. in the 1930s, states exempt food and
other items deemed necessities of life, such as
medicine and prescription drugs, from sales tax.
Nor is it a “luxury” tax, a common misnomer.
The term is a by-product of the vernacular
of the European Union’s value-added tax,
a consumption tax that, at its highest rate
categories, applies to “non-essential luxury
items.”
What is a necessity? Lack of consistent
classication of “medical necessities” has
resulted in a complicated and often inconsistent
array of recommendations and outcomes. Food
generally is tax exempt. Prescription drugs
— ranging from the life-saving (insulin) to the
life-enhancing (Rogaine and Viagra) — also
receive tax exemptions. So too are incontinence
pads, dandru shampoo, and lip balm under
this classication. Meanwhile, items that seem
comparable to menstrual supplies and that may
also be deemed basic (if not medical) necessities,
are often taxed — toilet paper, soap, and
bandages among them.
The costs. A year’s supply of tampons and pads
for a person costs in the range of $70 to $120,
depending on where one lives, how heavy one’s
ow is, and the ability to take advantage of cost-
cutting measures. (Reusable alternatives like
menstrual cups, absorbent underwear, and cloth
pads often have high upfront costs but are more
cost-eective over time.) The amount of annual
tax revenue states collect on the sale of these
products is based on the number of menstruating
people in the state, ranging from $1 million in
Utah to $20 million in California, for example.
It is worth noting that periods are costlier for
those who have the least means, and often
pay considerably more for the exact same
items because they’re subject to the inated
prices charged at convenience stores or they
can’t aord the cost benet of buying in bulk.
Sales taxes are also inherently regressive,
causing a greater relative burden to low-income
consumers.
Is the “tampon tax” the same as the “pink
tax”? The phrase “pink tax” is a popular
euphemism for the phenomenon where goods or
11 ACLU: Mentrual Equity Toolkit
services marketed for women often cost more
than the men’s equivalent for no reason other
than price gouging. This is dierent from the
tampon tax, but nonetheless a challenge posed
by gender-based pricing. A 2015 New York City
Department of Consumer Aairs study, “From
Cradle to Cane: The Cost of Being a Female
Consumer,” cited the following examples:
shampoo and conditioner in the women’s aisle
cost an average of 48 percent more than that in
the men’s; women’s jeans are 10 percent more
expensive; dry cleaning bills for women’s shirts
run an average of $4.95 as compared to $2.86 for
men’s.
14
These ndings were bolstered by a 2018
report from the U.S. Government Accountability
Oce, “Gender-Related Price Dierences for
Goods and Services,” which found gender-based
pricing discrepancies 50 percent of the time.
15
Policy Progress in the United States. Among its
most distinct characteristics in the U.S., the tampon
tax argument has unusually strong trans-partisan
appeal. There are persuasive perspectives from all
sides — left, right, libertarian — focused on social
justice and gender equity, or tax relief, or limiting the
scope of government reach. One unique challenge:
Because there is no national sales tax in the U.S., but
instead a multitude of municipal- and state-specic
tax codes, there is not the simplicity of organizing one
overarching nationwide campaign.
Starting in January 2016 and through the present,
proposals to exempt menstrual products from sales
tax have been introduced or debated in legislatures in
Alabama, Arizona, California, Colorado, Connecticut,
Florida, Georgia, Hawaii, Illinois, Indiana, Iowa,
Kentucky, Louisiana, Maine, Michigan, Mississippi,
Missouri, Nevada, New York, New Mexico, North
Dakota, Ohio, Rhode Island, South Carolina,
Tennessee, Texas, Utah, Vermont, Virginia,
Washington, West Virginia, and Wisconsin — as well as
the District of Columbia, Denver, and Chicago.
16
14 Bessendorf, Anna. “From Cradle to Cane: The Cost of Being a Female Consumer: A Study of Gender Pricing in New York City.” New York City
Department of Consumer Aairs. December 2015, https://www1.nyc.gov/assets/dca/downloads/pdf/partners/Study-of-Gender-Pricing-in-NYC.pdf.
15 U.S. Gov’t Accountability O., GAO-18-500, Consumer Protection: Gender-Related Price Dierences for Goods and Services (2018), https://www.gao.
gov/assets/700/693841.pdf.
16 “Tax Free. Period.,” www.taxfreeperiod.com (last visited Sept. 11, 2019).
17 Kasperkevic, Jana. Marketplace. Nevada’s “‘Tampon Tax’ Ballot Initiative Brings Up Questions about Fairness and Gender Equality,” Nov. 1, 2018,
https://www.marketplace.org/2018/11/01/elections/nevada-s-tampon-tax-ballot-initiative-brings-questions-about-fairness-and.
Among the victories:
• City ordinances:
Chicago was the rst jurisdiction in 2016 to
eliminate the tampon tax; Denver is the other
major municipality that has done so (in 2019).
The Washington, D.C. Council exempted
menstrual products from sales tax in 2016.
