Around the country and the world, people are mobilizing for menstrual equity. Central to the policy agenda: accessible and affordable period products for everyone who needs them. As legislative interventions gain traction, advocates are also readying legal arguments to challenge unfair policies. Constitutional law scholar and dean of UC Berkeley Law Erwin Chemerinsky recently co-authored a Los Angeles Times op-ed proposing that the failure of states to exempt menstrual products from sales tax — the tampon tax — amounts to denial of equal protection under the Constitution.

In forging these claims, a question emerges: How can we recognize that barriers to menstrual access are a form of sex discrimination without erasing the lived experiences of trans men and non-binary people who menstruate, as well as women who don’t? Some arguments that challenge discriminatory laws based on sex-linked characteristics have made the point that “only women” menstruate, get pregnant, or breastfeed. But that is not a full or accurate portrayal — and menstrual stigma and period poverty can hit trans and non-binary people particularly hard: 

• Trans people are three times as likely to be unemployed and more than twice as likely to be living in poverty as the general population. Those who are disabled, people of color, or undocumented immigrants are especially likely to be unemployed and living in poverty.
• While free menstrual products are not uniformly provided in women’s restrooms, they are almost never available in men’s restrooms, even for pay. Men’s restrooms are also less likely to have a place to dispose of these products conveniently, privately, and hygienically.   
• Similarly, women’s homeless shelters sometimes provide menstrual products, but men’s typically don’t. Some domestic violence shelters exclude trans and non-binary people — even though more than half have experienced intimate partner violence. Those shelters often provide a variety of types of support, including access to menstrual products for those who need them.
• While access to menstrual products in women’s prisons is often inadequate, it is far worse in men’s prisons. Trans and non-binary people may be incarcerated in either.
• Menstruation is not the only reason trans and non-binary people may need menstrual products. Trans women and non-binary people may also need pads and liners for months after vaginoplasty, and occasionally at other times. Some who take estrogen also experience period symptoms such as pain and nausea and may need medication to manage these symptoms. Those who experience endometriosis or adenomyosis, conditions that can cause continuous heavy bleeding, often face barriers to treatment, as well as an ongoing and often unmet need for pads and tampons.

Simply stated: because limited access to and the cost of menstrual products can hit trans and non-binary communities especially hard, as a matter of policy, a holistic agenda for menstrual equity and access must include trans people. (We have a Menstrual Equity Toolkit for those interested in how to create one

But what about in the court of law?

The constitutional argument is straightforward. Any law that targets one sex — or one race, or one religion — is inherently discriminatory. In the context of the tampon tax, for example, Dean Erwin Chemerinsky harkened to a famous remark by Supreme Court Justice Antonin Scalia that a tax on yarmulkes is a tax on Jews. By analogy, a tax on menstrual products is a tax on women — even though not all women menstruate, and some men and non-binary people do.

Legally, the focus is on the intention behind the action. Targeting something associated with one group can show intent. This doesn’t require that allor only people from the targeted group do the activity.

Take yarmulkes again. Not all Jewish people wear yarmulkes, and some people who aren’t Jewish do wear yarmulkes (for example, if attending a Jewish religious service). Still, if a legislature decided to tax people for wearing yarmulkes, or to impose sales tax on yarmulkes but not similar items, that would be anti-Semitism, and it would violate the constitution. Similarly, imposing a sales tax on menstrual products but not similar items is sexist, and violates the constitution.

Discrimination is illegal even when it affects members of multiple groups. Feminist scholars have long pointed out that sexism can harm people other than women. For example, Paula England has pointed out the tendency to devalue labor traditionally done by women, even when it is done by men. Ruth Bader Ginsburg famously challenged a rule that denied widowed fathers benefits that widowed mothers received. The rule both discriminated against women workers, who couldn’t earn the same benefits for their families that men did, and against men who wanted the opportunity to care for their children.

We don’t need to erase trans or non-binary people to show that barriers to menstrual equity, such as the tax on menstrual products, are unconstitutional sex discrimination. This tax targets a bodily function associated with women for less favorable treatment. It relies on sexist ideas that women’s needs are frivolous and unnecessary. It is irrational, and it directly affects cis and trans women, trans men, and non-binary people. It’s unfair, unconstitutional, and illegal.

