Bridget J. Crawford recently spoke with Dana Brooks Cooper, Esq. of Barret, Fasig & Brooks in Tallahassee, Florida. Ms. Brooks is representing the plaintiff in a class action that challenges the Florida “tampon tax,” the state sales tax imposed on feminine hygiene products. The Complaint in Wendell v. Florida Department of Revenue et al. was filed in the Circuit Court, Second Judicial Circuit, in and for Leon County, Florida, on July 6, 2016.
In this interview, Ms. Cooper explains the background to the case, the grounds for the legal challenge and why the case is important.
Bridget Crawford: Can you tell me a little bit about the background to this case?
Dana Brooks Cooper: Our plaintiff is an impressive 23-year old woman who had already started a non-profit, “FLOW” (For the Love of Women), for purposes of removing the stigma associated with women’s periods and putting sanitary products in women’s shelters in the Tampa/St. Pete area.
Crawford: How did you become involved in the case?
Cooper: I was contacted by one of the other attorneys who was already on the case who I have worked with in the past on constitutional challenges.
Crawford: I notice that the two other named partners in your firm are men, and seven of the ten attorneys at your firm are men. How did your colleagues – at your firm and otherwise – react to your taking on this case?
Cooper: Well, we recently hired another attorney, who is a woman, so now we’re 36% female! That is actually quite high for a firm that is 100% plaintiff trial lawyers. Women are still woefully underrepresented among trial lawyers, especially on the plaintiff’s side.
To answer your question, there was 100% unanimous support from the very beginning. Although every one of my male partners has important women in their lives—mothers, sisters, daughters, wives, like me, they don’t see this as a women’s issue; it’s a fairness issue.
I’m the managing partner in this firm so I’m the one dealing with maternity leave and other issues. My partners have always supported by efforts at gender parity. I make sure that our female attorneys are not penalized when they go on maternity leave – we make sure they receive the same pay and benefits but we also have the other attorneys (male and female) help maintain her caseload so she doesn’t miss out on the additional income she could and would have made, but for the pregnancy. Same thing with sick leave – we pay our employees for unused sick time but I realized that women take more leave than men. Investigating further, I found out it was mainly because they suffered from reproduction-related health problems, like menstrual cramps, excessive bleeding, anemia, headaches, etc., which reduced their leave substantially compared to their male counterparts. Those are real dollars women are losing compared to men. Luckily, it was simply a matter of opening my male partners’ eyes to this – they had never even thought about things like that until they had a female managing partner.
Bottom line – I work in an exceptional law firm and my partners are like my father and brothers.
Crawford: Your Complaint in the case argues that the Florida law improperly classifies tampons and pads and thus subjects them to sales tax, while similar products like adhesive tape, Epson salts, athlete’s foot treatment, Rogaine and petroleum jelly are not subject to tax. As a technical matter, this happens in Florida law through a tax exempt classification for certain medical products as well as “common household remedies recommended and generally sold … for the cure, mitigation, treatment or prevention of illness or disease in human beings.” In your Complaint, you say that tampons and pads “are far more necessary to the cure, mitigation, treatment, or prevention of illness or disease than other products the State of Florida considers medically exempt.” I don’t think you are saying that menstruation is an illness or disease. What did you mean?
Cooper: No, of course menstruation, in and of itself, isn’t a disease. It is a natural process, but one for whom no woman has the opportunity to “opt out.” However, sanitary products play an essential role in reducing and preventing the spread of blood borne illnesses. If you think about it, if an athlete gets injured and starts bleeding in a basketball game, s/he must leave the game specifically to avoid the potential spread of disease. In Florida, the absorbent products used for that active bleeding – gauze, tape, band-aids, etc. – would be tax exempt for both male and female athletes. Women use sanitary products for the same reason – to keep from bleeding all over the place – yet they are taxed for similar absorbent products. Women don’t use these products for fear of their own blood – it’s for the protection of everybody else. Simply put, it’s a public health safety issue, the costs of which are solely borne by women. These products are not luxuries – women can’t just stay home until they stop bleeding. Imagine the world if every menstruating woman opted out of paying for this “luxury,” and just stayed home from school, work, church, shopping, and volunteering while they were bleeding. The average start of menarche is age 12 and the onset of menopause is usually around age 51-52. Women have their periods every 28 – 30 days for 5-7 days. If you do the math, the average woman spends between 6.6 and 9.2 years of her life on her period! With a life expectancy of 78 years, the average woman spends 8.5-11.8% of her life bleeding for no other reason than the fact of being born female.