It took two years for the benet to reach
consumers, however, since Mayor Muriel
Bowser failed to fundthe provision in the
budget eective immediately. The exemption
began in October 2018.
• State legislation:
New York and Illinois unanimously passed
laws in 2016 that were signed by those
states’ respective governors — in New York,
a Democrat, in Illinois, a Republican —
demonstrating bipartisan commitment to the
issue.
Florida successfully passed a tax exemption
for menstrual products in 2017, signed by a
Republican governor. Connecticut became the
next state to eliminate the tax by legislation in
2018, signed by a Democrat.
• State ballot measures:
On Election Day 2018, Nevada voters approved
the rst-ever ballot measure on the tampon
tax. Starting January 1, 2019, the state’s 6.85
percent sales tax on menstrual products will
be lifted. The lawmakers who proposed the
measure made clear their intention that the
state should not be funding its needs “on the
backs of women.”
17
Given the unnecessary
hurdles that have emerged in several state
legislatures, some detailed below, ballot
measures are an important lever for making
12 ACLU: Mentrual Equity Toolkit
change, and a strategy to replicate going
forward.
Leveraging Litigation. Policy advocacy has been
a demonstrably productive path to achieving legal
change. Now the courts may be the next frontier to
nationwide repeal.
Litigation was rst undertaken as a method for
seeking tax relief in 1989 when a group of Chicago
women brought a lawsuit, Geary v. Dominick’s Finer
Foods, against a retailer as well as the City of Chicago
and the city, county, and state tax authorities. The
plaintis successfully argued that the city should
follow the statewide classication of tampons and
pads as “medical appliances.” But in 2009, the Illinois
legislature reclassied tampons as “grooming and
hygiene products,” eectively reversing the outcome.
A second lawsuit was initiated nearly twenty years
later by Period Equity as a coordinated intervention to
bolster policy advocacy. In March 2016, a class-action
lawsuit was led in New York State, Seibert v. New York
State Department of Taxation & Finance, charging that
the tampon tax violates New York State Tax Law, the
U.S. Constitution’s Fourteenth Amendment, and the
New York Constitution’s Equal Protection Clause. The
primary impetus for the lawsuit was to pressure the
governor to assert that he would act once the legislature
passed a law for him to sign — which it did, just one
week later. Once the bill was signed into law, the suit
was voluntarily dismissed.
18
Now, Period Equity has launched a nationwide legal
initiative to connect state advocates and attorneys
with national experts to join forces on mobilizing
legal action to challenge the tampon tax. Please visit
TaxFreePeriod.com for more information and to join
the campaign.
For further reading, please see:
Karen Zraick, 22 States Considered Eliminating
the Tampon Tax This Year: Here’s What Happened.,
18 Similar lawsuits have been led making comparable (and additional) legal claims in California, Florida, and Ohio. Like New York, the Florida case was
voluntarily withdrawn when legislation passed. The California case was dismissed on procedural grounds pertaining to the standing of the plainti. The
only current live case is in Ohio, which argues on Equal Protection grounds, as well as that menstrual products should be classied as medical devices
(under federal law, as per the FDA) or “durable medical equipment” (under state law), and therefore tax exempt; that case is pending appeal.
n.y.TiMes (July 12, 2019), https://www.nytimes.
com/2019/07/12/us/tampon-tax.html.
Jennifer Weiss-Wolf & Erwin Chemerinsky, Taxing
Tampons Isn’t Just Unfair, It’s Unconstitutional, l.a.
TiMes (July 11, 2019), https://www.latimes.com/
opinion/op-ed/la-oe-chemerinsky-weiss-wolf-tampons-
tax-20190711-story.html.
13 ACLU: Mentrual Equity Toolkit
[Name]
[Street Address]
[City, State, Zip]
[Date]
Dear [Legislator/Governor/etc.],
If individual: My name is [Your Name] and I live in your district at [Street Address] in [Your State].
I urge you to support [Bill number or name] to help provide free, quality menstrual products to
[incarcerated people]/[people who are homeless]/[public school students]. By supporting this bill,
you show that you care about providing basic healthcare and safety to the [incarcerated people]/[people
who are homeless]/[public school students] in [State] who currently suer from inadequate access to
menstrual products.
If organization: On behalf of the [American Civil Liberties Union (ACLU)/other organization name], we
write to urge you to support and cosponsor the [Bill number or name]. For nearly 100 years, the ACLU
has been our nation’s guardian of liberty, working in courts, legislatures, and communities to defend
and preserve the individual rights and liberties that the Constitution and the laws of the United States
guarantee everyone in this country. With more than 1.5 million members, activists, and supporters, the
ACLU is a nationwide organization that ghts tirelessly in all 50 states, Puerto Rico, and Washington,
D.C., for the principle that every individual’s rights must be protected equally under the law
[Bill number or name] is a comprehensive initiative that promotes common goals:
• Gender Equality: Lack of access to menstrual products is a form of gender-based oppression.
