New York is one of forty states that taxes tampons and pads while exempting products like hair growth cream and foot powder from taxation. But a new class action lawsuit filed last week is challenging the state's tax code, calling it unconstitutional and discriminatory.
The lawsuit charges that New York's feminine hygiene product tax, dubbed "the tampon tax," violates the Equal Protection clauses of the state and US constitutions because it establishes different rules for products used by women and by men. The New York Department of Taxation and Finance and its commissioner, Jerry Boone, have been named as defendants.
"The tax is a tax on women," says Natalie Brasington, one of the five plaintiffs in the case. "It's discriminatory and it's illegal."
Under New York state tax code, tampons, pads, and other feminine hygiene products are taxed because they're "generally used to control a normal bodily function and to maintain personal cleanliness." The only way a product isn't taxed, though, is if it's medically necessary — say, a topical cream for treating a vaginal infection (the example the Department of Taxation uses in its 2014 guide for drugstores and pharmacies).
But, the case argues, New York imposes "a double standard when defining medical items for women and men" for tax exemption. While women—as well as trans men and non-binary people—use tampons and pads for health reasons, the state tax department defines these products as "generable merchandise." Yet the agency classifies Rogaine, dandruff shampoo, adult diapers, and incontinence pads—items also used by men—as "medical supplies," and thus tax exempt.
There's no question that these products would not be taxed if men had to use them.
The lawsuit calls this difference "irrational" and claims that "the intent to discriminate" can be easily inferred.
"There's no question that these products would not be taxed if men had to use them," says Zoe Salzman, an attorney with law firm Emery Celli Brinckerhoff & Abady, which filed on behalf of the plaintiffs.
The suit seeks to eliminate the state's tampon tax and also demands a full tax refund for the millions of New Yorkers who bought pads and tampons in the past year. In all, the tax nets the state about $14 million annually—less than 1 percent of its 2015-2016 budget, according to the lawsuit.
Beyond gender discrimination, the tampon tax also has real economic implications. The lawsuit states women on average spend $70 or more per year on tampons and pads, which should be changed every four to eight hours in order to decrease the risk of disease and infection like toxic shock syndrome. Over a lifetime, a menstruating person can spend nearly $1,800 on tampons alone, according to Huffington Post. Add the state's 4 percent sales tax to each purchase (8.875 percent if you live in New York City) and that can mean having to choose between paying rent or paying for menstrual care for many low-income women.
"There are women making decisions about their own health versus providing for their own family," says Brasington, a 31-year-old photographer living in Harlem. "It's disrespectful to them to say that something that is necessary and need[ed] every month is a luxury."
It's disrespectful to say that something that is necessary and need[ed] every month is a luxury.
In response to the lawsuit, Governor Andrew Cuomo said that he believes the tax should end and that he'll work with the state legislature to do so. It's the first time Gov. Cuomo commented on the matter, despite the public fervor over legislation introduced last spring.
However, Gov. Cuomo can eliminate the tampon tax right now, asserts Salzman. State law already provides for classification of menstrual products as medical necessities since they are "consumed … for the preservation of health," she says. All Gov. Cuomo would need to do is instruct Commissioner Boone to follow the law.
"It's really in the governor's hands," says theater and film writer and editor Laura Strausfeld, who developed the case's legal theory when she was a practicing attorney.
In addition to New York, lawmakers in Chicago, Utah, Ohio, California and Wisconsin have introduced legislation to remove the tampon tax. Last month, though, an all-male committee in Utah voted 8-to-3 against eliminating the state's tax on feminine hygiene products.
The suit is one part in a broader strategy to achieve global menstrual equity, says Jennifer Weiss-Wolf, vice president for development of the Brennan Center for Justice at NYU Law. The hope is the lawsuit will push lawmakers to "move quickly" to end the tax, while also elevating "the dialogue around what is fair and what is equitable when it comes to women's health and menstrual policy," she adds.
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To that end, the plaintiffs hope to turn the refunds into philanthropy. The idea is to create a mechanism for people who receive part of the awarded damages to donate the money to shelters and other organizations serving low-income to no-income women and girls who need access to menstrual products.
"It's a great way to show solidarity and support," says Brasington.