Crawford: Why do you think that the Florida Department of Health, which is responsible for creating the list of “common household remedies” that are exempt from Florida sales tax, did not include feminine hygiene products on that list and exempt them from tax?
Cooper: In my opinion, they simply did not give it sufficient thought. It seems capricious to me to exempt some products used primarily or exclusively by women, such as breast self-exam kits, vaginal itch creams and menstrual cramp relievers, yet not exempt tampons and sanitary pads. Likewise, I see no reasoned, rational thought behind exempting athlete foot remedies and men’s hair loss treatments, yet not exempting sanitary products women require 16-23% of the time for 51% of their entire lives.
None of the Departments we have sent public records requests to, including the Department of Health or the Department of Business and Professional Regulation, have been able to provide us any basis for classifying tampons and pads they have. Our request to the Department of Revenue remains outstanding.
Crawford: Your Complaint also argues that the tampon tax violates the Equal Protection Clause of the United States Constitution and the Florida Constitution. Is your claim that the tax serves no important state interest, or that the classification is not substantially related to serving the interest, or both?
Cooper: I think it’s quite obvious that the classification is not substantially related to serving a legitimate government objective. The state sales tax, in general, serves an obvious government purpose, especially considering that Florida does not have a state income tax and generates a great deal of its revenue from tourists. However, classifying and treating these medically necessary products used overwhelmingly by women differently than other similar blood absorbing products used by both sexes or products used primarily by men is unsupportable without some rational basis, which we suspect does not and cannot exist.
Crawford: What about the argument that the tampon tax does not discriminate against women because men are consumers too, in that they buy feminine hygiene products for women in their lives, or might occasionally use these products themselves for medical purposes, such as after a surgery, or to stop a nose bleed, for example?
Cooper: Although some men do buy these products, it is irrefutable that the burden of this tax is borne overwhelmingly by women. We’ll learn more as we get into the discovery process, but I suspect those few exceptions will not outweigh the greater discriminatory effect.
Crawford: Your Complaint sets forth a claim for a refund of taxes in excess of $15 million. Do you have any estimate of how many plaintiffs would be represented by the class and how much money (in terms of sales tax collected) is at stake?
Cooper: Again, this is something that we will learn more about as we conduct discovery, but we’ve done some rough calculations and estimates based on population statistics and information from similar disputes in other states. For Florida, again considering tourism dollars, I would consider $15 million to be a conservative estimate of taxes paid on these products over the last three years.
Crawford: Is there any precedent in Florida for that level of refund claim being paid in the context of a sales tax imposed on a consumer product?
Cooper: Based on the research we’ve done so far, we haven’t found any appellate cases where a refund was actually awarded. The law provides a mechanism for refunding taxes, though, which is why we had to sue the retailers (they’re basically a pass-through). But it seems only fair that the government return to the taxpayers this money that it never should have collected in the first place.
Crawford: Florida state senator Wilton Simpson has indicated that he will advance a bill in the next legislative session that would exempt feminine hygiene products from state sales tax. What do you make of the comment (here) by Rachel Perrin Rogers, a legislative assistant to Florida state senator Wilton Simpson, that a legislative solution to the tampon tax might be complicated by the litigation you filed?
Cooper: Changing the law is relatively easy. It should have been done already and with the high relevance of this issue and the laws changing right now in other states, I feel fairly certain it will be changed next session. But the legislature doesn’t want to deal with the fact that they’ve been illegally collecting taxes for years and our lawsuit is to hold them responsible for that.
Crawford: Why do you think the “tampon tax” is gaining prominence as a national and international issue?
Cooper: Women are finally getting a true representative voice in leadership and are able to bring to light these patently unfair laws that have been overlooked and pushed aside. It’s the “Year of the Woman!” Aside from that, I think it’s a matter of late awakening. Like so many, I was ignorant that I was being taxed for having a period as if it were a luxury. So I believe it’s a combination of heightened awareness, thanks to people like our plaintiff, coupled with timing. We’re in an election year with two presidential candidates who could not be further apart on women’s issues. I also believe women are finally getting widespread support on this and similar issues from our male leaders. Women have never had a greater voice than they do right now, this year.