Menstrual products are essential to reproductive health and should be deemed as such. Lack of
access can be particularly harmful to nonbinary people and transgender men.
• Public Health: The medical issues facing individuals without access to menstrual products,
including preventable infections that can cause susceptibility to cervical cancer and infertility,
are life-threatening.
• Basic Hygiene: Just as we all expect toilet paper and paper towels to be readily available in
public restrooms, we can and should expect the same of menstrual products. Menstruation is a
natural occurrence, experienced by over half the population throughout their lives, and should
not be treated dierently.
[Bill number or name] recognizes that access to menstrual products is integral to health and safety. For
your reference, here are some of the challenges people who cannot access menstrual products face:
• Medical Consequences: Lack of access to menstrual products can cause physical infection
and disease and can lead to cervical cancer.
• Civic Consequences: People who lack access to menstrual products may choose not to attend
[work/school/family or attorney visits] in order to avoid having to use products incorrectly or
wear stained articles of clothing in public. People who menstruate deserve to participate fully in
public life, and therefore they deserve access to menstrual products.
14 ACLU: Mentrual Equity Toolkit
• Safety and Abuse [if the bill includes incarcerated people]: Incarcerated people rely
entirely on correctional sta to meet their medical needs. When correctional ocers withhold
menstrual products, the people in their custody who menstruate are subject to the humiliation
and health concerns caused by lack of access. Additionally, some correctional ocers have
used access to menstrual products to coerce women into sex. Incarcerated people should
have full access to menstrual products. Furthermore, they should not face threats of
abuse or assault when seeking access to menstrual products and reproductive care.
If individual: I care about access to menstrual products because … [here is where you may include
a personal story. Tell your representative why the issue is important to you and how it aects
you, your family member(s) and/or your community. If you choose not to include a personal
statement, you may delete this paragraph.]
[NOTE: If your organization has advocated on behalf of an impacted person, you may consider
sharing their story here.]
[I/we] urge you to support [Bill number or Name] to help improve the lives of [incarcerated people]/
[people who are homeless]/[public school students] in [Your State]. [I/we] welcome you to contact
[me/us] with any additional questions you may have. [I/we] look forward to your response.
Sincerely,
[Your Name]
[Extras to include, if necessary:
Why You Should Do It:
Menstrual equity legislation presents the opportunity to proactively advocate for a civil liberties issue
that cuts across traditional reproductive, women’s, and prisoners’ rights.
Legislation that advocates for menstrual equity centers marginalized populations. “Our society will not
be free until the most vulnerable people are able to access the resources and full human rights to live self-
determined lives without fear, discrimination, or retaliation”
—
Sister Song: Women of Color Reproductive Justice Collective
.
It is a constitutional right to stand up and speak out against injustice. Direct communication with
legislators about those injustices is the most eective way to see that they are acted upon.
15 ACLU: Mentrual Equity Toolkit
Op-Ed: Taxing tampons
isn’t just unfair, it’s
unconstitutional
By Erwin Chemerinsky, Jennifer Weiss-Wolf
JULY 11, 2019 3:05 AM
If the government were to require that only men or
only women had to pay a tax of several hundred dollars
a year solely because of their sex, that would be an
unconstitutional denial of equal protection under the
14th Amendment. Yet that is exactly the eect of the
so-called tampon tax.
Currently, residents of 35 states must pay sales tax on
purchases of tampons and pads because they are not
deemed necessities worthy of an exemption. And that’s
in addition to the roughly $5 to $10 for these products
that women have to shell out each month. States
collectively prot upwards of $150 million a year from
taxing menstrual products. In California alone, women
pay $20 million annually.
Although many states considered creating tax
exemptions this spring, only one permanent exemption
was approved. Over the holiday weekend, Rhode Island
Gov. Raimondo signed a new state budget, which
included a provision approved by the Legislature to
make menstrual products sales tax exempt starting in
October.
The issue also became a matter of scal negotiations
in California. Back in May, Gov. Gavin Newsom wrote
the cost of implementing a tax exemption for menstrual
products into his proposed budget. The catch: It would
last only for the duration of the budget, for two years.
That move was backed by the Legislature, which
had been trying unsuccessfully to pass a permanent
exemption into law since 2016. The governor signed the
budget on June 27.
Eliminating the discriminatory tampon tax isn’t a
legislative nicety or a budgetary option. It is a legal
mandate. Period.
Temporary expenditure lines — subject to the whim of
the state’s leadership — are not enough. The sales-tax-
exempt status of menstrual products must be made
permanent in California and adopted into law in every
state.
The issue is gaining traction globally. Back in 2015,
Canada eliminated its national goods and services tax
on menstrual products. Similar exemptions have since
passed in diverse nations and economies, including
Australia, India, Malaysia and South Africa.
In the United States, where sales taxes are levied by
each state, bills have been introduced in 32 legislatures
since 2016 to exempt menstrual products from sales
tax. Five succeeded: Connecticut, Florida, Illinois and
New York passed laws. Additionally, citizens of Nevada
approved a 2018 ballot measure to accomplish the
same. Another 10 states don’t tax menstrual products —
either because they collect no sales tax at all, or because
they’re included under general exemption categories.