Gabriel Arkles, Senior Staff Attorney, ACLU LGBT & HIV Project,
& Jennifer Weiss-Wolf, Co-founder, Period Equity

From the continued separation of families, to attacks on asylum-seekers, to the largest immigration raid ever in a state, to an unprecedented number of immigrants jailed by ICE, this year was filled with new lows for the Trump administration.

The ACLU, partners, and activists have been fighting nonstop for immigrant communities across the country. ACLU activists took over 400,000 actions against Trump’s anti-immigrant agenda and in support of humane immigration policies. Even in today’s challenging political climate, we are seeing our immigrants’ rights movement grow and gain momentum. This year, Congress introduced important legislation and carried out a steady stream of oversight hearings. Below are some highlights from this year.

The Trump administration rescinded a number of critical programs that protected two million immigrants from deportation, including protections for Dreamers through Deferred Action for Childhood Arrivals (DACA), and immigrants from countries including Nepal, El Salvador, and Liberia through Temporary Protected Status (TPS) and Deferred Enforced Departure (DED). In June, after months of advocacy and massive public support, the House of Representatives passed the Dream and American Promise Act (H.R. 6). This was the first bill focused on granting a pathway to citizenship to pass a chamber of Congress since 2010. ACLU activists sent over 10,000 messages in support of the bill. 

The House of Representatives passed Rep. Veronica Escobar’s bill, the Homeland Security Improvement Act (H.R. 2203), which would increase oversight and provide meaningful accountability of ICE and CBP’s actions. Senator Udall introduced a Senate counterpart of the bill.

There were also a number of bills introduced this year that serve as the gold standard for a future administration and Congress committed to immigration reform. Last week, Rep. Chuy Garcia introduced the New Way Forward Act, which if enacted would lead to a dramatic and large scale reform of our existing punitive immigration enforcement system. The Act corrects injustices embedded in our immigration laws, many of which have enabled this administration’s cruel and inhumane assaults on noncitizens in our country and at the border. This bill would dismantle the draconian immigration laws passed in 1996 and would restore fundamental principles of due process and compassion to a deeply imbalanced immigration system.

Other important bills include Representative Jayapal and Senator Booker’s bill the Dignity for Detained Immigrants Act; Senator Durbin’s bill on solitary confinement; legislation by Senators Leahy and Murray to curtail the existing “100-mile border zone;” and Representative Brown’s bill on access to counsel for immigrants. 

And right now, funding for the Department of Homeland Security — specifically its sub-agencies ICE and CBP — is at the center of budget negotiations for the next fiscal year. Through extensive advocacy from organizations and constituents, there is an ongoing fight to ensure that our government’s budget does not give another raise to the president for continued attacks on immigrants. ACLU activists have made and sent almost 30,000 calls and emails to their representatives on the issue. 

Legislation, however, is just the tip of the iceberg. One of the best ways Congress wields its power is demanding answers of government officials through oversight hearings. Members can also call on non-government witnesses to provide a firsthand account of the impact of immigration laws and policies on real people. The ACLU has testified or been involved with numerous hearings this year — perhaps more than we’ve ever seen in a single calendar year. 

ACLU staff and clients provided expertise, submitted statements, and testified this year on numerous issues including: family separation; the deportation of veterans and service members; the lack of oversight, expansion, and abuses in detention; Trump’s attacks on asylum and immigrants along the border; deferred deportation for people with serious medical conditions; and the unprecedented Mississippi ICE raids. 

The threat to immigrants’ rights is far from over. The ACLU will continue the fight against Trump’s abuses and hold members of Congress accountable to our values and the Constitution. 

Part of an end of year wrap-up series. Read more:

2019 was a Watershed Year in The Movement to Stop Solitary Confinement

The Death Penalty in 2019: A Year of Incredible Progress, Marred by Unconscionable Executions

The 2020 Election Promises Record Turnout

Under Attack by Trump, Immigrant Justice is Advancing in the States

The Battle for Abortion Access is in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We Won on Multiple Fronts.

