Why the Texas Tampon Tax is failing at all levels and needs to end

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The first and most obvious reason why taxation of menstrual products such as tampons, pads and panty liners – better known as a tampon tax – should end has nothing to do with justice, public policy or the constitution – although, as discussed below, all of these provide strong additional ones Arguments for the same result.

Rather, the supervisory regulations already prohibit the taxation of menstrual products according to elementary principles of administrative law. Comptroller Rule 3.284 lists wound dressings as one of the drugs exempt from taxation by law. This rule defines a wound dressing as “an article that absorbs wound drainage, protects healing tissue, maintains a moist or dry wound environment (as appropriate) or prevents bacterial contamination”.

Menstrual products fit that definition exactly. Although some consider menstrual products a modern convenience, according to Dr. John Irwin, filed by Baker Botts in support of the tampon tax challenge, is actually a medical necessity. Irwin is an obstetrician-gynecologist with over 40 years of experience; He is also the former Chief of Surgical Services at the Women’s Hospital of Texas at Houston’s Texas Medical Center from 2000 to 2016. His report states that, medically speaking, menstruation creates an open wound in the uterine cavity. Menstrual products soak up and absorb the resulting drainage, protecting healing tissues from bacterial contamination.

In addition, menstrual products maintain a healthy environment for the delicate vulvar tissue by absorbing moisture into their inner layer while maintaining a relatively dry outer layer. In other words, using the terms of Rule 3.284, menstrual products “[absorb] wound drainage, protecting healing tissues, maintaining a moist or dry wound environment (as needed), [and] prevent bacterial contamination.”

And that only covers routine use of menstrual products during menstruation. They also serve other undeniable medical functions like in vaginitis and after surgeries like hysterectomy, childbirth and treatment of vulvar cancer.

To be clear, there are no safe alternatives to menstrual products either. According to Irwin’s report, using gauze, toilet paper, or similar low-quality substitutes might help absorb moisture to some extent, but would also create an unhealthy environment of constant wetness due to the lack of the unique moisture-wicking properties of menstrual products. This in turn could lead to a number of undesirable consequences including toxic shock syndrome, sepsis and death.

The Texas Comptroller’s historical application of Rule 3.284 provides further support for the conclusion that menstrual products qualify as wound dressings. The Comptroller has given the definition of wound dressing a broad definition, including gauze, bandages, corn pads, callus removers, skin clips and eye protection. While some of these items, like gauze and band-aids, evoke traditional images of wound care, items like eye protection, corn pads, and callus removers do not. Menstrual products – as the word hygiene itself underlines – are specifically designed to prevent bacterial infections by ensuring that blood, vaginal discharge or other moisture is transported away from the skin’s surface, and therefore certainly have a higher claim to wound care product status than Corn pillows and callus removers. If these qualify as wound care products, then menstrual products qualify even more.

The tampon tax is also constitutionally weak. It violates the mandate of the Texas Constitution that “[e]The legal status shall not be denied or reduced on the basis of sex, race, color, creed or national origin.” In particular, the Comptroller’s exclusion of menstrual products from the tax exemption while allowing similar gender-neutral products and other male-specific products such as libido enhancers unlawful discrimination based on sex. In addition, the tampon tax also violates the Texas Constitution’s requirement that “[t]axation should be equal and uniform.”

While states generally have broad powers to impose or collect taxes, they must not make arbitrary, inappropriate, or capricious classifications among taxpayers. The menstrual product tax fails this test because the Court of Auditors has no rationale for its differential treatment of gender neutral blood absorbent products and menstrual blood absorbent products.

Finally, apart from purely legal arguments, the discriminatory tax treatment of menstrual products is extremely bad public policy. Non-medically necessary products such as male libido enhancers and prostate vitamins are tax exempt in Texas, but medically necessary menstrual products are not. It is therefore no exaggeration to say that the Texas Comptroller favors the male sex drive over the safe and effective management of menstruation. There’s no justification for that; Nobody can seriously claim that this is part of a rational tax system.

The tampon tax fails on all levels. It is bad administrative law because it contradicts the text and historical application of the Comptroller’s own regulations. It’s bad constitutional law because it irrationally discriminates against women. And it’s bad policy because women’s unique medical needs shouldn’t be treated as less important than male sex drives. It’s about time the tampon tax ended.

Baker Botts LLP is representing Sahar Punjwani and the Texas Menstrual Equity Coalition on a volunteer basis in their challenge to Texas taxation of menstrual products. The dispute is currently the subject of an administrative proceeding before the Texas Comptroller of Public Accounts.

This article does not necessarily represent the opinion of the Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Information about the author

Meghan McElvy is a partner in Baker Botts’ Houston office. She represents clients on a wide range of matters, with a focus on energy disputes and regulatory matters.

Laura Shoemaker McGonagil is an associate in Baker Botts’ Houston office. She handles energy and tort disputes in state and federal courts and in domestic and international arbitrations.

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