In 2019, tampon tax bills were introduced in 22 states
with bipartisan and overwhelming public support.
And yet, the legislative sessions ended with a dismal
scorecard. In Tennessee, legislators added insult to
injury: After a tampon tax bill died there this year, a
subsequent budget surplus was used to eliminate a gun
ammunition tax, enabling the state to save its “hunters
and shooters $500,000 annually across the state,” as
one state representative explained to his constituents.
As a matter of policy, compassion and common sense,
most states explicitly exempt “necessities of life” from
sales tax, with food and medicine at the top of the list. In
some states, necessity exemptions include things such
as bingo supplies, cotton candy, erectile dysfunction
pills, gun club memberships and tattoos. Menstrual
products certainly rank as a necessity for most women,
for much of their lives. They are essential for attending
school, working and functioning in society.
But as a matter of law, the argument extends far
deeper. The tampon tax amounts to sex-based
discrimination in violation of the equal protection
clause, both under state and federal constitutions —
making it more than merely unfair or inequitable, but
unconstitutional and therefore illegal.
16 ACLU: Mentrual Equity Toolkit
In 2016, ve plaintis brought a class-action lawsuit
against the New York State Department of Taxation
making these arguments. The case was withdrawn
after the Legislature and Gov. Andrew Cuomo quickly
responded to public outcry and passed legislation.
But the central argument advanced in that case is valid,
and it is one increasingly being made by legal scholars.
It should be raised again in the courts. A law that
aects only one sex — or one race, or one religion — is
inherently discriminatory. U.S. Supreme Court Justice
Antonin Scalia once famously remarked that a tax on
yarmulkes is a tax on Jews (interestingly, in a case
about abortion clinic blockades). In the same vein, a tax
on a product used only by women, and used by all (or
the vast majority of) women for much of their lives, is a
tax on women.
At the very least, equal protection requires that all
actions that treat some dierently from others have
a rational basis. There is no reasonable justication
to tax menstrual products given the exemptions that
exist in every state for the necessities (and even non-
necessities) of life.
Eliminating the discriminatory tampon tax isn’t a
legislative nicety or a budgetary option. It is a legal
mandate. Period.
Erwin Chemerinsky is dean of the UC Berkeley Law
School. Jennifer Weiss-Wolf is co-founder of Period
Equity and author of “Periods Gone Public: Taking a
Stand for Menstrual Equity.”
For Women in Prison,
Tampons Should Be Free
By Jennifer Weiss-Wolf And Chandra Bozelko
JULY 13, 2017
Sen. Elizabeth Warren and Sen. Cory Booker introduce the Dignity for
Incarcerated Women Act at the Capitol. CreditGabriella Demczuk for The
New York Times
The
Dignity for Incarcerated Women Act
,
introducedon Tuesdayby Senators Cory Booker
(D-N.J.) and Elizabeth Warren (D-MA), is a bold
move to improve the care and treatment of the nearly
13,000 female inmates locked up in federal prisons.
Among the bill’s critical provisions, it would ban
shackling pregnant women or placing them in solitary
connement. And it would help incarcerated mothers
maintain close ties to their children by easing visitation
restrictions and allowing for free phone calls.
It also acknowledges that for those behind bars, there
are unnecessary hurdles to coping with menstruation
and managing periods in a healthy and hygienic way.
The bill includes a directive to distribute quality pads
and tampons to inmates, free of charge.
The proposal seems so sensible — and the alternative so
inhumane — that one might wonder why it hasn’t been
raised as a legislative priority before.
It has been raised on the local and state level:
New York
City
passed a law last summer requiring the same in all
of its correction facilities (shelters and public schools,
too). Earlier this year,
Colorado
mandated funding
17 ACLU: Mentrual Equity Toolkit
for tampons in its state prisons; and
Los Angeles
County
did in its juvenile detention centers.
What none of these proposals regarding menstruation
fully addresses, though, is the reality that the
availability of sanitary products isn’t simply a matter
of budget lines and purchasing orders. It has little to do
with stock, supply, or actual need.
Rather, it has everything to do with power.
In correction facilities across the country, from
county jails to federal penitentiaries, the varied ways
in which
menstruating prisoners
are disregarded or
disrespected is staggering. When access to basic
hygiene supplies is withheld, it is often the direct result
of an abusive culture — one that many facilities tolerate
and few laws can adequately address.
In 2016, a
Kentucky judge
was stunned to nd a
defendant appear in court for arraignment wearing
no pants and menstruating. She explained that
correctional ocers refused to give her pads or a
change of clothes when she told them she had her
period, despite repeated requests. Footage from the
courtroom went viral — an intense scene in which
the outraged judge called the jail sta from the
bench, demanding an explanation and shouting to
the courtroom, “Am I in the
Twilight Zone
? What is
happening here?”
