Michigan’s ‘tampon tax’ challenged in new lawsuit

Originally published by The 19th

A new lawsuit filed in Michigan on Tuesday is challenging the legality of allowing a sales tax on menstrual products, setting up the next phase in a national movement to end the so-called tampon tax.

The suit claims that Michigan’s 6 percent sales and use tax on menstrual products violates the equal protection clauses of the United States and Michigan constitutions.

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The litigation, brought by three Michigan women with the help of the nonprofit Period Equity, is a flashpoint in the movement toward getting menstrual products exempt from states’ sales taxes. Although several states and legislatures have taken policy action in recent years, 30 states still tax menstrual products.

Period Equity was involved in a similar lawsuit out of New York several years ago. It is credited with spurring the governor there to sign a sales tax exemption on menstrual products into law, ending the suit. The group anticipates taking additional legal action in other states in the near future if policy makers do not act.

“We’ve shifted now to this legal argument not just to bolster the policy argument, but to give it a red underline that it’s not just a matter of good or bad policy … but that what they’re doing is actually illegal,” said Jennifer Weiss-Wolf, a co-founder of Period Equity.

The lawsuit, filed in the Michigan Court of Claims, names Emily Beggs, Clare Pfeiffer and Wei Ho as plaintiffs. The state of Michigan and its department of treasury are listed as defendants.

Attorneys for the plaintiffs are seeking class-action status in the lawsuit, and they are asking the court to order the state to issue refunds, totaling $25 million, to people impacted during a four-year period by the sales tax.

The effort to remove this taxation is part of the menstrual equity movement. Activists have been making the argument for years that it’s unfair for states to apply sales taxes on menstrual products. The lawsuit is taking it a step forward by arguing it’s sex-based discrimination.

Although cisgender women are often centered in this debate, they are not the only ones who are impacted by the taxes. Weiss-Wolf said in a piece with the ACLU that it’s important to acknowledge the experiences of transgender and non-binary people who menstruate or who may otherwise need menstrual products. Weiss-Wolf said many of them face additional burdens and costs to accessing menstrual products.

“Grassroots activism is extraordinarily inclusive of all who menstruate,” she told The 19th. “We’re doing our part to make sure that the legal arguments follow their lead.”

Menstrual products are also a medical necessity, as reflected in recent policy. Under the CARES Act passed by Congress at the beginning of the coronavirus pandemic, menstrual products are deemed medical necessities so they can be included in flexible spending accounts and other health insurance-related spending.

Joanne Faycurry is an attorney at Schiff Hardin, a law firm in Michigan that is a co-counsel on the lawsuit. She said Michigan’s sales tax on menstrual products is discriminatory because other items that the state deems a medical necessity are exempt from these taxes.

“It is indisputable that menstrual products are medical necessities and are essential to women,” she said. “The fact that we don’t exempt medical necessities that are applicable solely to women … is discrimination on its face.”

In 2016, the American Medical Association said it supported legislation to remove all sales tax on what it described as feminine hygiene products.

When President Barack Obama was asked that same year about taxation on menstrual products, he said: “I have to tell you, I have no idea why states would tax these … I suspect it’s because men were making the laws when those taxes were passed.”

Laura Strausfeld, an attorney and co-founder of Period Equity, said when tax policy was implemented decades ago, it was spearheaded by people who were not representing the interests of people who menstruate.

“It was an oversight that menstrual products were taxed,” she said. “It was deliberate indifference.”

Clare Pfeiffer has made menstrual equity a family affair. Over the years, her children have been in her car while it was full of menstrual products that she delivered through her volunteer work for I Support the Girls, an organization with chapters around the country that helps provide bras, tampons and pads to people in need.

Pfeiffer often gets text messages from friends, asking if she’s collecting items.

“I now kind of have this identity as the ‘tampon-bra-pad lady.’” she said. “Which is fine. I’m totally good with it.”

Pfeiffer, 45, said she sees first-hand how access to menstrual products helps low-income people in particular. It’s why she decided to join the lawsuit.

“I think it resonates with women when you start thinking about other women in this situation not having those basic needs met,” she said.

Another plaintiff in the lawsuit, Emily Beggs, 44, also volunteers for I Support the Girls. She said when the coronavirus pandemic hit in March she saw an uptick in demand for menstrual products.

“Women shouldn’t have to make choices between feeding their families for the week and going out and buying a package of pads and a box of tampons,” she said.

There is legislation in the Michigan legislature to exempt menstrual products, but it has not advanced. Gov. Gretchen Whitmer, a Democrat, has offered support. In 2017, during her gubernatorial run, she tweeted about related legislation and added: “Stop taxing women for being women.”

Stacy Dickert-Conlin, a professor of economics at Michigan State University, has studied the ways in which taxation impacts low-income individuals. She said while the sales tax in Michigan represents a small amount of money in the short-term, it comes down to fairness.

“Given where we are in the current tax system, the decisions that my state and other states have made about what should and shouldn’t be taxed, this seems like an equity issue to me,” she said.

Others argue that Michigan’s 6 percent sales or use tax amounts to nearly $7 million per year. Period Equity estimates that all together, taxes on menstrual products generate more than $125 million annually in states that still allow it.

Any opposition to exempting menstrual products from sales tax has previously centered on the potential ramifications of adding new items to the list of tax-free goods. In 2017, the Tax Foundation argued in part that exempting menstrual products shrinks revenue, which leads to higher overall sales tax rates.

“There’s just a sense that this piecemeal decision, of exempting some products from taxes is not the way to go … it leads to a slippery slope, or you have people then saying, ‘Well, what about this? And what about this?” said Dickert-Conlin, who reiterated she supports eliminating the taxation of menstrual products.

Weiss-Wolf has written about how items like golf club memberships and bingo supplies are tax-exempt in some states. And Strausfeld noted that the Tax Foundation has not highlighted the issue in years.

“It’s not the way people are arguing about this anymore,” she said. “I think if there’s opposition, they’re really saying … ‘The budget is very tight.’ Or they’re not discounting it, they’re sort of putting us off and saying, ‘The time will be right, it’s just not right now.’”

Strausfeld scoffed at the notion that this should be put off any longer. She said the unfairness of sales taxes on menstrual products has been a topic since she was a law student in the late 1980s.

“People who have known me all my adult life have [also] been angry …. about the tampon tax,” she said.

Through their “Tax Free. Period” initiative, Period Equity has warned other states that its policymakers have until 2021 to take action.

Strausfeld said her organization has helped push several states, either through legislatures or other policy action, to add menstrual products to the sales tax exemption list. Ohio recently changed its law. In Maine, the legislature passed a bill, but the governor hasn’t signed it. In Vermont, the bill hasn’t been brought to a vote.

“I really hope that states are on notice that this really has to end,” she said. “It should have never happened.”

Weiss-Wolf said the dynamics around racial justice and equality make it impossible for states to turn away from the burden here.

“If not now, when, in terms of really demanding our voices and perspective be heard,” she said.