Fight over Absurd ‘Tampon Tax’ Continues in California Court

In California, the tampon tax lives on. But a class-action lawsuit initially filed out of Santa Clara County will continue the fight to repeal it.

Gov. Jerry Brown vetoed a bill last week that would have exempted tampons, pads and other menstrual products from sales tax. “Tax breaks,” he mansplained, “are the same as new spending” and should be decided in budget deliberations.

Rather than waiting on lawmakers, two women have taken the battle to court. In August, Nicolle DiSimone and Stacy Sobo sued the state Board of Equalization (BOE) over the tax, which they claim violates their constitutional right to equal treatment under the law.

“Honestly, Brown’s veto makes for a much more interesting case,” their attorney, Devon Lyon, tells San Jose Inside.

The past year has seen state after state knock the tax off feminine hygiene supplies by reclassifying them as medical essentials. As the stigma around menstruation begins to fade, the campaign to end the so-called tampon tax has gone viral. For the first time ever, the leader of the free world had something to say about the apparent inequity.

“I have no idea why states would tax these as luxury items,” President Obama told a lifestyle blogger in a YouTube interview earlier this year. “I suspect it’s because men were making the laws when those taxes were passed.”

California, like most states, applies sales tax to menstrual items because they’re considered “luxury” goods, not necessities like meds and food. Rogaine and Viagra, on the other hand? Those are tax-free. So are movie tickets and candy bars, oddly enough.

Female hygiene items have been subject to sales tax in California since 1933, according to BOE spokesman Jonathan Mendick. Tampons and their ilk aren’t singled out, he says. The $20 million collected from taxing them gets pooled with all other sales tax revenue.

Assembly Bill 1561 would have lifted the tax from tampons, sanitary napkins, menstrual cups and period sponges through 2022. Assemblywoman Cristina Garcia (D-Bell Gardens), who co-sponsored the bill with Republican Assemblywoman Ling Ling Chang, called the governor’s veto “an easy cop-out.”

But Lyon, who has since transferred the case to San Francisco County, says she’s eager to argue her point in court. In her lawsuit, she calls the tax “a vestige of an antiquated patriarchal era when women were somehow considered unequal to men.” The suit notes that California prisons and jails recognize the necessity of providing female inmates with sanitary items. It also points to a 1989 Illinois Supreme Court ruling that deemed period products a clinical need.

The late Supreme Court Justice Antonin Scalia even gets a nod from Lyon, who cites his opinion in a 1993 case that likens a tax on yarmulkes to a tax on Jews.

“While Jewish men have alternative methods of covering their heads for religious purposes, most women have no real alternative to feminine hygiene products while menstruating,” Lyon argues. “If a tax on yarmulkes is a discriminatory tax on being Jewish, the tampon tax is a discriminatory proxy tax on women for being women.”

Jennifer Wadsworth is the news editor for San Jose Inside and Metro Silicon Valley. Email tips to [email protected]onews.com or follow her on Twitter at @jennwadsworth.

29 Comments

  1. I see Jennifer has angrily stamped her foot and taken off her journalist hat in favor of her lady cap. “Mansplained”? Really?
    As long as we’re segregating Americans into categories I would note that yes, Governor Brown is a male but I would also point out that he is a Democrat. So why not “libsplained”? Or “Ineedmoneyformybullettrainsplained”?
    Hmmmm?

      • > Because it is a feminine equality issue…duh

        Pure tribalism. The shaman guarantees “fairness”, so long as you love and obey the shaman.

        But, that was 10,000 years ago.

        Since then, humans have gotten tired of starving to death, and started saving and investing in flocks and crops, producing UNEQUAL amounts of food and wealth, and supporting 7 billion people on the planet.

        If you want “equality”, go live in a feminist commune and forage for roots and berries. Be sure to share every berry you find equally.

          • > Let me guess you are single and still live with your parents.

            Correct.

            Except for the part about being “single” and “living with my parents”.

            But for progressives, this is considered to be close enough to be correct. I believe that in the modern California public school you would be considered a “learner”.

    • Being unfamiliar with the term, I must resort to deduction to determine meaning. Given that,

      the speaker is the chief executive of the state, and
      his duty in the matter was one he is sworn to execute objectively, and
      he recognized the matter as one for which protocol exists, and
      he values protocol as an instrument of sound governance, and
      the matter lacked the exigency that would justify violating protocol, and
      there are no obstacles to the legislature addressing the matter as it does all similar matters, and
      the author objects to the governor’s decision but shows no interest in arguing his reasoning, and
      the author is female.

      Thus, I conclude “mansplained” must mean “to use reason to make understandable something women don’t want to understand.”

  2. Jennifer,
    If you want lower taxes or no taxes stop voting for “Tax and Spend Democrats” .

  3. Noting that the object dangling in the photo is bullet shaped perhaps Governor Moonbeam has misidentified as ammunition, something for men he clearly thinks should be taxed out of existence.

  4. The comments section is (unsurprisingly) full of sexist and misogynistic comments.

    For fricks sake – these products should NOT be taxed.

    • Most things should not be taxed! That’s a major problem in California. They tax incessantly, because there’s never enough money for all their great new ideas.

      How about this proposal: every proposed new tax must identify another tax that must be eliminated in order for the proposed new tax to take effect.

      Otherwise, where does it end?? California already has nearly a 10% sales tax, plus nearly a 10% income tax. The electeds are ravenous hyenas who look at productive workers as sheep to be sheared.

      We’re taxed way too much already. Enough! Let’s apply the idea behind this tampon complaint to everything: no new taxes, unless an equal or greater tax is rescinded. Make the electeds work for a change. Make them prioritize spending, and keep within a budget—just like the rest of us have to do.