Unfortunately, menstruating prisoners rarely receive
such dogged intervention. Instead they get peppered
with intrusive questions and insults: “Didn’t I give
you one yesterday?” Or, “Damn, girl, you must have a
heavy ow.”At one
New York state prison
(which has
since been closed), inmates reportedly had to save and
show their used, blood-soaked pads as proof more were
needed. These inquiries and stunts are outlawed under
the overarching prohibition of “undue familiarity”
between sta and inmates – rules that regulate
interactions that are too intimate, ranging from sexual
relations to performing personal favors — but those
rules aren’t widely enforced either.
The Dignity for Incarcerated Women Act oers a smart
starting place for shining the national spotlight on an
otherwise hidden problem and establishing baseline
expectations. But, truly, at the heart of the matter is
the inherent power imbalance, coupled with rampant
misogyny, to which incarcerated women are subject.
We urge the bill’s sponsors to factor in clear-cut
guidance for treatment of menstruating inmates,
leaving as little room as possible for subjectivity and
discretion as to the manner in which products are
distributed. This includes limiting interactions among
or between inmates and sta — especially where
the ability to exert dominance or reinforce stigma
looms. At last year’s New York City Council hearings,
for example, activists testied that pads should be
centrally placed near toilets or in a common location
so inmates can simply take what’s needed without
having to seek permission or intervention. That would
be a small accommodation that could yield tremendous
benet.
Kudos to Senators Booker and Warren for declaring
that the ability to manage menstruation is not a bonus,
a reward, an entitlement, or a favor to be begged or
bargained for. Even if this bill doesn’t get the attention
it deserves this Congress, it has highlighted the fact
that this is a core human need, even and most especially
for those in government custody. And should be treated
as such. Period.
Other Op-eds and Articles
Karen Zraick, Twenty-Two States Considered
Eliminating the “Tampon Tax” This Year. Here’s What
Happened.,
n.y. TiMes (July 12, 2019),
https://www.
nytimes.com/2019/07/12/us/tampon-tax.html
.
Jessica Wakeman, Pink Tax: The Real Cost of Gender-
Based Pricing,
HealTHline (Aug. 2, 2018),
https://www.
healthline.com/health/the-real-cost-of-pink-tax#1
.
18 ACLU: Mentrual Equity Toolkit
Harnessing Viral
Moments in the Fight for
Menstrual Equity
For better or for worse, menstruation-related news
stories have a tendency to grab headlines and garner
outsized attention. It happens with astonishing
regularity — whether it is a celebrity, a world leader, or
a little-known local legislator weighing in. Traditional
media and social media channels, replete with catchy
hashtags, are both ripe for tapping. The goal, of
course, is to shift the discourse toward destigmatizing
menstruation and point to viable policies that promote
menstrual equity.
What’s a Viral Moment? There are a variety of
factors that determine what is a viral moment: namely,
the number of views and the rapidity with which a story
is shared. One of the key reasons viral moments can
be so impactful is that they enable advocates to shape
and redirect public discourse while capitalizing on the
pre-existing reach. Viral moments can also help inspire
actionable moments for your audience: if something has
already moved someone to share or engage, they will be
more likely to act and respond to your call to arms.
There are many ways to respond to viral moments.
Here we propose two key outlets for change: op-eds and
social media.
Why Op-Eds? When you think of a standard op-ed,
you might think of a syndicated column in a national
newspaper. However, there are increasingly more
opportunities to get an op-ed placed, especially in blogs
with national audiences and local newspapers. Op-eds
are a great way to make a public argument, connect
with everyday readers, and attract the attention of
elected ocials. To build the credibility of your op-ed,
consider nding an organizational partner or local
leader to sign on.
See:
How to Place an Op-Ed in Your Local Newspaper
Why Social Media? Integral to the success of many
eective social movements, from the Civil Rights
Movement to #BlackLivesMatter to #MeToo, is an
eective outreach strategy that activists should employ
to broadcast their cause. Social media (Facebook,
Instagram, Twitter, and other platforms) enables
reach to audiences at a previously unimaginable scale.
This document will detail ways that you can use these
platforms to harness viral moments (both good and
bad) and redirect it to promote core menstrual equity
talking points.
See:
8 Massive Moments Hashtag Activism Really,
Really Worked
When responding to viral moments, particularly
negative remarks, acknowledge the source, and then
respond in a thought-provoking way that eectively
and eciently knocks down their argument. Even
if someone says something positive that you don’t
fully agree with, you can build on that moment by
acknowledging and redirecting towards your key
platform points.
Additionally, it’s important to empower your audience.
Viral activism becomes most eective when it includes
a strong, doable call to action, ranging from “share
and comment” to “call your elected representative”
to “donate menstrual products to your local shelter.”
A call to action not only propels the message, but also
strengthens the community and encourages express
engagement with the issue.