Madhuri Grewal, Federal Immigration Policy Counsel, ACLU National Political Advocacy Department

Back in 2016, then President of the United States, Barack Obama, called solitary confinement “an affront to our common humanity” and ordered the Justice Department to implement reforms to the practice in U.S. prisons. Although just three short years ago, in too many ways it seems a different age: We have seen a resurgence of the “tough on crime” rhetoric that favors harsh policies and approaches that we know don’t work. Despite these painful setbacks in other areas, the strength of grassroots movements, political leadership, and growing public awareness have created a robust and growing movement to end solitary conferment — known to those of us in the justice community as Stop Solitary — dedicated to ensuring that this torturous practice ends up in the dustbin of history where it belongs.

In 2019, we saw national momentum to reign in the abusive use of solitary confinement expand faster than ever before. This year was record-setting in terms of reforms we saw introduced in state legislatures. Twenty-eight states introduced legislation to ban or restrict solitary confinement, and twelve states passed reform legislation: Arkansas, Connecticut, Georgia, Maryland, Minnesota, Montana, Nebraska, New Jersey, New Mexico, Texas, Washington, and Virginia. Some of these new laws, such as those in Connecticut and Washington, present tentative and piecemeal approaches to change. But most represent significant reforms to existing practices that promise to facilitate more humane and effective prisons, jails, and juvenile detention centers.   

New Jersey passed the strongest law yet in the nation, limiting the length of solitary confinement to 20 consecutive days for all prisoners and detainees. Before the passage of this law, New Jersey put people in solitary for months or even years at a time. The new law ends that practice and also protects vulnerable populations from the harms of solitary, including people under 21 and over 65, pregnant and post-partum people and those who have recently suffered a miscarriage or terminated a pregnancy, LGBTQ people, those with serious medical conditions, and those with various forms of mental health or developmental disabilities.

Nebraska’s law also stands out: It bans any practice that looks like solitary for minors, pregnant people, and those with serious mental illness, developmental disabilities, or traumatic brain injuries. New Mexico also moved aggressively to ban solitary for minors and pregnant people and ban its use on individuals with serious mental illness. Several states, including Georgia, Texas, Montana, and Maryland passed laws prohibiting the use of solitary on pregnant people, and Montana, Maryland, and Arkansas also passed prohibitions on the use of solitary confinement on minors. In total, five states limited the use of solitary confinement on minors, and six prohibited its use on pregnant people. We even saw this issue taken up at the federal level, with the first briefing in the U.S. House of Representative highlighting The Solitary Confinement Study and Reform Act of 2019, a bipartisan bill which would establish a national commission to study the problem of solitary confinement and recommend national standards for reducing its use.

The one major disappointment came from New York, where the widely-supported HALT Solitary Bill was never brought to a vote after legislative leaders cut a deal with New York Governor Cuomo to let the prison administrators write their own reform policies. Those proposed rules have already been widely panned as woefully inadequate to stop the torture of solitary in New York State. Despite these setbacks, advocates in New York continue to push for passage of HALT and the implementation of real reform in the state, including a 15-day limit on solitary confinement that conforms with the international human rights standards set forth in the United Nations Standard Minimum Rules on the Treatment of Prisoners, now known as the Mandela Rules. If HALT passes in 2020, New York will be the first state in the nation to incorporate the Mandela Rules into its laws.  

Advocates across the country are now gearing up to introduce more legislation to Stop Solitary and to ensure that the significant reforms passed in 2019 are actually implemented by corrections institutions as the laws require. State by state and community by community, solitary survivors, civil rights advocates, faith leaders, medical professionals, politicians, and interested members of the public are joining together to bring an end to the torture of solitary confinement in the United States. Much has changed since President Obama spoke of “our common humanity” in 2016, but that humanity remains the same. It demands that we end solitary confinement once and for all — to the protect the people it harms and the communities they will return to, but also so we can be the type of country we aspire to be.           

Part of an end of year wrap-up series. Read more:

Under Attack by Trump, Immigrant Justice is Advancing in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We won on Multiple Fronts

The Battle for Abortion Access is in the States

The 2020 Election Promises Record Turnout

The Death Penalty in 2019: A Year of Incredible Progress, Marred by Unconscionable Executions

Amy Fettig, Deputy Director, National Prison Project, ACLU