AUSTIN, Texas — Six years of demanding repeal of the “tampon tax” haven’t worked. So Texas activists appear poised to try a new tack — mounting a lawsuit to build pressure on lawmakers.
Opponents of taxing menstrual care products and a silk-stocking Houston law firm have said they’re prepared to go all the way to the state’s highest civil court, if necessary, to seek vindication. Charging state and local sales tax on feminine hygiene products disobeys a uniform-taxation requirement in the Texas Constitution, and it’s pure sex discrimination, they said.
“The tampon tax is an added-on financial barrier” for low-income women already strapped for cash and in some cases unable to afford sanitary napkins, a phenomenon known as “period poverty,” explained Sahar Punjwani.
Punjwani, 20, a former Houstonian now attending college in Chicago, has advocated for repeal for four years, since she came across the Instagram account of a group called Period: The Menstrual Movement.
Late Thursday, Punjwani and a 2-year-old group she helped organize, the Texas Menstrual Equity Coalition, filed a formal protest of a decision by Comptroller Glenn Hegar’s office.
The move sets the stage for a lawsuit in state court challenging the tax — primarily on grounds that Hegar and his predecessors haven’t fairly applied a new sales tax exemption begun in the late 1990s for “wound care dressings.”
In February, the comptroller’s office denied Punjwani’s April 2021 demand for a $1.78 refund of Texas, city of Houston and Houston MTA sales taxes. She paid them while buying $21.63 worth of tampons, panty liners and sanitary pads at Doyle’s Pharmacy in Houston, according to the claim assembled by Baker Botts LLP, a 182-year-old Houston firm whose lineage includes the great-grandfather of former Secretary of State James A. Baker III.
“Other products for wound care such as Band-Aids, gauze, stuff like that, they don’t have a tax on them because it’s considered to be wound care — basic necessities,” said Punjwani, now a sophomore at the University of Chicago. “Menstrual products should be included within that category as well.”
Hegar spokesman Kevin Lyons declined to comment. Lyons cited a provision of state law he said compels confidentiality in “pending sales tax refund claims.”
‘The next step’
Punjwani, a graduate of Houston’s private Kinkaid School, recalled feeling disappointed that in last year’s regular legislative session, a bill to lift taxation of menstrual care products didn’t pass. It was the third consecutive session repeal had been attempted but fell short.
“It’s clear that folks in the Legislature are not ready to listen right now, so this is the next step for us,” she said, citing a successful suit in Michigan.
Similar lawsuits have helped prod a mix of red and blue states to remove consumption taxes on feminine hygiene products, according to Jennifer Weiss-Wolf and Laura Strausfeld, co-founders of Period Equity, another national group pressing for sales-tax relief.
Texas is the most populous of the 27 states that continue to apply sales tax to menstrual care products, Weiss-Wolf noted.
“There’s a robust national movement and Texas is very much an outlier right now,” she said.
Since 2016, 14 states have repealed their tampon taxes, Weiss-Wolf said. “New Mexico is the latest to do so,” she said, joining another Texas neighbor that doesn’t tax such products, Louisiana.
Meghan D. McElvy, the Baker Botts partner handling Punjwani and the coalition’s protest of Hegar’s refund denial, said Texas’ exemption of wound care dressings from the state’s 6 1/4-cent sales tax and local sales taxes that max out at 2 cents isn’t defective as written. It’s just being applied unfairly — and in violation of the Texas Constitution’s requirement that “taxation be equal and uniform,” she said.
“While feminine hygiene products are medically necessary and satisfy the definition of wound care dressing, they’re not being given tax-exempt status while other male-specific products like libido enhancers or prostate vitamins — over-the-counter vitamins or drugs — are given tax exempt treatment,” she said in an interview.
The comptroller’s office has “liberally applied” the exemption for wound care dressings, McElvy said. It granted exemptions to eye patches (2003), skin staples (2010) and corn cushions (2020), she noted — “things that you wouldn’t think are there primarily to absorb blood.”
Also, a 1972 amendment to the Texas Constitution says laws can’t discriminate on the basis of sex, race, color, creed or national origin, McElvy noted.
Male products tax-exempt
“The Comptroller’s current tax scheme treats blood absorption products for women differently than both other gender-neutral blood-absorption products and male-specific products like over-the-counter libido enhancers and prostate vitamins,” she wrote in Punjwani and the coalition’s request for Hegar’s office to reconsider. “Only women menstruate and need to use Feminine Hygiene Products, and therefore women are disproportionately affected by the taxation of Feminine Hygiene Products.”
Strausfeld, of the nonprofit Period Equity, said Texas’ tampon tax also violates the equal protection clause found in the 14th Amendment of the U.S. Constitution because it targets a bodily function associated with women.
Austin Democratic Rep. Donna Howard, who has carried the repealer bill for three sessions, noted that in 2011, the comptroller’s office ruled that veterinarians’ purchases of wound care items such as dressings, gauze, sutures and medical tape were exempt from sales tax.
“Something’s exempt for animals but it’s not exempt for people who are using a product to stanch bleeding,” Howard said.
Obstetrician-gynecologist John Irwin, who was chief of surgery at the Women’s Hospital in Houston’s Texas Medical Center until 2016, said in a letter supporting Punjwani’s protest that menstrual care products prevent bacterial contamination and “are medically necessary devices for modern life.”
If it removed sales tax from such items, the state would forego about $20 million of revenue each year, according to the Legislative Budget Board.
Howard, a veteran House budget writer, noted it’s a tiny sliver of the more than $35 billion annually the state collects in sales tax.
“It’s what some in Appropriations (Committee) refer to as ‘budget dust,’” she said. “But bottom line, it’s discriminatory — regardless” of the revenue that would be lost.
‘Farthest it’s gone’
Last year, she recounted, no House colleagues objected to her tampon tax repealer bill. Although identical measures didn’t get a hearing in 2017 and didn’t get a vote from the House’s tax writers on the Ways and Means Committee in 2019, the 2021 version cleared Ways and Means on a bipartisan vote of 10-0. But the vote on House Bill 321 came late, in the session’s final month. The bill died in Calendars Committee, which controls which bills go to the House floor.
“I never heard anything (negative) from Calendars” members, Howard recalled.
Period Equity’s Strausfeld, who’s a lawyer, said Hegar has the authority to interpret lawmakers’ tax exemptions and could correct the injustice.
“Today, the comptroller could make that change — and bring Texas up to date with the rest of the country,” she said.
In 2019, “we had many people buy menstrual products and then submit refunds to the Texas comptroller and … really staged a protest to try to flood the office with the argument that the tax was unconstitutional,” Strausfeld recounted. “This (current) case is really an extension of the work that a lot of people have been doing for quite a few years in Texas.”
Lyons, the Hegar spokesman, said that in January 2020, the comptroller’s office received about 40 claims for refunds of sales tax paid on feminine hygiene items.
“These claims were all denied due to the products not being exempt,” he said.
Zoe Kass, a Bellaire High senior, took a day off from school to travel to Austin to testify in favor of Howard’s bill last year.
Though tampon tax opponents got word of the committee meeting just two or three days before it occurred, “people showed up, lots of people testified and lots of people submitted written comments. That was really exciting,” recounted Kass, 18. She credits her work as a junior volunteer in the obstetrics clinic at Houston’s Ben Taub Hospital 2 1/2 years ago with inspiring her to fight “stigma about menstruation” and try to ease poor women’s access to feminine hygiene products.
“Luckily, it did get the farthest it’s ever gone,” she said of Howard’s bill.
Kass said she’s eager to see what the anticipated lawsuit can achieve.
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