With hashtag activism comes visibility, as well
as community. It catalyzes conversation that
can lead to action, especially for issues or
groups that have been deliberately stifled. In
the case of menstruation, even simple tweets
like “Hey @RealDonaldTrump, I had my period
last week and was still 1000x more awesome
than you the whole time” (an actual tweet by
an actual awesome user) not only allow the
messenger to revel in her own moment of
empowerment but also to convey confidence
to countless others who just may be inspired
to abandon their shame and silence, too.
— Periods Gone Public: Taking a Stand for
Menstrual Equity
19 ACLU: Mentrual Equity Toolkit
Some examples of viral moments that helped
propel menstrual equity into the mainstream:
The good … YouTuber Ingrid Nilsen’s 2016 live
interview with
President Obama during which she
asked him about the tampon tax, and he responded with
an impromptu reection on how the lack of women in
government impacts full representation. An amazing
talking point to run with!
The bad … In early 2019, Maine Rep. Richard Pickett
suggested that jail would
be like “a country club” if
incarcerated women were given access to free pads
and tampons. The remark was reported on in the
national media and met with deep criticism. Local
activists
ooded the Maine Legislature
with testimony
about what menstrual equity means to them. Pickett’s
comments raised the salience of the issue and helped
spur the Maine legislature (and other states) to debate
and pass related menstrual equity legislation that
session.
And the ugly …
#PeriodsAreNotAnInsult
was
unleashed in 2015 after President Trump, then a
contender for the Republican ticket, complained about
a female debate moderator (the well-known Megyn
Kelly), taunting that she had “blood coming out of her
wherever.” In response, Amber Gordon of Femsplain,
a feminist storytelling platform, created the hashtag,
urging women to live-tweet their period stories at
Trump.
Shortly thereafter, then-Gov. Mike Pence signed a law
imposing strict limitations on abortions for Indiana
women. An anonymous Indiana woman (who has since
identied herself as an activist named Laura Shanley)
responded by starting a Facebook page called
Periods
for Pence
, inviting women to call Pence’s oce daily
about their periods as a means of protesting the law
and the attack on reproductive rights. The correlating
#PeriodsForPence hashtag also went viral.
And for a dose of inspiration … Although
#TheHomelessPeriod
was not built from a singular
viral moment, it provides a valuable lesson in how to
best uplift stories about at-risk populations. It has been
especially eective in enabling women to share their
stories, in their own words, in an easy-to-grasp frame.
It encourages a people-rst frame (and language)
— also key. Other noteworthy hashtag campaigns:
#JustATampon featured seles of prominent Brits
holding, yes, a tampon. RACKET, a New York City-
based collection drive, organized Broadway stars
to pose with pads using #PeriodsWithoutShame.
In India, #HappyToBleed was formed to counter
the centuries-old ban on women in Hindu temples.
#FreeTheTampons makes the case for all private
businesses and public restrooms to provide tampons
and pads as they do toilet paper and soap.
20 ACLU: Mentrual Equity Toolkit
Section V: Model Policy
I. Detention Facilities
19
Section 1. Policy
It is the policy of [institution] that menstrual products shall be provided to all inmates free of charge
according to need.
Section 2. Definitions
d. The term “menstrual products” includes but is not limited to: tampons, regular or super-size;
pads with wings, regular or super size; and panty liners.
Section 3. Housekeeping Officer
1. The facility shall designate one correctional ocer as the Housekeeping Ocer.
2. The Housekeeping Ocer shall be responsible for maintaining an inventory of each menstrual
product and ensuring that adequate product is kept on hand.
3. The Housekeeping Ocer shall be responsible for bringing menstrual products to all inmates
who are unable to pick up such products themselves, including but not limited to those conned
to bed or in restrictive housing. Each instance shall be documented in writing in a unit log book
or equivalent contemporaneous record.
Section 4. Procedures
Menstrual products, including both tampons and pads, shall be readily available to prisoners/detainees
in the bathroom area. The Housekeeping Ocer will ensure daily that each bathroom is stocked with
menstrual products at all times.
Section 5. Enforcement
The warden or designee shall inspect each restroom in the facility on a weekly basis to ensure that
menstrual products are readily available to all prisoners/detainees. This inspection shall be documented
in writing.
19 This policy is adapted from the Alabama Julia Tutwiler Prison for Women. This section does not include model language for homeless shelter or
public school policies because advocates have generally not pursued policy change for access there. However, this model language could be adapted
for homeless shelters, public schools, or other publically funded buildings.
21 ACLU: Mentrual Equity Toolkit
Section VI: Case Study
Kimberly Haven is the Coalition and Policy Director for
Reproductive Justice Inside, a Maryland organization
that works for legislative reform to further the
rights of people incarcerated in women’s facilities.
Kimberly got involved in this work because of her
personal experience being incarcerated. During her
incarceration, she was in cancer-induced menopause
and therefore did not need to have access to menstrual
products. When she had a major bleeding incident, she
was waved o by custody ocers and unable to access
proper medical care. She was told that it was “normal,”
and yet she was quite literally bleeding through
three pads at a time. Additionally, she had to beg for
menstrual products from ocers, an experience she
found both humiliating and demeaning.
