Tampon Tax: California's Budget Tweak is Not Enough—the Practice Should Be Banned Nationwide | Opinion

California Governor Gavin Newsom announced a series of fiscal reforms this week, geared toward low-income women and families, ranging from an exemption of baby diapers from state sales tax, to an income tax credit and other child care subsidies for parents.

Among the most popular provisions in his budget package is the state's elimination of sales tax on menstrual products. His move to scrap the "tampon tax," as it is called, elicited cheers from activists across the country who have made the issue a cornerstone of the broader fight for menstrual equity.

In recent years, dozens of state legislatures, including in California, have moved to eradicate the tampon tax. Five have succeeded: Connecticut, Florida, Illinois, and New York passed laws to codify it; citizens of Nevada voted in favor of a ballot measure to do the same. (Another ten don't tax these products as a general matter, making the current tally 35 states that fail to exempt menstrual products.)

The fight has gone global, too, with new tax laws passed in diverse nations and economies, including Australia, India, Malaysia, and South Africa, among others. A campaign in Germany is now selling tampons packed neatly in bound books, to protest the vast discrepancy in the taxation of menstrual products at a standard rate of 19 percent versus the reduced seven percent applied to items considered necessary for basic living; the latter rate includes reading materials, as well as flowers and oil paintings. (Tampon bouquets anyone?)

In fact, California was the first U.S. state to take up the issue in 2016, debuting a tampon tax bill on January 4 of that year on the opening day of the legislative session. It received much public fanfare, even eliciting a shout-out from President Obama at the time. After achieving unanimous passage in the senate and assembly, Governor Jerry Brown issued a disappointing veto. Because the bill came to his desk packaged with seven other tax breaks totaling $300 million, he allowed none of them, arguing austerity. The Los Angeles Times gave him an easy out, running an editorial earlier that year, "Keep Taxing Diapers and Tampons"—in which they relegated menstrual products to the category of things that are nice to have, important but not required, such as deodorant, even while tellingly acknowledging the tax-exempt status of Viagra as a reasonable way to "improve quality of life."

The fight continued in 2017, led by Assembly Member Cristina Garcia with the introduction of California's Common Cents Tax Reform Act. The bill coupled the exemption for menstrual products with a clever provision to increase the tax on hard liquor, making the case that any lost revenue should rightfully be collected on booze since "liquor is a choice and a luxury, but biology is not." The bill failed and The Washington Post reported, "There's No Happy Hour for Menstruation."

Bills have been put forth in 2018 and 2019 too, but now Governor Newsom has stepped out ahead of the legislature. His proposal would last for the duration of the next budget, beginning in January 2020 and extending through 2025. "We can afford to do that and it's the right thing to do," he stated. And while he should be commended for his willingness to take on an issue that has been unnecessarily volatile in the Golden State, the dollars and cents are only half the story.

Rather, the sales tax-exempt status of menstrual products must be permanently enshrined into law, not a one-off budget line that can ebb and flow at the whim of the state's leadership or in light of its fiscal health. As a matter of good policy, taking on and taking down the tampon tax has the potential to accomplish four key objectives: it lifts a small financial burden; it challenges laws that are archaic; it helps inch toward a model of economic parity and gender equity; and it is a gateway for getting people to talk and think about the wider implications of menstruation—social, economic, and otherwise—in the public sphere.

But as a matter of matter of law, the argument extends far deeper. Numerous legal scholars, including California's own Erwin Chemerinsky, Dean of UC Berkeley Law, argue that the tampon tax also amounts to sex-based discrimination in violation of equal protection, at both the state and federal level—making it more than merely unfair or inequitable, but potentially illegal and unconstitutional.

This is a critical shift: Rectifying the tampon tax isn't merely a matter of offering a time-limited, discretionary budget line—a well-intentioned gesture from a sympathetic governor. Rather, it is state-sanctioned discrimination that needs to be permanently eradicated by legislatures. Full stop. Period.

California joins other states and nations in publicly acknowledging that menstruation impacts half the population at some point in their lives – often month after month, year after year – and the ability to be productive students, employees, and members of society. Lifting the discriminatory tampon tax isn't a budgetary option. It is a legal mandate.

Jennifer Weiss-Wolf is vice president and women and democracy fellow at the Brennan Center for Justice at NYU Law, and author of Periods Gone Public: Taking a Stand for Menstrual Equity.

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

Tampon Tax: California's Budget Tweak is Not Enough—the Practice Should Be Banned Nationwide | Opinion | Opinion