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Tampon Taxes, Discrimination and Human Rights

59 Pages Posted: 19 Oct 2016 Last revised: 20 May 2017

Bridget J. Crawford

Pace University School of Law

Carla Spivack

Oklahoma City University School of Law

Date Written: February 21, 2017

Abstract

This Article makes two contributions to the study of taxation. First, it argues that the “tampon tax,” an umbrella term to describe sales, VAT and similar “luxury” taxes imposed on menstrual hygiene products, illustrates how deeply embedded gender is in legal structures such as the tax system that are thought to be neutral. Second, this Article posits that tax reform is an essential tool in achieving both gender equality and human rights.

In recent months, activists around the globe have harnessed the power of the Internet to raise awareness of the tampon tax. In response to pressure from constituents, five U.S. states and Canada have repealed their tampon tax. Active repeal campaigns are underway in Australia, the United Kingdom and several other countries. Where public pressure has not been an effective technique, those seeking to challenge the tampon tax in the United States have turned to litigation. In four U.S. states, class action lawsuits have been filed seeking repeal of the tax and a refund for back taxes paid, alleging equal protection violations. In the international context, human rights law may provide a promising foundation for similar legal challenges to the tampon tax because human rights law takes a capacious approach to gender equality. In the European Court of Human Rights, for example, there are several tax cases that recognize gender-differentiated taxes as a form of impermissible discrimination.

This Article explains how the tampon tax is both a form of gender discrimination and a violation of human rights norms. Full realization of gender equality will require revision of tax laws. As a cultural matter, the tampon tax has gone unnoticed because of a history of cultural (and legal) unease about women’s bodies in general and menstruation in particular. Women’s (involuntary) bleeding is meant to happen “out of sight, out of mind,” whereas men’s (voluntary) bleeding in war, for example, is valorized. A new generation of activists, relying heavily on the Internet, is deeply engaged in cultural and legal reform efforts designed to create positive change in the practical realities of women’s lives.

Keywords: sales tax, VAT, tampon tax, human rights, equal protection, constitutional law, gender, tax

JEL Classification: K19, K34, K3

Suggested Citation

Crawford, Bridget J. and Spivack, Carla, Tampon Taxes, Discrimination and Human Rights (February 21, 2017). 2017 Wisconsin Law Review 491. Available at SSRN: https://ssrn.com/abstract=2854525

Bridget Crawford (Contact Author)

Pace University School of Law ( email )

78 North Broadway
White Plains, NY 10603
United States

Carla Spivack

Oklahoma City University School of Law ( email )

2501 N. Blackwelder
Oklahoma City, OK 73106
United States

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