Destigmatizing a Natural Process
From the University of Baltimore Magazine, Fall 2020
By: Christianna McCausland, a writer based in Baltimore.
Margaret Johnson was shocked to realize that women in Maryland prisons did not have free access to menstrual products. She saw this as a social justice issue, one she learned about through Reproductive Justice Inside Coalition (RJIC), an organization where one of Johnson’s law students was an intern working on reproductive health policy.
“The prison came to RJIC and asked if we could do a menstrual product drive for inmates,” says Johnson, a professor of law at UB and co-director of UB’s Center on Applied Feminism. “That opened my eyes to this issue of access and to areas where menstrual injustice was happening.”
Without access to menstrual products, inmates would deal with the indignity of bleeding through their clothing. In addition, guards and prisoners who could afford to purchase products from the commissary could use them as currency for coercion. Johnson calls these unfair practices “ridiculous. Society takes people who menstruate and targets them as ‘other,’ as people to be controlled and oppressed in ways they would not for other people.”
This lack of justice in the prison system was shockingly obvious, but other examples Johnson cites are more insidious. Take, for example, the case of a 911 operator experiencing heavy, irregular bleeding due to perimenopause. Unable to leave her post, she bled onto her chair and was fired. And according to a lawsuit filed in 2019 by 19 states on behalf of migrant detainees at the U.S. border, access to menstrual products at Homeland Security-run facilities is often extremely limited or nonexistent.
Most recently, Johnson’s efforts involve working to end discrimination at state bar exams. In many states, menstruators (Johnson uses the gender-neutral term to include transgender and non-binary people) are not allowed to bring products to the days-long exam. One justification is that someone might try to cheat by writing answers on a menstrual product.
“They permit people to bring in laptops and people wear clothes. It’s possible someone stuffed the Rule Against Perpetuities into their underwear, too, but the bar doesn’t tell people they have to come naked to the exam,” Johnson says.
“A world with menstrual justice is one that includes education about menstruation and normalizing menstruation.”
Johnson explains that taboos against menstruation go back millennia. From ancient philosophers to early religious texts, many cultures are rife with myths that menstruators are dangerous or bring bad luck. Even today, she says sex education can provide woefully inadequate information about menstruation. Rather than seeing menstruation as something natural that happens to a huge portion of the population every month, society has built structures of secrecy and created an environment ripe for bullying, harassment and discrimination.
“A world with menstrual justice is one that includes education about menstruation and normalizing menstruation,” says Johnson.
In 2018, UB’s Bronfein Family Law Clinic, in collaboration with RJIC, helped pass a law mandating that prisons provide inmates with free menstrual products. Johnson was also part of a coalition to get free products in Maryland public schools. While that bill is currently tabled due to the COVID-19 pandemic, Johnson’s law students did score another big win: after petitioning the dean, UB’s law school now provides free products in all women’s and gender-neutral bathrooms.
Last year Johnson traveled to Geneva, Switzerland, as one of two U.S. representatives to a United Nations-hosted advisory group evaluating the effectiveness of policies on menstrual health and hygiene worldwide. Here in the United States, Johnson would like to see access to free menstrual products improved until they are as available in restrooms as hand soap.
“Menstruation has been hidden for so long,” she says. “And it has not been built into our public policy and legal structures for what we think of as a fair and equitable society.”
Menstrual Products and the Bar: Advocacy Seeks to Create Equal Bar Exam Testing Conditions for Menstruators
We can all recall the stress, fear, and worry that accompany taking the bar exam. About half of us also were anxious we would have to manage our period in the middle of this awful two-to-three-day ordeal. Bar examiners across the country have made this prospect far more daunting than it needs to be by not treating menstruation as the natural biological process that it is.
Without proof of any test-taker having ever cheated using a tampon or pad, some states have chosen to stigmatize and potentially penalize people who have their periods with draconian policies prohibiting bar examinees from bringing their own menstrual products with them. Other states have failed to adopt or communicate clear policies on the subject, increasing test-takers’ anxiety: one should not have to waste time researching the Bar Examiners’ hard-to-find policies or calling their offices for answers—which may, or may not, yield consistent information.
