See You in Court, Michigan. The Tampon Tax Is Discrimination | Opinion

This has been a monumental week for gender equality in America. Joe Biden announced his selection of Kamala Harris as running mate, days before the centennial of the 19th Amendment and the kickoff of the Democratic National Convention.

Also this week, three women filed a class-action lawsuit claiming discrimination on the basis of sex by the state of Michigan and its Department of Treasury.

The crux of the case? That Michigan's imposition of sales and use taxes on the purchase of menstrual products—commonly known as the "tampon tax"—violates the Equal Protection clauses of the United States and Michigan Constitutions. The plaintiffs seek to represent millions of Michiganders forced to pay the 6 percent sales or use tax on these products, amounting to nearly $7 million per year.

In addition to asking the court to declare the taxation of menstrual products unconstitutional, the lawsuit also calls upon the court to order the state to issue refunds to class members of the sales and use tax levied over the past four years—a hefty price tag, over $25 million potentially owed.

"The devastation wrought by the coronavirus pandemic has only amplified the impact of this unfair and regressive tax," opens the complaint. Even before the health and economic crisis struck, Michigan women earned 77 cents for every dollar a Michigan man earned. As we enter what's been dubbed "America's First Female Recession," we're seeing, too, all the ways women are disproportionately represented in the front-line workforce, risking their lives to provide health care, child care and other underpaid yet essential services.

"The tampon tax has always been an unfair burden, but it's even more punitive for the state to raise money off purchases people are struggling to afford," said one of the plaintiffs, Emily Beggs, who volunteers for the nonprofit I Support The Girls, which distributes menstrual products to local relief organizations and shelters. Beggs said she has seen demand increase by over 50 percent since the pandemic reached Michigan in March. Melina Brann, executive director of the Women's Center of Greater Lansing, echoed that sentiment: "The inability to afford or access menstrual products is compromising the safety and dignity of many in our community."

Michigan is one of 30 U.S. states that still impose the tampon tax. During her campaign for governor, Gretchen Whitmer strongly supported eliminating the tax. Recognizing and calling out discrimination when she saw it, she tweeted, "Stop taxing women for being women." Yet, three years later, Whitmer's Department of Treasury still does just that.

The Michigan legislature has considered eliminating the tampon tax every year since 2016—there's bipartisan backing for doing so—but the measures have never been put up for a vote. Yet, as the lawsuit points out, the administration does not need to wait for legislation. Michigan's Treasury Department already has the power to stop imposing this unconstitutional tax—and, in fact, has used this power before to avoid levying taxes unconstitutionally.

Though Michigan has lagged, an array of bipartisan leaders nationwide have stepped up. Ten states eliminated the tampon tax over the past five years, bills passed and signed by Republicans and Democrats alike. Since 2016, Connecticut, Florida, Illinois, New York, Ohio, Utah and Washington all moved legislation; Nevada took the vote directly to the people via a 2018 statewide ballot measure; Rhode Island's exemption for menstrual products was cemented as part of the state budget; and California started exempting menstrual products this year, but only through a temporary budget measure slated to expire in July 2023. Some local governments have eliminated the tax, too: Chicago, Denver and the District of Columbia.

Capitol Building, Lansing, Michigan
Michigan is one of 30 U.S. states that still impose the tampon tax. RiverNorthPhotography/iStock/Getty

Even dysfunctional Congress has advanced the cause. As part of the CARES Act, signed by the president in March, menstrual products were classified as medical necessities, making them eligible for purchase with pre-tax Flexible Savings Account and Health Savings Account dollars. Donald Trump and Mitch McConnell cut taxes on menstrual products. Why hasn't Michigan?

Constitutional law scholars around the country recognize that the tampon tax is more than just bad policy—and that it is unconstitutional. "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," Dean of UC Berkeley School of Law Erwin Chemerinsky wrote in a Los Angeles Times op-ed, "Yet that is exactly the effect of the so-called tampon tax." This argument necessarily includes the experience of non-binary and transgender individuals, as well, many of whom face considerable burdens and costs to accessing menstrual products.

With this new lawsuit, Michigan now must decide whether to defend its imposition of a punitive and discriminatory levy—explaining exactly why the state will not eliminate the tampon tax despite having the legal authority and moral obligation to do so. Issuing compulsory refunds will only make Michigan's precarious fiscal situation worse, so the legislature should consider this issue as it crafts a budget this fall.

It is 2020 and time for the tampon tax to go. It is wrong for Michigan, or any state, to tax and profit off our periods. Period.

Jennifer Weiss-Wolf is vice president and women and democracy fellow at the Brennan Center for Justice at NYU Law, as well as author of Periods Gone Public: Taking a Stand for Menstrual Equity. She is co-founder of Period Equity, which is among the entities that represent the plaintiffs in the Michigan lawsuit.

The views expressed in this article are the author's own.​​​​​​​​​