Desperate, Kimberly was forced to make her own
tampons out of whatever materials she could nd. As
a result, she was diagnosed with toxic shock syndrome
and had to undergo an emergency hysterectomy.
As a result of these traumatic experiences, after
Kimberly returned to the community she knew she
had to help women who were still on the inside. Her
groundbreaking work with Reproductive Justice Inside
has led to legislation that requires prisons, jails, and
juvenile detention centers to provide free and accessible
menstrual products and she was a leading voice in
the passage of a law in 2019 that ended the practice of
placing pregnant and postpartum people involuntarily
in solitary connement/restrictive housing.
Below are excerpts from our interview:
On one of the most powerful reasons that
menstrual products are necessary:“Women would
turn down visits with their children, would call their
families and say, don’t ‘come see me today,’ would turn
down visits with their attorneys when they were on
their periods. They would do this because they knew
that when you nish with your visit, you get strip-
searched. After every visit you are standing there,
you’ve got to completely get naked, spread your butt
cheeks, squat, cough, the whole nine yards. And there’s
a bloody pad to throw away. You are not going to want
to put that back up against your body and then walk
back to your housing unit. You’re not allowed to have
anything on your person so you can’t bring a pad for
replacing before you head back to your housing unit.
So there’s the fear of bleeding through your uniform
or your street jeans. Imagine bleeding through your
clothes and only having one laundry day. You have to
wash your uniform in the sink, or the “hopper” (toilet) —
and not having access to a dryer so you have to let them
air dry. It was just, a slap in the face to the dignity of
women.”
On what she would do to get policymakers’
attention on menstrual equity: “I would show people
what a handmade tampon looked like, they would
just be appalled. I would hold one up and ask them, ‘Is
this something that you would want your wife, your
daughter, your sister, your friend to put up inside her?’
Or, when I would tell them that women would tell their
family, ‘don’t come see me,’ and turn down a visit with
their attorney, that was really hard for people to hear.”
On her coalition group, Reproductive Justice
Inside: Convened in 2017, Reproductive Justice Inside
(RJI) is a statewide coalition advocating for increased
access to quality sexual and reproductive healthcare
for women and girls in Maryland’s correctional
and detention facilities. RJI aims to increase public
awareness of healthcare issues in Maryland’s
correctional systems and address conditions of
connement where systems-involved individuals are
not in complete control of their reproductive futures
and freedom.
It is “a coalition made up of advocates, formerly
incarcerated, directly impacted people, attorneys,
students, and social workers. It’s a really robust
coalition.”
On how RJI centers impacted people and decides
what issues to pursue: “Ideally we’d like to tackle
everything but we can’t. We tackle the things that we
can, the things that are most important to us and the
women we advocate with and for and optimally, where
we think we’re going to have a win. In using our lived
experiences, we go to the larger coalition and say, ‘This
is what the leadership circle would like the coalition to
work on and focus on.’ It’s an informed coalition, and
it’s also an empowered coalition. We can’t address
22 ACLU: Mentrual Equity Toolkit
everything, but we focus on the things that will have the
greatest impact on the way women do their time, the
dignity with which they are treated or not treated, the
equality issues and barriers they face. Those are the
things that we prioritize in our work moving forward.”
On framing the menstrual equity narrative:“It’s
not something that would require redening laws or in
some way causing an upheaval, this is just basic human
dignity and decency. Honestly, menstrual hygiene
products are something that people don’t want to think
about, they don’t want to talk about, and they don’t
want to have it in their face. That worked in our favor.
I love going into a room of male legislators and going,
‘I know this is squishy and it’s gonna make you squirm
and I don’t care. This is a dignity issue, and a health
imperative.’”
On the need for robust institutional reforms,
including menstrual equity, that center women
and others incarcerated in women’s facilities:
“Truthfully, our prisons are designed for men, our
policies are designed for men, our practices are
designed for men, and women have been correctional
afterthoughts for so long that anything that demands
change is like turning the Titanic in a canal. However,
this goes to the very heart and essence of dignity and
how we treat the people that are in our care, custody
and control. 95 percent of the people we incarcerate
come home. What we do to them, what we don’t do
for them or with them is what they bring back to our
community. It had to be all or nothing. And that was my
only focus — it had to be all or nothing.”
On gathering allies and media support: “There was
bipartisan support for the bill. Even the [Republican]
governor. Our bill sponsors were strong. We started
getting attention when we were doing our forums where
I would be standing in front of a room full of people and
in front of me on the podium I would have a homemade
tampon. People would be alternatively fascinated by
and also completely creeped out by it. And all I’d have
to do is hold it up and tell them what it was. It was a
great visual. And then I did the same thing when I went
to Annapolis and the Associated Press picked up the
story. The day after the Associated Press story ran, the
story ran in 76 dierent areas across the country and so
that was eective. People wanted to know more about
the issue and in Maryland how they could help support
the legislation. Sharing the lived experiences and why
it was so important and framing it through the justice
lens is what really garnered the attention.”
