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.
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?...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.
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.