No More Bloody Taxes: Growing Opposition to the “Tampon Tax”

Victoria Dickson, KLJ Staff Editor[1]

“A tax on wearing yarmulkes is a tax on Jews.”[2] A class action lawsuit filed earlier this month by a group of five women in New York quotes the late Justice Antonin Scalia to allege that the state’s sales tax on feminine hygiene products violates the Equal Protection Clause of the United States and New York Constitutions.[3] The plaintiffs argue that the tax places an unfair burden on women since products used by both genders, such as lip balm and dandruff shampoo, are exempt from taxation under a medical products exemption while tampons and sanitary pads are not.[4]

These plaintiffs are not the only ones calling for the abolition of the “tampon tax.” Last June, Canada became the first country to repeal its sales tax on feminine hygiene products, sparking a worldwide discussion the appropriateness of taxing menstrual products.[5] Illustrating the growing discontent with the tax is the popularity of social media campaigns like “#periodswithoutshame” and “#endtampontax” and various online petitions, including one started by Cosmopolitan Magazine with over 58,000 signatures, demanding that legislators axe the tax.[6] Even President Obama has commented on the issue, questioning the rationale for taxing tampons and menstrual pads as luxury items.[7] Following Canada’s lead, the U.K. announced last week that the country would abolish its five percent tax on menstrual hygiene products.[8] Nevertheless the tampon tax is still alive and well in the U.S.: forty states (including Kentucky) tax feminine hygiene products, five exempt the products from their sales tax, and the other five have no sales tax at all.[9] However, in response to the recent public debate about the tax, several states, such as Ohio and Virginia, are considering legislation to drop the taxes,[10] and last week, the Chicago City Council unanimously voted to rescind the city sales tax on tampons and sanitary pads.[11]

Like most states that tax menstrual products, Kentucky imposes a 6% sales tax on all tangible personal property[12] but allows exceptions for certain necessities or “non-luxuries” such as food[13] and prescription medical supplies.[14] However, hygiene products are specifically excluded from coverage under the medical products exception.[15]

Considering the recent legislative decisions worldwide abolishing the tax and the New York class action suit begs the question: could Kentucky women, like the New York plaintiffs, challenge the state’s sales tax for violating the Equal Protection clauses of the Fourteenth Amendment and Kentucky Constitution?[16]

The Supreme Court of the United States has held that it does not violate the Equal Protection Clause for states to distinguish between different classes of people so long as the classification is rationally related to a legitimate governmental purpose.”[17] Importantly, federal courts typically are deferential to the state legislatures regarding taxation matters and give them “broad latitude” to create classifications and distinctions in tax statutes.[18] Kentucky courts are split as to whether the classification standards under the Kentucky Constitution are coterminous with or more rigorous than the federal constitutional standard.[19] However to satisfy the stricter standard, a classification must be supported by a “distinctive and natural reason.”[20]

With these standards in mind, a court would then consider the state’s purpose in taxing feminine hygiene products. While discriminating against women would not be a permissible purpose,[21] administrative convenience in raising revenue for the state would likely be upheld as legitimate.[22] Furthermore, to prove that a classification is impermissible, a plaintiff must show that the classification exists on the face of the law (the law in its very terms draws a distinction among people based on a particular characteristic) or that the law has a discriminatory impact and a discriminatory purpose behind the law.[23]

Unlike the New York tax, which exempts products like Rogaine, chapstick, adult diapers, and incontinence pads as medical items yet still taxes tampons,[24] the Kentucky medical items exemption is limited to prescription products like oxygen tanks and diabetic supplies.[25] Thus, challenging the Kentucky tax may be harder than challenging the New York statute.

Regardless of the tax’s constitutionality, the tampon tax adds up. For example, woman in Kentucky can buy a box of tampons for around $4.00 and the 6% sales tax on that box is 25 cents. A woman who buys a box of tampons every month for the forty or so years that she menstruates will spend $120 in sales tax on those tampons. And that figure doesn’t even include the price of the tampons themselves. Those arguing against the tampon tax point out that not only is the tax a burden unique to women, but that the tax also has significant consequences depending on a woman’s socio-economic status. As some commentators have noted, “since necessities make up a larger proportion of poor folks’ spending, sales taxes can be considered regressive; they make it even harder for people in poverty to eke out a comfortable, dignified living.”[26] In addition to being subject to sales tax, feminine hygiene products are also not covered by food stamp or SNAP programs.[27] Perhaps the global push to end tampon taxes will encourage additional discussion on this topic so that one day all women can have equal access to essential products. For now, in the court of public opinion, government entities that abolish the tampon tax will continue to be praised for not making women pay extra for their periods.

