If the government taxed people simply on the basis of their gender, not only would that be unfair, but also an unconstitutional take on “equal protection” in the fourteenth Amendment. Yet, that is exactly what taxing feminine products is. In the United States, all tangible individual property is taxed, with the exemption of non-luxury goods such as groceries, prescriptions and sometimes even clothes. The “tampon tax” is (in most states) not included in this exemption. Although there are states across the country that have barred this tax (Florida included), 35 states still find it reasonable to place a tax on a product that, well, is definitely not a luxury.
Almost every female who passes puberty experiences the menstrual cycle and uses menstrual products. In states that still have the tampon tax, these products, whether they are tampons, pads, or any other type of menstrual products, are taxed the same amount as any other luxury good (6.85%).
Most states exempt the tax of “necessities of life” such as food and prescription medicine. However, because of the loose interpretation of this phrase, other states exempt taxes on bingo supplies, cheese puffs, erectile dysfunction pills such as Viagra and even gun memberships. Menstrual products are part of this “necessity“ for most women throughout an average of 40 years. These products are vital for carrying out day-to-day activities such as work, school and participating in society.
But, speaking in terms of the law, this tampon tax isn’t just unfair, but unconstitutional. “I have no idea why states would tax these as luxury items,” former President Obama said in an interview with Youtuber Ingrid Nilsen. “I suspect it’s because men were making the laws when these were passed.” Not only does a tampon tax specifically tax women because of their needs but it also promotes sex-based discrimination, bringing the “equal protection clause” or the fourteenth amendment into question. In early 2016, five women filed a class action lawsuit against the New York State Department of Taxation claiming that “The tampon tax is irrational. It is discrimination. It is wrong.” Now known as Sribert v. New York State Department of Taxation and Finance, this lawsuit argued the violation of this clause and questioned how items including shampoo and chapstick were not taxed but tampons and pads were. Legislation to get rid of this tax was introduced in late 2016. However, because this is a state-by-state issue, not every state is required to implement it.
This central argument revolves around a discriminatory one. While the equal protection clause requires that all actions that treat people differently from others have a rational or justifiable basis, there is no justifiable or rational reason as to why women are forced to pay a tax based on their reproductive system. Eliminating this tax shouldn’t be a favor nor a service, but a legal right.