On the importance and risks of centering lived
experiences for people who’ve suered trauma: In
the forums and hearings, “it was impacted people who
were telling their story, whether it was me telling my
story, or other women who had gone through similar
things telling their story. There was a mother who was
there talking about her daughter and the frustrations
that her daughter faced with accessing these products.
That was eective. When we were in Annapolis
testifying during bill hearings, it was the women’s
stories and again it was the visual of that handmade
tampon that really helped.
“I would oer one caveat to asking people to share their
stories. When you’re asking about menstrual hygiene
or talking about some of the other issues women are
facing while they’re incarcerated, you have to be
prepared to help them manage the trauma that it may
open up again. Legislators thrive on hearing the stories
and so we tried to do a very delicate balance, getting
people to tell their stories in a way that gives them the
ability to work through their stories, to be eective at
telling their stories, to use their story to help shape the
narrative but also being very clear that we recognize
that it might come at a cost to them and we have to be
very aware and tuned into that.”
On the reforms that were needed after the bill
passed: “Our bill went into eect October 1 of last
year. And there are still problems. There is no reporting
piece to it. In April, women were still having to buy
tampons o of commissary, and women are paying
street prices for less than street quantity and indigent
women can’t aord it. If [they] don’t have money, if
people aren’t putting money on [their] book, [they]
might be working in the institution, but [they] still have
to choose between stamps to write to [their] kids, soap,
shampoo, or menstrual hygiene products. No. That was
not the intent of the bill. The bill mandated free and
accessible products.
23 ACLU: Mentrual Equity Toolkit
“And the bill include[s] all menstrual hygiene products,
not just sanitary pads but tampons, pantiliners, and so
on.
“In doing scans of our local jurisdictions, which are also
impacted by this legislation and are also mandated to
do this, some of them make tampons available. And
then there are other jurisdictions that say, we make
sanitary pads available to them and all they have to do
is ask for them. This is not what the bill language says —
and we are concerned about the access issues and how
women obtain them.”
On facilities that say they can’t aord menstrual
products: “No woman who is in the care, custody, and
control of an institution of a state should have to pay
for these products, and honestly, I wish I could say to a
facility if you can’t aord to give them what they need,
you have to let them go. Facilities have the resources
to provide these things — they just need to do the right
thing.”
On how to follow up when the law is implemented
without a reporting requirement: Kimberly is
emphatic that passing a law is not enough — advocates
also need to monitor implementation. She advises
that one way to monitor is to get public records from
the facilities. “What happens is that administrations
may tell us one thing, then we hear something dierent
from someone who is incarcerated and the truth is
somewhere in the middle. For us the information we
would want is the daily population broken out by age,
the amount of products that are ordered, and how
often they’re ordered, to gure out if they’re actually
ordering enough, and what products are actually there.
Is it just sanitary pads or are institutions starting to
look at pantiliners and tampons? We need to get those
facts and actually get public safety in every county,
jurisdiction to report out on those numbers. Once we
have that, then we have a clear vision of exactly what’s
happening around this one particular issue and what
reforms need to happen, what education needs to
happen.”
On what she wishes she’d known about
the diculty of getting information about
compliance: “We have a bill, so now it’s just a question
of ensuring compliance and that’s going to require
transparency and reporting. That’s the next stage of
that bill that we’re getting ready to embark on here
in Maryland. Had I known that it was going to be this
problematic with getting information and making sure
that it actually happened, I would have fought harder
for a reporting bill. Now it’s had almost a year to be
in play. Now there’s no excuse for [them] to not be”
following the law.”
On what she wishes she’d known before the bill
passed: “That it was going to be so dicult to make
sure that the local jurisdictions are compliant. Counties
are a very dierent breed. They believe that they can
operate in their own world, but our bill applies to them
as well. There’s not a coordinated eort to ensure their
compliance and I wish I had known that getting them to
be compliant would be as much of a problem as it is.”
On what advocates need to know: “Be as
comprehensive as [you] possibly can. Look at the
states, whether it’s Maryland or any of the other states
that have passed similar dignity legislation. Talk to
the advocates on the ground there, to get their best
practices, to get their lessons learned, and messaging.
Keep the people with the lived experience shaping the
narrative.”
On what’s next for menstrual equity in Maryland:
“A menstrual equity for all bill, and the strategy for that
is going to be that in buildings and agencies that get
state funding, they also have to make these menstrual
hygiene products free and accessible to women. So
women who are going to social services, who are going
to courthouses, who are going to county oce buildings
and city oce buildings and state oce buildings, they
have to make these products available to them as well,
and that includes our public schools. We’re going to do
something here in the city of Baltimore and then pilot
it in some jurisdictions across the state and depending
on how that pilot program goes, then we’ll probably be
introducing state-wide legislation around menstrual
equity for all in 2021. I’d love to do it in 2020, to be
perfectly honest, but that’s just the ghter in me.”
