Michigan women sue state to end tampon taxes, get cash refund

Beth LeBlanc
The Detroit News

Three Michigan women are suing the state Treasury Department to end sales and use taxes paid on feminine hygiene products, alleging the taxes violate equal protection clauses of the state and U.S. constitutions because they discriminate based on sex. 

Emily Beggs, Clare Pfeiffer and Wei Ho are seeking class action status on behalf of all Michigan women paying the "tampon tax" and demanding a refund with interest of the sales and use taxes paid by women for menstrual products over the last four years. They estimate the class of women paying the tax has about 2.4 million people.

"The Constitution is clear: It’s a discriminatory tax," said Joanne Faycurry, a lawyer representing the women for free in the suit. 

"For the government to impose a burden on a product that women must use, it’s a tax on women for being women," she said. 

The lawsuit was assigned to Court of Claims Judge Colleen O'Brien, a 2015 appointee of Republican former Gov. Rick Snyder. 

The lawsuit promises to be a challenge for Gov. Gretchen Whitmer and Attorney General Dana Nessel, who have both indicated that menstrual products should be considered "essential." The state is in the midst of a $3 billion shortfall caused by the coronavirus pandemic.

Michigan collects about $6.9 million annually in taxes on period supplies, or about $27.6 million over the past four years, which is the statute of limitations for tax refunds,  according to the lawsuit. 

Whitmer would support the elimination of the tax if it were sent to her by the Legislature, her spokeswoman Tiffany Brown said Wednesday.

The Department of Treasury declined comment because of the pending lawsuit.

Nessel, whose office would defend the state, joked in a tweet from her personal account Wednesday that she was "glad this came now, and not when I was on my beach vacation.

"Since there are already bills that address this pending in the Legislature, I hope someone can pull some strings," Nessel wrote. She later added that the lawsuit was "no laughing matter."

Women across the country have been assessed billions of dollars in an unconstitutionally levied tax over the years, said Laura Strausfeld, co-founder of nonprofit Period Equity, co-counsel in the case. 

In the past four years, the number of states still taxing products such as pads and tampons has been whittled down from 40 to 30, Strausfeld said. The issue takes on particular significance during the pandemic when women accounted for 55% of job losses through April 2020, but made up 49% of the work force, she said.

"Every year there’s another reason why it can’t be taken care of," Strausfeld said. "And now in the first female recession of our lifetime — come on, take care of it.”

House Democrats last year introduced bills that would exempt feminine hygiene products from sales and use taxes after June 30, 2020. The bills, introduced by Reps. Brian Elder of Bay City and Tenisha Yancey of Grosse Pointe, received a committee hearing but never advanced to the House floor. 

At the time, the House Fiscal Agency estimated the legislation would cost the state roughly $6.5 million a year in tax revenue, pulling about $4.8 million from the school aid fund. Treasury was neutral on the bill.  

Democratic Sens. Winnie Brinks of Grand Rapids and Mallory McMorrow of Royal Oak also introduced similar legislation last year, but it has yet to receive a hearing. 

"The last thing the state needs is defending a lawsuit against this unconstitutional tax on feminine hygiene products — already struck down in many other states," McMorrow said on Twitter Wednesday. "And we don't have to. @WinnieBrinks and I have bills to make this right the right way."

Similar lawsuits were filed in Ohio, Florida and New York, prompting the legislatures in those states to pass laws that repealed the tax, Faycurry said. 

"Ohio’s governor and their Legislature are Republican-controlled," Faycurry said. "They were prompt and diligent in enacting legislation to exempt these products."

Beggs, Pfeiffer and Ho asked the state for tax refunds on their menstrual product purchases in February but were denied, according to the lawsuit. They held a meeting with the state Treasury Department in July but were warned beforehand there were no exemptions for menstrual products. 

The women filed suit Tuesday before the Treasury issued a written decision on their continued request. Beggs and Pfeiffer work in a group called "I support the girls," while Ho is a math professor at the University of Michigan, Faycurry said. 

In the Tuesday lawsuit, the women argued that food and food ingredients, durable medical equipment, prescription and over-the-counter drugs are not taxed, but menstrual products are despite being a medical necessity.

The Attorney General's office told the Lansing State Journal in May, while addressing price gouging allegations, that it considered menstrual products "essential," according to the suit. And Whitmer, while on the campaign trail, encouraged residents to call their lawmakers to ask for a repeal of the Tampon Tax and said in 2017 on Twitter that the state should "stop taxing women for being women."

"The essential nature of menstrual products has been highlighted during the current economic crisis, with the need for affordable products greater than ever," the lawsuit said.