The harm here is four-fold: 1. It is wrong to make test-taking conditions more challenging for people based on the fact they menstruate; 2. It is wrong to limit test-takers to random products selected by Bar Examiners that could put test-takers’ health and menstruation management at risk; 3. It is wrong to exclude text-takers from any menstrual products simply because they do not use the women’s restroom; and 4. It is wrong to convey the harmful message that all people who menstruate are untrustworthy and do not belong in the legal profession.
Some states, including Texas and Pennsylvania, prohibited exam-takers from bringing in their own menstrual products, offering to provide a limited and unpredictable set of products in the women’s bathroom. (After much advocacy, Texas changed its rule for the September exam, though it is unclear if this is a permanent change.) This does not solve the problems these states created in the first place by banning test-takers from bringing in their own products. People who menstruate need their own products because menstrual products are not “one size fits all”: menstruaters require different sizes and levels of absorbency in their products to best fit their body and menstrual flow.
Use of the wrong size product can lead to everything from pain and discomfort to toxic shock syndrome (if too large) and time-consuming, uncomfortable, and disruptive leaks (if too small). Further, some individuals require hypoallergenic products to protect against allergic reactions. If not provided, applicants may experience vaginal itching or other problems caused by using allergen-containing tampons or pads inside or adjacent to their bodies. All of these consequences are awful enough on their own; here, they create an unconscionable risk of derailing exam performance.
In addition, by limiting test-takers from bringing in their own products and then providing products only in the women’s restrooms, Bar Examiners relegate transgender men and nonbinary persons who may menstruate, and who may use the men’s restrooms or all-gender restrooms, to having no access to menstrual products during the bar exam.
Other states allow test-takers to bring their own products, but require them to be packaged in a clear plastic bag—with some states mandating that the product be unwrapped. This last requirement makes no sense: the wrapper both keeps the product hygienic before being inserted into or placed adjacent to one’s body and provides an efficient way to safely dispose of used products, reducing janitorial staff’s exposure to bodily fluids. Further, removing the wrapping exposes the adhesive on the bottom of some pads, rendering them practically useless when the menstruator tries to unstick them from the clear plastic bag.
As much as we want to destigmatize menstruation and eradicate the embarrassment and taboo of being seen with a tampon or pad, it remains an invasion of privacy to require test-takers to carry their products in a clear plastic bag, revealing to a proctor (and possibly a classmates, colleagues, or future opposing counsel) that one has or expects to get their period during the exam. (One North Carolina bar exam test-taker reported that a proctor asked her if she “really needed those” while inspecting her plastic bag of menstrual products.) Finally, this intrusion is even more painful for, and potentially outs, transgender men and non-binary law graduates who may not be public about their biological sex. It may even set them up for bigoted harassment—during the biggest exam of their lives.
Other states allow test-takers to bring their own products and do not require them to be carried in a clear bag—but, they must check them with a proctor or retrieve them outside the exam room before heading to the restroom. This “solution” means that a menstruating person with will have to take vital time away from the exam (or a break between sections of the exam) to obtain their menstrual products before using the restroom. This “time tax” is as unacceptable as the other approaches described above.
At least some states treat people who menstruate without such bizarre suspicion, allowing them to bring in and keep their own products with them during the exam, and use them as needed during the test—without having to ask a stranger for their own personal possessions. To date, there have been no known accusations of test-takers trying to do the impossible: write helpful information on a pad or tampon to give them an edge on the exam or smuggle in written answers inside the product’s wrapping.
The lack of uniformity of equity-based rules permitting access to one’s own menstrual products is unacceptable and must be changed. Thankfully, in the age of social media, law graduates have taken the lead on this advocacy, sharing the hurdles they are facing on social media and asking state Bar Examiners to eliminate these outrageous rules, largely under the #bloodybarpocalypse hashtag.
Once we saw their posts, the three of us, working with fantastic former clinic students of Fordham and UDC, began advocating that all state Bar Examiners adopt better menstrual products policies. We drafted a letter to the National Conference of Bar Examiners (NCBE)—co-signed by over 2800 law professors, law students, law school graduates, and lawyers in under 24 hours. We also sent letters to Bar Examiners in each state that administered an in-person July bar exam and did not have a clear, acceptable policy in place. All of these efforts led to some quick changes.
