Johnson, Crawford & Waldman on “Title IX and Menstruation”

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Margaret Johnson (Baltimore), Emily Waldman (Pace) and I have posted to SSRN our article Title IX and Menstruation, forthcoming next year in the Harvard J.L. & Gender.  Here is the abstract:

“Oh no. Could I borrow a tampon or pad?” These (or similar) words are familiar to almost everyone who has ever had a period. Even for adults, menstruation can at times be a challenge. For some schoolchildren, it can feel like an insurmountable obstacle to receiving an education. Students are subject to constant observation by classmates and teachers; they may not have autonomous access to a bathroom during the school day; or they may not be able to afford menstrual products. As a result, a menstruating student may find it difficult to concentrate in school or even attend school at all, depending on the circumstances. This Article explores the intersection of menstruation and education to uncover the impediments faced by girls and other students who menstruate.  Students may experience menstruation-related peer harassment, restrictive school policies, a lack of access to menstrual products, and inadequate menstruation-related education.  Because menstruation is uniquely associated with female biology, a school’s failure to address the needs of menstruating students amounts to a denial of educational opportunities on the basis of sex under Title IX.

In recent years, students themselves have played notable roles in successful efforts to cause schools to provide free pads or tampons to students. Currently most states do not require schools to do so. Even in states where schools have a legal obligation to provide menstrual products to students, availability is only one part of a larger problem. Unless students can access bathroom facilities in response to their biological needs, and do so without shame, stigma or restriction, students may risk bleeding during class, failing to change tampons or pads as medically recommended, or even leaving (or skipping) school. This Article argues that pursuant to Title IX, schools should provide students with an education free of unnecessary anxiety about the natural biological process of menstruation.  This freedom from anxiety is a necessary precondition for girls, boys, women, men and people of all genders to have meaningful opportunities to fully participate in all aspects of public life.

The full article is available here. Our article focuses mostly on education in grades 3 through 12, but the arguments are equally applicable to higher education contexts, too. 

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