Crawford: The Complaint seeks declaratory relief – a prospective exemption from sales tax for feminine hygiene products – and a refund for all women who have paid this discriminatory tax in Florida. Practically speaking, how would that work? Would people need to show receipts for tampons they purchased three years ago? Most people don’t keep receipts that long. Will that mean a windfall for the Florida government, if women win this case but then can’t recoup the money they paid?
Cooper: Since we’re only looking at the past three years of taxes paid, there is a lot of technology that can help us figure this out. Most people use debit and credit cards, so those figures are knowable from the retailers. Cash purchasers may present a greater challenge. A lot will also depend on the class certification.
Crawford: From your perspective, what are the “big picture” implications of this case?
Cooper: Women are having a greater voice in the decision-making process. If we have more input in the policy decisions going forward, we won’t have to spend our time tracking down illegal tax overpayments and trying to fix bad laws after the fact. To me, the big picture is that women are paying attention and we matter. But again, it’s not just a bunch of pumped-up, easy-target, angry women rallying against the tampon tax– we are enjoying widespread support from men as well.
Crawford: For law students who might be reading this interview, can you describe the kinds of things did you do in law school to prepare you to become a litigator and take on a case as big as this tampon tax case?
Cooper: Be active in clubs, volunteer for non-profits and political campaigns, read your damn local newspaper, know your representatives, pay attention to policy, use this time to get familiar with the issues that matter to you at the local, state and national levels. This may sound strange, but find out what your values are. So many young people simply adopt their parents’ views or make decisions based on the wrong things (“I want to be financially successful and that is what the republicans are, so I’ll be a republican.”) Take this time to find out who you are and what matters to you and become passionate about it.
True story – I know an attorney who makes over $1 million a year, is a good trial lawyer, awesome husband and father, and devours everything he can get his hands on that helps him give better service to his clients and generally improve every aspect of his life. But he is almost completely politically ignorant. He is frequently embarrassed when he runs into our local and state officials because he doesn’t know who they are or where they stand on issues that are life and death to his own law practice (tort reformers). His ignorance can be extremely costly. To me, he’s practicing without a good 25% of the information he needs to do a good job in front of a jury and lead his firm into the future. No serious litigator or business owner would ever knowingly hamstring himself like that. But that is what ignorance of policy, politics, and current events is – a deficiency. It’s a weakness.
Crawford: For law students who are interested in pursuing a career in litigation that advances the rights of women or protects vulnerable individuals, do you have any particular career advice?
Cooper: Career advice: Find the right mentor. Can be male or female but find someone who is out there right now doing what you want to do. You’ll be shocked at how accessible some very busy practicing attorneys can be. Again, pay attention to what’s happening at the national level. Find sources of news and information you know you can trust. Build relationships – find that person in the mayor’s office who will give you a heads up or access the others don’t have. Get to know those reporters who seem to focus on your issues or subject matter. Master social media and digital content – it drives everything now.
Personal advice: Train yourself to be empathetic – to be able to truly imagine the other person’s perspective or experience from the other’s person’s point of view. Learn good interviewing techniques (you talk no more than 30% of the time). Be tough – don’t be afraid of “no” or “not now.” Have skin as thick as a rhinoceros – sensitive people are easy to spot and once someone knows where your buttons are, you better believe they’re gonna push them. Die before you cry – at work or in public, but do whatever you have to do to train yourself to maintain complete control of your emotions. It may not seem fair, but being emotional diminishes your credibility. Stand up for people with no voice – there are more than you may realize. Live by example and be congruent – your behavior should match your proclaimed values. Be right – if you’re going to challenge the status quo, you need to be right. Work harder – if you’re bucking the establishment or tradition, it’s not going to be easy. Work harder and smarter than they do.
Crawford: Thank you so much for speaking with me about this case. I will be following its progress with interest.
Cooper: Thank you. This is just the beginning of our case here in Florida. It will be interesting to see how these cases and issues progress nationwide.