Tampon Tax Be Gone: What the US Can Learn from India’s #LahuKaLagaan Repeal (Part II/II)
-Dr. Bridget Crawford
In this post, I will discuss how taxation of tampons may constitute gender discrimination and possibly amount to a human rights violation. I will also be discussing how disparate treatment in taxation is made visible in this situation and why choices made in taxation policy have significance outside of simple revenue collection.
Sales tax as gender discrimination
In anticipation of additional lawsuits being filed in US states to challenge the tampon tax, Professor Emily Gold Waldman and I have developed the constitutional arguments against the US state sales tax on menstrual hygiene products. In a forthcoming article in the University of Richmond Law Review, we provide an overview of the sales tax system in US states and provide a roadmap that can guide litigators in preparing pleadings or briefs.
Unlike in India, in the United States (and Australia), there is a federal Constitution and each state has its own constitution. The Fourteenth Amendment to the United States Constitution and its state-constitution counterparts provide that the government may not deny to any person the “equal protection of the laws.” In 1976, the Supreme Court of the United States ruled in Craig v. Boren that sex-based classifications must be substantially related to an important governmental purpose.
The US protections are similar to the ones provided by the Constitution of India under Articles 14 and 15. The US and India share constitutional commitments to protections against discrimination on the basis of sex.
In translating the United States Supreme Court precedents to the tampon tax imposed by thirty-five US states, note that the US state sales tax statutes are gender-neutral on their face. In each of thirty-five jurisdictions that have a tampon tax, sales tax applies to all sanitary pads and tampons, regardless of gender of the purchaser. Professor Waldman and I argue, however, that the sales tax on tampons and pads nevertheless functions as a tax on women because the products are so uniquely linked to the female body. As such, the tampon tax violates both US federal and the state constitutional prohibitions against denial of equal protection. Prior to India’s elimination of the GST on menstrual hygiene products, similar constitutional claims might have been raised under the Constitution of India.
Most women will menstruate for almost 40 years of their life. Practically speaking, this means that the average woman spends roughly 6.25 years of her life menstruating. Men do not menstruate; women (or persons such as some transmen, who may have certain anatomical factors associated with women) do. Note that the closest analog male-only product might be erectile dysfunction drugs, and those drugs are not subject to state sales tax in the US. The closest analog unisex product might be bandages or gauze, and those products escape state sales taxation. By not exempting menstrual hygiene products from sales tax, then, some US states engage in gender discrimination. For that reason, all US jurisdictions should repeal the tampon tax, just as India repealed its GST on menstrual hygiene products. India has shown the world that tax policy can be used to move closer to a nation’s highest aspirations for gender equity.
Human rights claims
Other possible sources for legal challenges to the tampon tax are international treaties. Although not a treaty itself, the UN Universal Declaration of Human Rights was adopted in 1948 by forty-eight countries including many in South America and Europe, as well as India and the United States. The UN Declaration provides: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” The principles of the UN Declaration are implemented through treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. Each of the implementing treaties prohibits discrimination and elaborates on the contours of particular rights, such as the rights of women to be free from discrimination and to equal protection under the law. India has ratified all of the core human rights treaties, and the repeal of the GST on menstrual hygiene products is consistent with India’s commitment to non-discrimination on the basis of sex.
Unlike India, the US has not ratified several important treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women. Given the general hostility of US domestic courts to relying on or even referring to international treaties, it may be difficult for tampon tax reformers to use international law as source for their challenges, although reformers in other jurisdictions might have greater success.
Making disparate treatment visible
The argument made here is not to suggest that the tampon tax is the result of some secret meeting of men who wanted to devise ways to make women suffer financially. Rather, sanitary pads and tampons have been taxed for so long because of a general cultural aversion to talking about menstruation. In India, a variety of misperceptions and myths continue to contribute to a sense of shame and ignorance about women’s bodies. In many religious and cultural traditions, menstruating women are treated as unclean and unfit to participate in communal life. Professor Carla Spivack and I argue that in the US, cultural squeamishness about women’s bodies generally and menstruation in particular have led to maintenance of a kind of tax status quo for menstrual hygiene products: unless a state legislature affirmatively exempts them from taxation, they remain in the category of taxable items.
All around the globe, public awareness of the tampon tax has increased dramatically in the last three or four years. Internet-based publicity, traditional protest demonstrations – in India, Australia and Europe – and even a Bollywood film, Padman – have attracted attention in the international press. Once people get over the discomfort of talking about menstruation and learn more about the tampon tax, most people consider the tax to be patently unfair. Not only do girls and women need (or wish) to use certain products because of their biology, and pay for the products themselves, but they also pay an additional sales tax. When confronted with the fact that women in California, for example, pay approximately
$20 million (approximately 1,435,700,000 INR) each year in sales tax on menstrual hygiene products, it is easy to see that the tax law imposes a quantifiable burden on girls and women for having the biology that they do.
For California, annual tampon tax revenue represents less than .001% of the entire state budget. In that sense, it is not a significant source of revenue. Yet during times when US states are facing significant budget shortfalls, every bit of lost revenue matters.
But tax laws are important not only because governments rely on tax revenue to operate. Through choices a society makes about whom and what it taxes, a society also signals the values it embraces. In the case of menstrual hygiene products, imposing a GST, VAT or sales tax on them when there is no principled way to distinguish these products distinction from those that are treated as tax-exempt “necessities,” the government effectively communicates to women that their biology is burden which they literally must pay if they wish to go to work, attend school, or engage in public life. Such a system is inconsistent with a society that values the contributions of all its members.
Ultimately, India’s GST council may have been motivated to eliminate the tampon tax as part of an overall plan to increase consumer spending. It is not likely that most of the council members developed a new-found appreciation for the expressive function of the tax laws. Yet given the public outcry over the #LahuKaLagaan, or blood tax, council members and other government officials likely understood that eliminating the tax would operate as a symbolic gesture toward women’s rights. That gesture does have practical effects, insofar as the tax repeal will put money back in women’s hands. The gesture also moves the India tax system closer to the aspirational goal of horizontal equity, or treating like taxpayers alike. Eliminating the tampon tax is a functional statement that women are equal to men. The US would do well to follow India’s example.
 Reformers in jurisdictions in Europe, in particular, might find international tribunals there to be receptive to claims that the tampon tax violates certain human rights norms. Professor Carla Spivack and I explore several tax cases recently brought in the European Court of Human Rights, although none involve the tampon tax. Taken together these tax cases suggest that, given appropriate facts, international tribunals are capable of understanding disparate taxation of men and women as a violation of human rights.
Dr. Bridget J. Crawford is the James D. Hopkins Professor of Law at the Elisabeth Haub School of Law at Pace University in White Plains, New York, USA. She is a graduate of Yale University (BA), the University of Pennsylvania (JD) and Griffith University (PhD). Her research interests include property law, especially inheritance; taxation; trusts and equity; corporate law and policy; and feminist legal theory. Her published work has appeared in a wide range of international journals.