The Unconstitutional Tampon Tax

Thirty-five states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax--commonly called the “tampon tax”--represents an expense that girls and women must bear on top of the cost of biologically necessary items that they need in order to attend school, work, and otherwise participate in public life. This article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any disadvantageous tax classification of these products amounts to a facial classification on the basis of sex. There is no “exceedingly persuasive justification” for taxing menstrual hygiene products, and so the tax must fail intermediate scrutiny. Even assuming arguendo that the tampon tax is not viewed as a tax on female sex, it is still unconstitutional because it cannot pass rational basis review. Since 2016, four states and the District of Columbia have legislatively repealed their sales tax on menstrual hygiene products. One state, Nevada, did so by ballot referendum in 2018. Other states will consider repeal bills in upcoming legislative sessions or may consider ballot initiatives in the future. Women have also brought class action litigation in four jurisdictions, seeking declarations that the state tampon tax is unconstitutional and requesting refunds of prior taxes paid. The article develops the constitutional arguments that can be used by litigators in any ongoing or future case, recognizing that menstrual equity activism, including impact litigation, is likely to continue in the future. Ultimately, what and whom a society seeks to tax signal its larger values. The continued imposition of state sales tax on menstrual hygiene products, seemingly without a principled distinction from other products that are exempted as necessities, exacerbates the aggregate economic inequality that already exists between the sexes. The tampon tax is unconstitutional and should be repealed in all states