‘Tampon tax’ critics hope lawsuit can pressure Texas Legislature to repeal

AUSTIN — Six years of demands to repeal the “tampon tax” haven’t worked. Texas activists therefore seem ready to try a new tactic – mounting a lawsuit to pressure lawmakers.

Opponents of taxing menstrual-care products and a Houston silk stockings law firm said they were prepared to go all the way to the state’s highest civil court, if necessary, to seek repair. Imposing a state and local sales tax on feminine hygiene products violates a uniform taxation requirement of the Texas Constitution, and is pure sex discrimination, they said.

“The tampon tax is an additional financial barrier” for low-income women who are already cash-strapped and in some cases unable to afford sanitary napkins, a phenomenon known as “periodic poverty,” explained Sahar Punjwani.

Punjwani, 20, a former Houstonian who now attends the University of Chicago, has been advocating 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 against a decision by Comptroller Glenn Hegar’s office.

The ruling paves the way for a lawsuit in state court challenging the tax — primarily on the grounds that Hegar and his predecessors failed to fairly enforce a new sales tax exemption begun in the late 1990s for ” dressings for the care of wounds”.

In February, the Comptroller’s Office denied Punjwani’s April 2021 request for a $1.78 refund of Texas, City of Houston and Houston MTA sales taxes. She paid for them by buying $21.63 worth of tampons, panty liners and sanitary napkins from Doyle’s Pharmacy in Houston, according to the claim compiled by Baker Botts LLP, a 182-year-old Houston company whose lineage includes the great-grandfather of former Secretary of State James A. Baker III.

“Other wound care products like bandages, gauze, stuff like that, they’re not taxed because it’s considered wound care – basic necessities,” Punjwani said, now a sophomore at the University of Chicago. “Menstrual products should also be included in this category.”

Hegar spokesman Kevin Lyons declined to comment. Lyons cited a provision of state law that he said mandates confidentiality in “pending sales tax refund requests.”

‘The next step’

Punjwani, a graduate of the private Kinkaid school in Houston, recalled feeling disappointed that in last year’s regular legislative session a bill to lift taxation on menstrual care products didn’t pass. been adopted. It was the third session in a row that repeal had been attempted but failed.

“Clearly the members of the Legislative Assembly are not ready to listen right now, so this is the next step for us,” she said, citing a successful lawsuit in Michigan.

Similar lawsuits have helped a mix of red and blue states remove consumption taxes on feminine hygiene products, according to Jennifer Weiss-Wolf and Laura Strausfeld, co-founders of Period Equity, another national group pushing for a 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 is a robust national movement and Texas is really an exception right now, she said.

Since 2016, 14 states have repealed their stamp taxes, Weiss-Wolf said. “New Mexico is the latest to do so,” she said, joining another Texas neighbor that does not tax such products, Louisiana.

Meghan D. McElvy, Baker Botts’ partner handling Punjwani and the coalition’s protest against Hegar’s reimbursement denial, said Texas’ exemption of wound care dressings from the tax selling 6 1/4 cents of state and local sales taxes that do not exceed 2 cents isn’t defective as written. It is simply 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 meet the definition of a wound care dressing, they do not enjoy tax-exempt status, while other male-specific products, such as libido enhancers or prostate vitamins — over-the-counter vitamins or drugs — get tax-exempt treatment,” she said in an interview.

The comptroller’s office “liberally applied” the exemption for wound care dressings, McElvy said. It granted exemptions to eye patches (2003), skin staples (2010) and corn pillows (2020), she noted — “things that you wouldn’t think are there primarily to absorb the blood”.

Additionally, a 1972 amendment to the Texas Constitution states that laws cannot discriminate on the basis of sex, race, color, creed or national origin, McElvy noted.

Zero-rated men’s products

“The current comptroller’s tax regime treats women’s blood soak products differently than other gender-neutral blood soak 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 be reconsidered. “Only women menstruate and need to use feminine hygiene products. Therefore, women are disproportionately affected by the taxation of feminine hygiene products.”

Strausfeld of the nonprofit Period Equity said the Texas tampon tax also violates the equal protection clause of the 14th Amendment to the US Constitution because it targets a bodily function associated with women.

Austin Democratic Rep. Donna Howard, who carried the repeal bill for three sessions, noted that in 2011 the Comptroller’s Office ruled that veterinarian purchases of wound care items such as dressings, gauze, sutures and medical tape were exempt from sales tax.

“Something is exempt for animals, but it’s not exempt for people who use a product to stop bleeding,” Howard said.

Obstetrician-gynecologist John Irwin, who was chief of surgery at Women’s Hospital at Texas Medical Center in Houston 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 on these items, the state would forgo about $20 million in revenue each year, according to the Legislative Budget Council.

Howard, a veteran House budget writer, noted that this was a tiny slice of the more than $35 billion a year the state collects in sales tax.

“It’s what some in the appropriations (committee) call ‘budget dust,'” she said. “But ultimately it’s discriminatory – regardless” of what revenue would be lost.

‘The farther it’s gone’

Last year, she said, no House colleague opposed her bill to repeal the tampon tax. While identical measures weren’t heard in 2017 and didn’t get a vote from House tax editors on the Ways and Means Committee in 2019, the 2021 version allowed Ways and Means on a vote. bipartisan 10-0. But the vote on House Bill 321 came late, in the last month of the session. The bill died at the calendars committee, which controls bills that go to the House floor.

“I never heard anything (negative) from the members of Calendars,” Howard recalled.

Strausfeld of Period Equity, who is an attorney, said Hegar had the power to interpret lawmakers’ tax exemptions and could correct the injustice.

“Today the Comptroller could make that change — and bring Texas up to speed with the rest of the country,” she said.

In 2019, “we had a lot of people who bought menstrual products and then submitted refunds to the comptroller in Texas and… really staged a protest to try to flood the office with the argument that the tax was unconstitutional. “, recounted Strausfeld. “This (current) case is really an extension of the work that a lot of people have been doing for a few years in Texas.”

Lyons, Hegar’s spokesperson, 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 dismissed as the products were not exempt,” he said.

Zoe Kass, a high school student from Bellaire, took the day off to travel to Austin to testify in favor of Howard’s bill last year.

Although opponents of the stamp tax were notified of the committee meeting just two or three days before it was to take place, “people showed up, a lot of people testified and a lot of people submitted written comments. It was really exciting,” said 18-year-old Kass. working as a junior volunteer at the Obstetrics Clinic at Ben Taub Hospital in Houston 2 and a half years ago inspiring her to fight “menstruation stigma” and try to make it easier for poor women to access feminine hygiene products.

“Fortunately, he went the farthest ever,” she said of Howard’s bill.

Kass said she was excited to see what the planned trial could accomplish.

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