Jennifer Simon

Jennifer Simon

The Essential Health Product Dignity Act (Senate File 27), killed in the Senate Revenue Committee last week, contained a provision that would have ended the so-called tampon tax – the sales tax imposed on period products. It’s a tax paid only by people who menstruate.

Consider that men can walk into any public bathroom and access all the hygiene supplies they need: soap, toilet paper, paper towels. Women and girls cannot. Girls who haven’t brought their own period products to school either have to go to the nurse’s office to ask for a pad or tampon or pay for the product from a dispenser. This assumes “period poverty” – inadequate access to period products – hasn’t kept them out of school in the first place.

According to a 2019 survey: “Two-thirds of [U.S.] women surveyed did not have the resources to buy menstrual hygiene products at some point during the last year, and one-fifth of respondents struggle to afford period products on a monthly basis. During these times, they may not feel able to leave their homes, go to work, or participate in civic life.” In other words, many women and girls can’t afford tampons or pads – and they stay home because of it.

Period products are medically necessary – a point reinforced in former President Trump’s CARES Act legislation. Yet they are the only such products subject to sales tax. They also can’t be paid for with food stamps or Medicaid.

Sex-based discrimination? An active lawsuit in Michigan suggests it is. It asserts that Michigan’s 6 percent sales and use tax on menstrual products violates the equal protection clauses of the U.S. and Michigan constitutions.

But back to the bill and the debate in Senate Revenue.

It failed to advance out of committee on a 2-3 vote. Two of the three “no” votes came from members concerned about the fiscal note – sending the clear message that expecting women to carry the burden of this state’s revenue problem is A-OK.

For the record: I firmly believe Wyoming needs to modernize its tax structure to address the structural deficit. That will require us to create a level playing field where all individuals pay their fair share, and we’re not unfairly and unnecessarily shifting the burden off of some people and onto others, as we are in this case.

The third no vote came from avowed tax opponent Sen. Tom James, R-Rock Springs, who deemed the effort to repeal this discriminatory tax “unfair” to men. His colleague, Sen. Stephan Pappas, R-Cheyenne – who cast one of the two aye votes – refuted this: “Women do not have the choice of having a menstrual cycle or not having a menstrual cycle.”

People who perpetrate discrimination rarely notice it. Sometimes they even think they’re the ones being discriminated against.

Sen. James called for an amendment to make the bill “gender neutral.” “It segregates and favors one sex over another,” he said. “This is not what we’re about in The Equality State.”

He talked about the link between hygiene and health, and asked for items like foot powder to be included in the exemption. Sen. James is correct in the importance of hygiene – something other states have addressed by determining a class of products “medically necessary” – but his remarks overlooked the facts of this matter.

He was right that the law shouldn’t favor one sex over another. He just had it entirely backward.

The existing tax favors men over women. Men don’t have to pay it. Menstruating women do. The U.S. and Wyoming constitutions call that discrimination. This bill would have fixed that.

What’s more, the tampon tax doesn’t meet Wyoming Taxpayers Association’s basic criteria (cited by WTA’s director earlier in the day in opposition to the tobacco tax, which passed) that taxes need to be justified, stable, transparent and equitable. Yet there was no testimony from WTA or any other tax-focused group. That they didn’t comment on this tax is another reminder that gender regularly falls into The Equality State’s blind spot.

The Essential Health Product Dignity Act contained a provision that would have ended discrimination. It would have shielded Wyoming from potential litigation. And it would have helped the state live up to its Equality State moniker.

But maybe, as members of our Legislature like to say, the “equality” part of “Equality State” is “not quite ready for primetime.”

Jennifer M. Simon is senior policy adviser at the Equality State Policy Center and the founder of the Wyoming Women’s Action Network. Gov. Matt Mead appointed her to the Wyoming Council for Women in 2015.

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