[1] J.D. expected May 2017.
[2] Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993).
[3] New York State Department Of Taxation And Finance Sued Over Tampon Tax, 2016 State Tax Today 44-24 (Mar. 7, 2016).
[4] Colleen Long and Jennifer Peltz, Tampon tax: Does being female in the US carry unfair costs?, Washington Post (Mar. 9, 2016), https://www.washingtonpost.com/national/health-science/tampon-tax-does-being-female-in-the-us-carry-unfair-costs/2016/03/09/921ee266-e629-11e5-a9ce-681055c7a05f_story.html.
[5] Taryn Hillin, These are the U.S. states that tax women for having periods, Fusion (Jun. 3, 2015 12:33 PM), http://fusion.net/story/142965/states-that-tax-tampons-period-tax/.
[6] Petitioning U.S. State Legislators: No Tax On Tampons: Stop Taxing Our Periods! Period., Change.org (last visited Mar. 24, 2016), https://www.change.org/p/u-s-state-legislators-stop-taxing-our-periods-period; see also Morgan Shoaff, The ‘tampon tax’ is real: These are the 40 states taxing periods., Upworthy (Dec. 7, 2015), http://www.upworthy.com/the-tampon-tax-is-real-these-are-the-40-states-taxing-periods?c=bl3.
[7] Elise Foley, Obama Pretty Sure Clueless Men Are The Reason Tampons Are Taxed As Luxury Items, Huffington Post (Jan. 15, 2016 3:57PM), http://www.huffingtonpost.com/entry/obama-tampon-tax_us_569950f0e4b0778f46f94d97?section=politics.
[8] Dominique Mosbergen, U.K. Vows To Abolish ‘Tampon Tax’ After European Union Vote, Huffington Post (Mar. 21, 2016 1:57 AM), http://www.huffingtonpost.com/entry/uk-tampon-tax_us_56ef7e1ce4b03a640a6aeb99.
[9] Colleen Long and Jennifer Peltz, Tampon tax: Does being female in the US carry unfair costs?, Washington Post (Mar. 9, 2016), https://www.washingtonpost.com/national/health-science/tampon-tax-does-being-female-in-the-us-carry-unfair-costs/2016/03/09/921ee266-e629-11e5-a9ce-681055c7a05f_story.html.
[10] Chris Isidore, Chicago drops tampon tax, WLKY (Mar. 17, 2016 8:57AM), http://www.wlky.com/money/chicago-drops-tampon-tax/38559462.
[11] Id.
[12] Ky. Rev. Stat. Ann. 139.200 (West 2016); Ky. Rev. Stat. Ann. 139.310 (West 2016).
[13] Ky. Rev. Stat. Ann. 139.485 (West 2016).
[14] Ky. Rev. Stat. Ann. 139.472 (West 2016).
[15] Id.
[16] U.S. Const. amend. XIV, § 1; KY Const. §59.
[17] Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2079 (2012).
[18] Id.
[19] Commonwealth Revenue Cabinet v. Cope, 875 S.W.2d 87, 89 (Ky. 1994).
[20] Id.
[21] Reed v. Reed, 404 U.S. 71, 76 (1971) (explaining that a classification must be “reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”)
[22] Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2081 (2012) (elucidating that “ordinarily, administrative considerations can justify a tax-related distinction.”)
[23] See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 274 (1979) (finding that a discriminatory impact alone is insufficient to prove a gender classification; there also must be proof of a discriminatory purpose.)
[24] New York State Department Of Taxation And Finance Sued Over Tampon Tax, 2016 State Tax Today 44-24 (Mar. 7, 2016).
[25] Ky. Rev. Stat. Ann. 139.472 (West 2016).
[26] Christina Cauterucci, Tampons Shouldn’t Be Tax Free. They Should Be Covered by Food Stamps and Medicaid., Slate (Mar. 16, 2016 2:46 PM), http://www.slate.com/blogs/xx_factor/2016/03/17/tampons_shouldn_t_be_tax_free_they_should_be_covered_by_food_stamps_and.html.
[27] Kentucky Cabinet for Health and Family Services, Supplemental Nutrition Assistance Program (SNAP) (Formerly Food Stamps), Ky.gov (last visited Mar. 24, 2016), http://chfs.ky.gov/dcbs/dfs/foodstampsebt.htm#food (“SNAP benefits can be used just like money to purchase almost any food item, except ready-to-eat hot foods…. The following items cannot be purchased with SNAP benefits: tobacco, alcohol, pet food, soap and other household products, medicines, and other non-food items.).
*Featured image by Imjustkimmie, licensed under CC BY-NC-ND 2.0.