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.”