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Filing a lawsuit to end Michigan’s tampon tax

Filing a lawsuit to end Michigan’s tampon tax

Last summer, LOLA and Period Equity teamed up to launch Tax Free. Period., a legal campaign demanding that 35 states end the “tampon tax” — the discriminatory tax on period products like pads and tampons. 

Since then, a lot has happened. Five states eliminated the tax following our launch: Ohio, Rhode Island, Utah, Washington, and California (through July 2023). We went on the road and mobilized thousands of women to pressure their states in a cross-country Tampon Tax Protest. And last month, three of those women filed a class action lawsuit against their home state, Michigan, claiming discrimination on the basis of sex by the state and its Department of Treasury.

It’s a serious stand against a serious issue. Since the tax on period products only applies to individuals who menstruate, it is sex-based discrimination — unconstitutional and illegal. Last year our campaign told states we’d see them in court if they didn’t remove the tampon tax, and Period Equity’s lawsuit against Michigan is proof that we meant it. 

We spoke to Laura Strausfeld and Jennifer Weiss-Wolf, co-founders of Period Equity and the force driving Tax Free. Period’s first lawsuit, about what this step means, and where things go from here.

LOLA:

This might be the first lawsuit for Tax Free. Period, but it isn’t the first lawsuit Period Equity has filed against a state over the tampon tax. Can you tell us why you decided to team up with LOLA to continue this fight?

Laura:

In 2016, 40 states still had the tampon tax. Period Equity was formed that year, after the two of us (Jen and Laura) worked together to file a lawsuit against New York State that resulted in the removal of the tampon tax there. Over the next few years, the number of states came down to 35. Progress, for sure, but we felt that with the right support we’d be able to do a lot more, and finally end the tampon tax in America.

That’s when we partnered with LOLA to do what they do so well: engage the public, and build a strong community of advocates around an issue. Because of this partnership with LOLA, we leveraged our resources to recruit and assemble over 50 pro bono attorneys and law students around the country to research and prepare lawsuits to challenge the tampon tax.

LOLA:

What was behind the decision to file a lawsuit now, during a global pandemic?

Jen:

The coronavirus has ended up becoming one of our strongest arguments for states to remove the tampon tax. The fallout from COVID-19 has disproportionately affected women in myriad ways. Women make up the majority of frontline workers risking their lives to provide health care, childcare, and other essential services. At the same time, female unemployment is at a record high, because the pandemic has devastated employment in service occupations with high female employment like restaurants and hospitality. Now, more than ever, tax relief, including eradicating the tampon tax, is vital.

LOLA:

Why did you choose Michigan first?

Laura:

Michigan, like a lot of states, is negotiating its budget right now. Legislators are putting forth all sorts of ideas about how to cut costs or raise revenues in their budget. To not see discussion of the tampon tax — despite elimination bills having been proposed in the state’s House and Senate, despite years of advocacy on the ground by Michiganders, and despite support from the governor and attorney general — was not something that we could ignore. The only option we had left to push this movement forward is by lawsuit.

Another reason we chose Michigan is that we — Period Equity, the plaintiffs, and the lawyers representing the plaintiffs — hope the state can take a lead on this issue. The complaint for the case claims that Michigan’s government can actually make the change without the legislature. There are a number of ways the state can make this change now. We’re hoping they take action.

LOLA:

So what happens next with the lawsuit?

Jen:

Lawsuits are different from public engagement campaigns and advocacy campaigns, because when you file a lawsuit, you are entitled to an answer. You file a complaint, and the state has to answer. So that’s what’s next with the lawsuit…we’re waiting for a response from the state.

LOLA:

What does this lawsuit mean for Tax Free. Period., and the movement to end the tampon tax?

Jen:

It means that we mean what we say. That we have the resources to take the states to court and to put forth our arguments that the tampon tax is unconstitutional, to bring along leading attorneys and law school and constitutional scholars around the country. It may be that a court along the way doesn’t rule in our favor. But we believe strongly that the ultimate decision will be in our favor.

LOLA:

How can readers get involved?

Laura:

It’s important to note that no one is publicly supporting the tampon tax. No one is saying it’s fair, equitable, or constitutional. But what they’re doing is putting us off. That’s one reason why LOLA’s partnership has been so valuable: the more people get involved, the more we can finally see results. The two most meaningful ways to take action are to participate in the Tampon Tax Protest and to call state representatives in Michigan and the other 29 states that tax tampons. It’s clear to states now that we mean what we say, that we will file lawsuits, but we can expedite this movement by keeping up the pressure.

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