The first and most obvious reason why the taxation of menstrual products such as tampons, pads and pantyliners—more commonly known as the tampon tax—should end has nothing to do with equity, public policy, or the Constitution—although, as discussed below, those all provide powerful additional arguments for the same result.
Rather, under elementary principles of administrative law, the comptroller’s own regulations already prohibit the taxation of menstrual products. Comptroller Rule 3.284 includes wound-care dressings among the drugs and medicines that are statutorily exempt from taxation. That rule defines a wound-care dressing as “an item that absorbs wound drainage, protects healing tissue, maintains a moist or dry wound environment (as appropriate), or prevents bacterial contamination.”
Menstrual products fit that definition to a tee. Although some may think of menstrual products as a modern convenience, they are in fact a medical necessity, according to the expert report of Dr. John Irwin filed by Baker Botts in support of the tampon tax challenge. Irwin is an obstetrician and gynecologist with over 40 years of experience; he is also the former chief of surgical service from 2000 to 2016 at the Women’s Hospital of Texas in Houston’s Texas Medical Center. His report states that, medically speaking, menstruation creates what is in effect an open wound in the uterine cavity. Menstrual products wick away and absorb the resulting drainage and thereby protect the healing tissue from bacterial contamination.
Additionally, menstrual products maintain a healthy environment for the sensitive vulvar tissue by absorbing moisture into their inner layer while maintaining a relatively dry outer layer. In other words, using the terms of Rule 3.284, menstrual products “[absorb] wound drainage, protect healing tissue, maintain a moist or dry wound environment (as appropriate), [and] prevent bacterial contamination.”
And that covers only the routine menstrual uses of menstrual products. They also serve other indisputably medical functions such as in cases of vaginitis and following surgeries such as a hysterectomy, child birth, and vulvar cancer treatment.
Nor, to be clear, are there safe alternatives to menstrual products. According to Irwin’s report, use of gauze, toilet paper, or other similar kinds of substandard substitutes could work to absorb moisture at some level, but also would create an unhealthy environment of constant wetness due to absence of the unique wicking properties of menstrual products. That, in turn, could result in a number of adverse outcomes, including toxic shock syndrome, sepsis, and death.
The Texas Comptroller’s historical application of Rule 3.284 provides further support for the conclusion that menstrual products qualify as wound-care dressings. The comptroller has broadly interpreted the definition of wound-care dressing to include, inter alia, gauze, bandages, corn cushions, callus removers, skin staples, and eye shields. While some of these items, like gauze and adhesive bandages, evoke traditional images of wound care, items such as eye shields, corn cushions, and callus removers do not. Menstrual products—as the word hygiene itself underscores—are specifically designed to prevent bacterial infection by ensuring that blood, vaginal discharge, or other moisture is wicked away from the skin’s surface and therefore certainly have a greater claim to wound-care-product status than corn cushions and callus removers. If those qualify as wound-care products, then menstrual products qualify even more so.
The tampon tax is constitutionally infirm as well. It runs afoul of the Texas Constitution’s mandate that “[e]quality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.” Specifically, the comptroller’s exclusion of menstrual products from tax-exempt treatment while granting it to similar gender-neutral products and other male-specific products like libido enhancers is impermissible sex-based discrimination. Additionally, the tampon tax also violates the Texas Constitution’s requirement that “[t]axation shall be equal and uniform.”
While states generally have broad powers to impose or collect taxes, they must not make classifications among taxpayers that are arbitrary, unreasonable, or capricious. The tax on menstrual products fails that test because the comptroller has no rational basis for its disparate treatment between gender-neutral blood absorption products and menstrual blood absorption products.
Lastly, beyond the strictly legal arguments, the discriminatory tax treatment of menstrual products is exceedingly poor public policy. Non-medically necessary products like male libido enhancers and prostate vitamins are tax-exempt in Texas, but medically necessary menstrual products are not. It thus is not hyperbole to say that the Texas Comptroller is favoring the male sex drive over the safe and effective management of menstruation. That is indefensible; no one can seriously maintain that is part of any rational system of taxation.
The tampon tax fails at every level. It is bad administrative law because it is antithetical to the text and historical application of the comptroller’s own regulations. It is bad constitutional law because it irrationally discriminates against women. And it is bad policy because women’s unique medical needs should not be treated as less important than the male sex drive. It is time for the tampon tax to end.
Baker Botts LLP represents Sahar Punjwani and the Texas Menstrual Equity Coalition on a pro bono basis in their challenge to Texas’ taxation of menstrual products. The dispute is currently being litigated in an administrative challenge before the Texas Comptroller of Public Accounts.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Meghan McElvy is a partner at Baker Botts’ Houston Office. She represents clients in a broad range of matters, with a primary focus on energy litigation and regulatory proceedings.
Laura Shoemaker McGonagill is an associate at Baker Botts’ Houston office. She handles energy and tort disputes in state and federal courts, as well as in domestic and international arbitrations.
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