Making the Case of a Constitutional Right to Menstrual Products for Prisoners and Detainees: Flores v. City of New York (E.D. N.Y. Feb. 19, 2021)

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The United States District Court for the Eastern District of New York issued a ruling last week that plaintiff Jennifer Flores can move forward with her suit alleging violations of her constitutional rights by failing to provide her with access to menstrual products while detained at the 108th Precinct. She was made made to appear in court the next day in blood-stained clothes.

Here are the facts, as presented by the court, citing from the plaintiff’s complaint:

The plaintiff, Jennifer Flores (“Ms. Flores”), is a female resident of New York City. (ECF No. 3, Amended Complaint (“Am. Compl.”), ¶ 31.) On the evening of October 12, 2016, Ms. Flores was arrested by New York City Police Department (“NYPD”) officers in Queens, New York, on misdemeanor charges for obstructing government administration. (Id. ¶¶ 69-70.) She alleges that her arrest resulted after she advised her friends of their rights while they were being searched by NYPD officers. (Id.) At the time of her arrest, Ms. Flores was experiencing what she describes as “particular heavy” bleeding consistent with her menstrual cycle. (Id. ¶ 71.) Ms. Flores was wearing a sanitary pad, but did not have additional feminine hygiene products with her at the time of her arrest. (Id. ¶ 72.)

Upon her arrest, NYPD officers transported Ms. Flores to the 108th police precinct. (Id. ¶ 74.) Ms. Flores informed multiple NYPD officers at the precinct that she was experiencing menstrual bleeding, and she requested feminine hygiene products. (Id. ¶ 76.) She was told by multiple NYPD officers that no such products were available at the precinct. (Id. ¶¶ 77-79.) As advised by the “John Doe” defendant police officers, Ms. Flores attempted to use toilet paper and gauze to absorb the bleeding, but neither was adequate, and her clothes were soiled and ruined as a result of the bleeding. (Id. ¶¶ 79-80.) After Ms. Flores had been detained for approximately six hours, her attorney brought her tampons. (Id. ¶ 81.)

The following day, Ms. Flores appeared for arraignment wearing the same clothes that had been bloodied. (Id. ¶ 82.) The criminal court granted Ms. Flores an adjournment in contemplation of dismissal pursuant to New York Criminal Procedure Law § 170.55, and her case was dismissed and sealed. (Id.)

The defendants the City of New York and various police officers motioned to dismiss, but has allowed Ms. Flores to proceed with her constitutional claims. Judge Kiyo Matsumoto noted in her opinion (here) that showing disparate impact alone will not be enough to prove an equal protection claim.

As Emily Gold Waldman (Pace) and I have argued elsewhere (here and here, for example), we think there is a strong case to be made that sales taxes on menstrual products and bans on menstrual products at the bar exam, for example, are in fact facially discriminatory on the basis of sex. Why? Because menstrual products are so closely associated with “female” biology that they functions as a proxy for sex, at least for equal protection purposes (recognizing that not all who menstruate are cis women, that not all cis women menstruate, that some trans men and boys, gender non-binary folx, genderqueer individuals menstruate + contemporary understandings of sex and gender have moved away from binaries to a more capacious approach, but constitutional jurisprudence has not kept up).

We also say that even if these taxes and bans are facially neutral, the long history of animus toward menstruation and menstruating individuals gives rise to an inference of discriminatory intent. By analogy, these arguments should apply in Ms. Flores’ case. We have an entire chapter that addresses the rights of prisoners in our book, Menstruation Matters: Making Law and Society Responsive to Human Needs (NYU Press forthcoming 2022)

I’ll be watching this case with great interest!

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