The NCBE contacted state Bar Examiners and informed them that menstrual products were not included in the NCBE’s “prohibited paper” category and that test-takers should be able to bring in their own products. The press started asking questions of the state Bar Examiners. And state Bar Examiners began changing or clarifying their policies, with some confirming to examinees that they could bring personal menstrual products to the exam. For instance, West Virginia Bar Examiners insisted that they permitted products in the exam room, even though their website said differently. Texas state Bar Examiners changed their policy from not permitting products to permitting them at its September exam. (The state has issued contradictory statements, however, about whether this change is permanent.)
This positive change is not, however, uniform: even those states that have adopted equitable policies must be monitored to ensure they are adopting best practices. In our efforts to get accurate and honest information from state Bar Examiners across the country, it has been deeply disconcerting to learn how many jurisdictions are silent on whether examinees may bring in their own menstrual products; have informal policies that contradict written statements about what items are allowed in the exam (e.g., not listing menstrual products in the list of items test-takers can bring in, but informally allowing them); or have stubbornly held onto their recalcitrant policies.
Equally unacceptable, many Bar Examiners will not share the documentation that they say embodies their policies (e.g., generic letters to test-takers informing them what they can and cannot bring into the exam; postings on their web sites behind a security wall). Without this proof, there is no accountability and the true practices of these states remain unknown.
As we reach out to jurisdictions administering in-person exams in the coming months, our demands are clear: Bar Examiners must issue explicit policies permitting examinees to bring their own menstrual products in to bar exams, in an opaque container or on their person, and to publish these policies on their websites. Other bar-related policies that can have disproportionate effects also must be changed. For instance, examinees needing to pump their breastmilk must be given ready accommodations and bathroom access must not be limited as it affects both pumpers and menstruators.
To learn more about all of the advocacy efforts in this area, check out Menstrual Equity and the Bar Exam: Round Up of Op-Eds and Other Media Coverage on the Feminist Law Professors blog and follow the hashtag #MPandTheBar. If you want to get involved in this work, let us know. And no doubt other activists working on the pumping and bathroom access issues would welcome assistance too. There is, unfortunately, plenty of work to be done.
See also: Margaret E. Johnson, Elizabeth B. Cooper, and Marcy L. Karin, “Stop the Stigma Against Menstruation; Starting with the Bar Exam,” National Jurist, July 28, 2020.
Menstrual Products Project
The University of Baltimore School of Law recently began implementing a student-developed proposal to provide free menstrual products for all menstruators, women, transgender men, gender nonbinary persons, and intersex persons, at the law school. Because menstruation is a natural bodily process affecting over half the population, menstrual products, such as tampons and pads, should be regarded as fundamental necessities to the academic and social environment, as accessible as toilet paper and soap dispensers. As such, a group of like-minded University of Baltimore School of Law students, under the guidance of Professor Margaret E. Johnson, developed the proposal and received the Dean’s approval and support for its implementation. As a result, free menstrual products will be provided for all menstruators in the gender-neutral bathrooms and women’s bathrooms in the law school building.
Access the proposal to help create change and provide universal access to menstrual products in your school here.
Three of our Bronfein Family Law Clinic student attorneys, Yao Yang, Shannon Hayden, and Eaujee Francisco, and Professor Margaret E. Johnson went to Annapolis on Jan. 30, 2020. They submitted written testimony and Yao provided oral testimony in support of House Bill 208. The bill would require county boards of education to install dispensers and provide free menstrual products in Maryland's public schools.
The Bronfein Family Law Clinic (FLC) partnered with Menstrual Equity Alliance for Maryland Students (MEAMS) in providing testimony in support of the bill. The FLC testimony made four arguments. First, providing free menstrual products improves students' school attendance. A recent national study showed that 13% of students missed school, 15% of students were late to school, and 24% of students left school early because they needed access to menstrual products to manage their menstruation. Second, providing menstrual products could reduce student harassment and stigma caused when students bleed through their clothes for lack of products. A recent United Kingdom study found that one in five girls and young women in the UK are teased or bullied about their periods, with many suffering in silence. Third, providing free menstrual products in schools comports with the goal of Title IX of the Educational Amendments of 1972, which prohibits sex discrimination in public schools. The statute's ultimate goal is to ensure "equal access to education," which means to "ensure that no educational opportunity is denied to women on the basis of sex and that women are granted "equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities." Without menstrual products, girls’ school absences are increased thereby denying them equal access to education. Fourth, the cost of free menstrual products in public schools is worth the expenditure to provide equal opportunity to education. Citing the fact that the University of Baltimore School of Law now provides free products, FLC was able to identify the minimal costs of dispensers and products and that the free products were not being misused.Panel on Menstrual Equity and Justice
On March 2, 2019, Professor Margaret E. Johnson, Co-Director, Center on Applied Feminism, spoke on a panel of leading scholars, lawyers, and activists regarding menstrual justice. The panel, entitled “Menstrual Equity Activism: The Ground upon Which We All Stand,” was held at the 21st Annual Women’s History Conference at Sarah Lawrence College.
