Today’s signing by Michigan Gov. Gretchen Whitmer of bipartisan legislation ending the taxation of essential menstrual products was the culmination of a successful legal effort that included a WilmerHale team that welcomed the state’s new law while acknowledging similar challenges ahead in other states.
The bill signing represented a victory for women in the state who previously were required to pay sales or use tax on menstrual products—frequently called the “tampon tax.” Critics of the tampon tax argued that such products should be exempt because the tampon tax penalized women for the purchase of medically necessary items.
It also was also a victory for WilmerHale client Period Equity, which has campaigned since 2016 to put an end to the tampon tax as a matter of fundamental fairness. While 14 states have eliminated the tax since Period Equity began its advocacy, 27 states still levy sales tax, use tax, or both on menstrual products. WilmerHale has provided Period Equity with national strategic advice and litigation counsel since 2019.
“This is an important moment for gender equity,” said Brian Mahanna, a WilmerHale partner who spoke for the team. “WilmerHale is proud to have played a role in ending this inequity against women that has gone on for far too long. But our work is far from done since more than half of the states still impose these unconstitutional taxes."
WilmerHale, jointly with Schiff Hardin LLP, represented Period Equity and three named plaintiffs in a class action filed on August 11, 2020. The complaint was filed in the Michigan Court of Claims against the state and the Michigan Department of Treasury and challenged the taxes on equal protection grounds.
The lawsuit sought a declaration that defendants’ actions in administering and enforcing sales and use tax on menstrual products was unconstitutional because it discriminated against women, as well as a refund of sales and use taxes on menstrual products. On June 9, 2021, the court granted defendants’ motion for summary disposition. On September 21, 2021, the plaintiffs filed an appeal in the Michigan Court of Appeals, which is pending.