Erwin Chemerinsky (UC Berkeley) and Jennifer Weiss-Wolf (Period Equity) have published an op-ed in the LA Times, Taxing Tampons Isn’t Just Unfair, It’s Unconstitutional. Here is an excerpt:
In the United States, where sales taxes are levied by each state, bills have been introduced in 32 legislatures since 2016 to exempt menstrual products from sales tax. Five succeeded: Connecticut, Florida, Illinois and New York passed laws. Additionally, citizens of Nevada approved a 2018 ballot measure to accomplish the same. Another 10 states don’t tax menstrual products — either because they collect no sales tax at all, or because they’re included under general exemption categories. * * *As a matter of policy, compassion and common sense, most states explicitly exempt “necessities of life” from sales tax, with food and medicine at the top of the list. In some states, necessity exemptions include things such as bingo supplies, cotton candy, erectile dysfunction pills, gun club memberships and tattoos. Menstrual products certainly rank as a necessity for most women, for much of their lives. They are essential for attending school, working and functioning in society. * * *In 2016, five plaintiffs brought a class-action lawsuit against the New York State Department of Taxation making these arguments. The case was withdrawn after the Legislature and Gov. Andrew Cuomo quickly responded to public outcry and passed legislation.But the central argument advanced in that case is valid, and it is one increasingly being made by legal scholars. It should be raised again in the courts. A law that affects only one sex — or one race, or one religion — is inherently discriminatory. U.S. Supreme Court Justice Antonin Scalia once famously remarked that a tax on yarmulkes is a tax on Jews (interestingly, in a case about abortion clinic blockades). In the same vein, a tax on a product used only by women, and used by all (or the vast majority of) women for much of their lives, is a tax on women. * * *Eliminating the discriminatory tampon tax isn’t a legislative nicety or a budgetary option. It is a legal mandate. Period.
The full piece is available here. See also this article by Emily Waldman (Pace) and me: The Unconstitutional Tampon Tax, 53 U. Richmond L. Rev. 339 (2018).