Texas already has a laundry list of less-than-essential items exempt from the state’s 6.25 percent sales tax, from yachts to male libido enhancers. Yet, when advocates suggest adding something as essential as tampons to that list, lawmakers start acting like a dinner guest trying to avoid picking up the check.
“‘We’re dealing with COVID; the budgets are already very tight; it’s going to be hard to have any kind of sales tax exemption,’” says Sahar Punjwani, with Texas Menstrual Equity Coalition, recounting excuses her youth-led group got from lawmakers. “It’s like, ’Well, if you’re not invested in making any sort of revenue off of those pretty mundane items that aren’t essential to health or wound care or anything like that, why are you so invested in making money off of a basic necessity?”
Texas is one of a slim majority of states — 26 in all— with a sales tax on menstrual products, even as a national effort to undo the so-called “tampon tax” continues to build momentum. In February, Michigan became the latest state to do away with its 6 percent tampon tax after its governor signed a bipartisan bill into law applicable to tampons, panty liners, menstrual cups, sanitary napkins and other products connected with the menstrual cycle. New York, Florida and Nevada have all dropped their tax on menstrual products in recent years, as have Britain, Australia and India.
After Punjwani realized the Michigan bill passed in part due to a 2020 lawsuit challenging the legality of the state’s tax on menstrual products, the Fort Bend County native and University of Chicago sophomore started organizing. Last year, the menstrual equity coalition found a law firm, Baker Botts LLP, that would represent them pro bono. Then last April, Punjwani took a trip to Doyle’s Pharmacy in Houston. She purchased $21.63 worth of tampons, panty liners and sanitary pads, kept her receipts, and submitted her claim for a $1.78 refund to the state Comptroller’s Office. In February, the comptroller denied her claim.
The coalition is protesting that ruling, and is requesting a hearing to argue that menstrual products qualify as tax-free “wound care” items such as band-aids or gauze. The state tax code’s “wound care dressing” exemption is defined as “an item that absorbs wound drainage, protects healing tissue, maintains a moist or dry wound environment…or prevents bacterial contamination.”
That’s similar to how Dr. John Irwin, an OB-GYN and clinical associate professor at Baylor College of Medicine, describes a tampon: “As a threshold matter, menstrual products used by women during their monthly menstruation cycles absorb wound drainage (menstrual blood) created by the tissue damage in the uterine cavity, much like a Band-Aid absorbs blood and drainage from an open, raw wound.”
Case closed? Not quite. Despite the clear similarities, tax experts say the Comptroller’s Office has consistently denied wound care refunds for taxes paid on tampons. The comptroller can’t legally issue a policy that contradicts state tax law, and the Legislature has been absent on changing the statute with respect to menstrual products. State Rep. Donna Howard, an Austin Democrat, has filed a bill to end the tampon tax in every legislative session since 2017. None have made it to the floor.
Such inertia is not only frustrating but, on its face, discriminatory. The legal argument is simple: Women menstruate, therefore they are disproportionately affected by the sales tax on menstrual products. Continuing to tax those products, while giving items such as male libido enhancers and prostate vitamins a free ride, is the kind of blatant inequity that Punjwani’s protest is aimed at and that the state should remedy. Laura Shoemaker, one of the attorneys representing the coalition, plans to exhaust every administrative avenue before deciding whether to move forward with a lawsuit.
While Texas lawmakers have passed carve-outs for a host of seemingly arbitrary items — cowboy boots, anyone? — there are many exemptions with solid public policy rationales. Groceries, for instance, are not subject to sales taxes. Medical supplies, prescription drugs, and manufacturing equipment are also tax-exempt.
The perception that tampons are somehow less necessary than these items is a reflection of how we talk, or don’t talk, about menstruation. The stigma around periods has a chilling effect for many women and girls, forcing some into “period poverty” — defined as inadequate access to menstrual hygiene products and education. While research on menstrual health is limited, a 2019 study published in “Obstetrics and Gynecology“ found nearly 64 percent of low-income women in St. Louis, Mo., could not afford menstrual hygiene products in the previous year. A third of the women surveyed used cloth, rags, tissues, toilet paper, even children’s diapers, instead. The current economic climate, with rising inflation squeezing household budgets, only exacerbates this problem.
Opponents of ending the tampon tax argue doing so would rob the state of critical sales tax revenue. Let’s put that into perspective: The state estimates $20 million in lost revenue, a tiny sliver of the roughly $36 billion Texas raked in from sales tax receipts in the 2021 fiscal year. The minimal lost revenue fails to take into account the potentially positive economic impact of putting more money in the pockets of women who have to regularly purchase these items. It’s estimated that over the course of her lifetime, the average American woman will experience 450 periods and pay between $100 and $225 in sales taxes.
We support the spirit of Punjwani’s protest. The comptroller should rule that tampons qualify as wound care items worthy of a tax refund. Better yet, lawmakers should end the tampon tax during the 2023 legislative session, when Howard plans to file her bill again.
It might well take a lawsuit, such as the one filed in Michigan, to get the Legislature to take this issue seriously, but it shouldn’t have to. Why fight another costly lawsuit with taxpayer dollars just to preserve a regressive tax on menstrual products that contributes a tiny fraction of state revenue?
Let’s be honest. It’s not really about the money. It’s about a simple lack of interest by those in power, mostly men who aren’t affected by the tax and can’t be bothered to care. It’s high time that changed.
Houston Chronicle