      • The reason the sales and income taxes are so high is because the property taxes are incredibly low. A high sales tax also makes money off of visitors to the state (on top of “resort fees” and “hospitality taxes”). A high income tax makes money off of both people who live in the state and who work in the state (but live in neighboring states).

        But real estate taxes? That’s supposed to be the bulwark of the state’s capacity for raising revenue (essentially, the state collecting rent in exchange for exclusive access to a particular section of land). Unfortunately, 1978 Proposition 13 capped real estate taxes at 1% of the value of the property, caps adjustments at 2% from year to year (which prevents such things as “properties becoming more desirable and thus increasing the rates at which they can be taxed”), and mandated that the 1% of the property value go only to counties and not the state itself.

        If you want to fix taxation, fix the state constitution (and learn from how other states do their taxation strategies, for crying out loud).

        As for the rest of the argument: Candy bars are food items; they’re untaxed because they’re food. Movie tickets aren’t “goods”, they’re “evidence of payment for an entertainment service that does not transfer property”. California does not tax services unless they’re integrally involved with the transfer of property.

        To Jennifer Wadsworth (the author of this piece): If you propose to impose a tax on candy bars and movie tickets in exchange for tax-free feminine hygiene products, that’s a perfectly acceptable political position to take… but in that case, Jerry Brown’s veto note told you exactly where you need to focus your attention to make it happen. It is a budgetary negotiation, and thus it’s rational to assume it should be placed in a budgetary legislation package. It’s not “an easy cop-out”, it’s the desire of the head of state to make sure that enough of a legislative analysis is done that the imposed replacement taxes are set appropriately to make up for the shortfall that would result.

        Honestly: the two sponsors of the bill already managed to convince their fellow legislators that there’s a need for these taxes to be repealed — it wouldn’t and couldn’t have gotten to the governor’s desk if they hadn’t convinced their fellows. Just… do the rest of the work, please. Don’t overspend California back into a situation where banks won’t accept the state’s IOUs again. Calling the veto “an easy cop-out” is just their attempt to shift the blame for their own attempt to cop out of the rest of the work that has to be done to keep the budget balanced.

        • Say what?
          Everywhere I have lived, real property taxes fund local services: police, fire, schools, etc. They have NEVER gone to the state. State governments are funded by sales tax, income tax, or both.
          Further, real properly taxes are incredibly regressive — property values have historically climbed much faster than the rate of inflation and thus wages. If a homeowner loses his job, his income tax automatically drops, and he can control his sales tax expenditures by cutting spending. But the property tax remains at its previous value, and can even skyrocket.

    • Sally,
      I suggest you start a petition to recall the governor that was re elected 3 times violating the term limits law.
      I sign it!

  5. This is a little off the subject but I am so fried about all of these taxes that I can’t shut up. We pay taxes on our income, we pay taxes on the material things that we purchase and then when we die and leave every thing to our children, the estate is *highly* taxed on the stuff we already paid taxes on. Isn’t that double taxation? My blood pressure goes through the roof just thinking about all of these taxes. It really makes me angry.

    • Estates are only taxed for the value above $5,000,000. Only 0.2% of estates are ever taxed, and then only for the excess above that amount. You can leave up to $5,000,000 to your children without incurring ANY tax on it. There are things to be angry about that actually will affect you, but this is not one of them.

      • Thank you for that info, David!!! I certainly don’t have $5,000,000…well, not until I win the lottery :-). Still not fair for the 1% who are being double taxed, though.

        • Dead people don’t pay taxes.
          Because they’re dead.
          Live people pay taxes on income, and an inheritance is income to them.
          Inheritances are the most pernicious types of income, because the recipient did nothing to earn them. It’s basically intrafamiliar welfare.
          If you believe people should receive something for nothing, then sure, protest the tax on inheritances.

          • The point is…they are paying HEFTY taxes on stuff that taxes have already been paid on. It should not matter that it is an inheritance. The taxes have already been paid and that should be the end of it. Something for nothing??? It is stuff that is passed on to family. They should not have to EARN it. Taxes, taxes and more taxes. It’s a little much. Believe me…if I had the time and the energy, I certainly would have no problem making a big stink about it.

          • We’re all in the same boat. I earn a living, I pay income taxes. I come into your store to buy something. Some of the money on which I paid taxes goes into your pocket for which you must pay tax.
            And what is special about family? Unfortunately I was not lucky enough to be born to rich folks. In fact, my dad went to his grave owing me money. Can I get reimbursed from somewhere?

  6. Speaking of unequal treatment:
    Condoms are taxable, while contraceptive creams, foams, jellies, and suppositories are tax-exampt.
    Why must I pay tax just because I have an outie instead of an innie?

  7. You know I don’t get it why is there no taxes on Viagra and Rogaine? And I am a man,This makes no sense to me. Men and women use Rogaine but it doesn’t really matter if you are going to tax one thing there should be taxes on all products it shouldn’t look like it is a man vs women thing it should be fair! And in my mind tax all stuff that is in question. That way no one fill’s like they are not being treated fair.

    • But there is Rogaine for women. And provided it is a prescription, women will not have to pay tax on it.

      Older women’s hair literally thins, meaning if their hair is cut too short, much of their scalp will be visible. Rogaine claims to stop this thinning.

      Viagra corrects a blood circulation problem, and is useful in other parts of the body. Should Viagra for one purpose be taxed, but be tax free to treat an ailment affecting a part of the body that both men and women share?

  8. This is all proof that liberal democrat men are conducting an economic war on women, I call for a million women march on Sacramento demanding the impeachment of all democrats that voted for this unjust tax on women.
    While you’re at it please demand free abortions and birth control for all registered democrat women, It’s your rights!

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