Over at Law.com, Emily Gold Waldman (Pace) and I have published an op-ed, Tampons and Pads Should be Allowed at the Bar Exam. Here is an excerpt:
The judgment of bar examiners that plan to hold in-person tests this summer is seriously in question. Mississippi, a coronavirus “red zone” according to the White House, is requiring test-takers to sign a liability waiver if they want to sit for the exam. North Carolina, another “red zone,” has informed test takers that sitting for the exam will be treated as a voluntary assumption of risk of exposure to COVID-19. Further strange news comes out of West Virginia and Texas. Test takers there may not bring tampons, pads or other menstrual products into the exam. Instead the bar examiners say that they will provide “feminine products” to candidates. Arizona had a similar policy, but wisely walked that back just a few days after a minor social media eruption. West Virginia and Texas should do the same.
Bar exam bans on menstrual products are discriminatory and should be lifted immediately. State boards of bar examiners, the gatekeepers for the legal profession, should be in the business of upholding the law and adopting policies that reflect its highest principles. Bans on bringing menstrual products are a form of gender bias. They are inconsistent with the legal profession’s highest and best values of providing equal opportunity.
We applaud efforts to make menstrual products available in schools, places of employment and other places. These products are necessities just like toilet paper. Kudos to the West Virginia and Texas bar examiners for making sure that test takers have access to products. But depriving exam-takers of the option to bring their own tampons and pads goes too far. Putting out a supply of tampons in a communal basket, whether in restrooms or otherwise, invites the very high-touch scenario that increases public health risk right now. More broadly, the products supplied may not meet the needs of all test takers. (Super-absorbent tampons with cardboard applicators are not appropriate in all situations, after all.) As the test goes on, the supply may run out—forcing test takers to alert proctors and lose precious time. There is also the question of where precisely the products will be available. Arizona previously said it was making them available in “women’s restrooms,” but that does not account for trans and gender nonbinary test takers who do not use women’s restrooms and may need products, too. The bar exam is stressful enough without having to worry about bleeding through one’s clothes.
Bar examiners’ bans on menstrual products likely violate equal protection, as well. Arguably, policies like West Virginia’s and Texas’ are gender neutral, prohibiting anyone from bringing “feminine products” to the bar exam. These rules are, nevertheless, sex-based. Just as Justice Scalia wrote in Bray v. Alexandria Women’s Health Clinic that, “A tax on wearing yarmulkes is a tax on Jews,” menstruation and the associated need for menstrual products are a proxy for female sex. Menstruation is a regular and unavoidable occurrence in the lives of approximately half the population (and slightly more than half of all recent law graduates) from, on average, the ages of 13 to 51. By not allowing test-takers to bring their own products, bar examiners put at a disadvantage those who are menstruating during the exam. There is no exceedingly persuasive justification for this type of sex-based classification. The failure to include menstrual products on lists of items permitted at the bar exam may not be the result of a secret discriminatory plot to keep the legal profession male. But the policy is the product of a culture that alternately ignores menstruation or treats it as something suspicious, dirty and secretive.
Menstrual product bans also reveal bar examiners’ ignorance about how menstrual products work. It would be very difficult for a test taker to write a “cheat sheet” for the rule against perpetuities or state personal jurisdiction rules on a small piece of absorbent material or its wrapping. Test-takers do not show up for the bar exam thinking they have an extra opportunity to refresh their recollection by running to the bathroom to check what is written on a tampon or pad. The simple solution is to have a supply of menstrual products available in all restrooms and to allow test takers to bring their own tampons and pads. Most states already allow candidates to bring a clear bag with necessary items like keys, cash, credit cards and medicine in the original packaging. All other states need to do is add menstrual products to the list of permitted items.
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If the legal profession is committed to holding up equality for all, regardless of a biological fact like menstruation, test takers must be allowed to bring tampons and pads with them to the bar exam.
The full piece is available here.