Menstrual Dignity and the Bar Exam

Abstract

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through bag outs test takers’ menstruation as well as their birth-assigned sex — an especially difficult problem for transgender, genderqueer/nonbinary, and intersex individuals who do not wish to share that information.

The authors conducted a study documenting experiences with menstruation and the bar exam and examined BOLE policies and practices relevant to menstruation. The Article uses the data from these studies to delineate the contours and substance of the problem. To guide this analysis, the Article also analyzes BOLE policies under the Equal Protection Clause and local human rights laws, determining that current policies are likely unconstitutional and discriminatory. Finally, the Article proposes a comprehensive Model Policy that appropriately balances BOLE concerns against the important principles of privacy and respect, fairness and non-discrimination, promoting health, providing accommodations, and transparency. If adopted, the Model Policy would bring BOLE policies closer to the goals of the critical intersectional movements urging diversification of the legal profession, bar exam reform, and menstrual justice.

Keywords: Sex, gender, gender identity, menstruation, constitutional law, equal protection, discrimination, civil rights law, human rights law, public accommodations, bar exam, legal profession, harassment, intersectionality, diversity, empirical, public policy, privacy, dignity, health, licensing

JEL Classification: K00, K36