Professor Johnson presented her forthcoming article, Menstrual Justice, addressing the ways in which menstruators, those who menstruate, are subjected to menstrual injustice through discrimination, harassment, constitutional violations, insults, indignities, economic disadvantages, health disadvantages, and exclusion and essentialization. Johnson argued that given its pervasiveness, menstrual injustice is not merely the operation of patriarchy, the systematic oppression of women, but rather structural intersectionality, the systematic overlapping of various forms of domination, such as patriarchy, white supremacy, transphobia, and classism.
Professor Bridget Crawford, Elisabeth Haub School of Law, Pace University, convened the panel and addressed her two articles regarding the “tampon tax,” which results from states failing to exclude menstrual products from sales tax. In interesting, novel, and important analyses, Prof. Crawford argues that the tampon tax is both a violation of human rights as well as unconstitutional. Bridget J. Crawford & Carla Spivack, Tampon Taxes, Discrimination, and Human Rights, 2017 WIS. L. REV. 491 (2017); Bridget Crawford & Emily Gold Waldman, The Unconstitutional Tampon Tax, 53 U. RICH. L. REV. 439 (2019).
Professor Marcy Karin, University of the District of Columbia David A. Clarke School of Law, discussed her and her clinic students work on legislative reform in Washington, D.C. to eliminate the tampon tax among other issues. Professor Karin also discussed her article arguing for labor law reform, such as paid break leave, so menstruating employees can address their menstrual needs without any adverse action in the workplace.
Professor Emily Gold Waldman, Elisabeth Haub School of Law, Pace University, discussed her law review article, with Prof. Crawford, and their argument that the tampon tax is unconstitutional as sex-based discrimination and should be struck down under intermediate level review. Their arguments also address that the tampon tax could also be struck down under rational basis review. As discussed by Professor Waldman, these arguments are novel and important and may even be helpful in future litigation regarding the constitutionality of pregnancy discrimination.
Laura Strausfeld, Esq., Co-Founder, Period Equity, presented the work she has done over the past thirty years to achieve period equity. https://www.periodequity.org/. She and co-founder Jennifer Weiss Wolf focus on three areas, eradicating the tampon tax, access to safe and affordable menstrual products, and disclosure of contents of menstrual products. Ms. Strausfeld discussed the need to eradicate the tampon tax and to make sure menstrual products are safe by being free of toxins that can cause cancer, reproductive system harm, and anti-immunity harm.
Professor Crawford has organized the panelists to write an essay on the panel. See Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld, and Emily Gold Waldman, The Ground on Which We All Stand: A Conversation About Menstrual Equity Law and Activism, __ MICH. J. GENDER & L. __ (2019) (forthcoming).
Progress on Providing Dignity to Menstruating Residents of Correctional Facilities
Prof. Margaret Johnson brings us this piece written with her clinic students from University of Baltimore Law School who worked on the disturbing problem of women prisoners being denied basic menstruation provisions. The students conducted thorough research. If any reader would like a copy of the post with footnotes, please contact Margaret Drew, contact information below. Guest authors are Katherine Haladay, J.D. ‘19, Alexis Holiday, J.D. ‘19, Alexis Sisolak, J.D. ‘19, and Makeda Curbeam, J.D. ’19, student attorneys, and Margaret E. Johnson, Professor of Law and Director, Bronfein Family Law Clinic, University of Baltimore School of Law” See full blogpost here: https://lawprofessors.typepad.com/human_rights/2018/12/progress-on-providing-dignity-to-menstruating-inmates.html
Md. Code Ann., Corr. Servs. §§ 9-616, 4-214 (West 2019) (new law providing free access to menstrual products in correctional facilities).