Brooke E. López
Acquisitions Director & Staff Reporter (2020 – 2021)
Bleeding isn’t easy. More than 86% of young menstruators start their period unexpectedly in public without the products they need.1 This unexpected obstacle draws attention to educational menstrual equity, the movement to provide menstrual hygiene products like tampons and pads for free in educational environments. Student menstruators caught empty-handed face an uphill battle.2 When lacking the necessary menstrual hygiene products, students are forced to leave the classroom in search of a solution, thus losing valuable instruction time. Put simply, menstruating students are being denied educational opportunities on the basis of sex. This is a violation of Title IX protections guaranteed to students of all ages in federally-funded institutions. The Department of Education needs to address this inequity.
Menstruators face distinct disadvantages in the classroom.
There are limited solutions when facing an unexpected period. Students can (1) hope that the school maintains properly-stocked product dispensers in the restrooms; (2) scramble to the nurse’s office in pursuit of products; (3) wait in the restroom until someone brings a spare product; (4) use a spare piece of clothing, like a sock, or a wad of toilet paper to “MacGyver” a homemade product; or (5) leave campus.3 All of these options take time away from the classroom. Under Title IX policy, these distinct disadvantages could constitute gender-based discrimination.
What is Title IX and who does it protect?
Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”4 The purpose of Title IX is to protect students from gender-based discrimination.5 Any conduct considered to be discrimination “on the basis of sex” falls within the purview of Title IX.6
Title IX has been interpreted to guarantee equal opportunity for members of both sexes.7 The Supreme Court has held that forcing students out of the classroom on the basis of sex diminishes equal educational access guaranteed by Title IX.8 A menstruator’s absence from school is notably attributed to the lack of menstrual hygiene products. Studies show more than 50% of menstruators lacked appropriate products which caused them to be late to school, leave school early, or miss school altogether.9 Students who lack the equal opportunity to be present in the classroom, measured via school absences, tend to suffer significant performance gaps.10 Students who miss time in the classroom have lower testing performance, larger probability of dropping out, and an increased chance of future unemployment.11
How do we cure Title IX deficits for menstruators?
State legislatures and school districts have tried taking measures to ensure menstrual equity in education.
- New York City passed legislation mandating that menstrual hygiene products be provided in all public school systems so students can “concentrate on their studies.”12
- Multiple colleges in the University of Texas System started providing free menstrual hygiene products in single-stall and women’s restrooms, because a lack of access to these resources is a “public health concern.”13
- A group of high school students in Dallas Independent School District successfully advocated for free menstrual products to be dispensed in all high schools and middle schools, prioritizing low-income students who cannot afford products.14
- School districts in Dublin City, Ohio, provided free tampons and pads in elementary and middle schools, citing lack of time between classes for students to approach the nurse’s office.15
- Brown University started providing free pads and tampons in all restrooms, claiming that menstrual hygiene products are as much of a necessity as toilet paper.16
Unfortunately, these small-scale projects took years to develop and implement. Even worse, some school districts have completely refused to provide products at all.17 Some districts claim that product dispensers will be destroyed, are too expensive, and—the most interesting excuse yet—can be used to transport illicit drugs into schools.18 Without intervention from the Department of Education, students may be left to rely on the ill-contrived decisions of others and a patchwork of local and state policies. The only true solution to cure Title IX violations on the basis of menstruation requires the Department of Education to take action.
The Department of Education holds the authoritative power to issue Title IX regulations that interpret what constitutes gender-based discrimination. Congress affirmatively granted deference to the Department of Education’s interpretation of what constitutes discrimination “on the basis of sex,” including equal opportunity to education.19 If the Department were to formally interpret a lack of menstrual hygiene products to violate Title IX compliance, a sweeping new standard could be enforced on campuses nationwide. Such an interpretation would eliminate the pain-staking process of implementing individual menstrual equity policies. It would also remove authority from campuses to deny these rights to menstruating students, thus requiring them to provide menstrual hygiene products. As it stands, the Department of Education is failing student menstruators.
1 Hospeco, The Murphy’s Law of Menstruation, https://www.hospeco.com/assets/user/documents/L-OL-H115-S_Murphy's%20Law%20of%20Menstruation.pdf.
2 Menstruators, or individuals who identify as regularly having a menstrual cycle, inherently tend to be women. However, since some menstruators are transgender males, I will use the term “menstruators” rather than women throughout this article.
3 Hospeco, The Murphy’s Law of Menstruation, supra note 1.
4 20. U.S.C.A. § 1681 (West).
5 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998).
6 20. U.S.C.A. § 1681 (West).
7 Kelley v. Bd. of Trs., 832 F.Supp. 237, 241 (C.D. Ill. 1993).
8 Davis Next Friend LaShonda D. v. Monroe Cty. Bd. Of Educ., 526 U.S. 629, 631 (1999) (a student was sexually harassed by another student which prevented that student from having equal access to the classroom).
10 Gottfried, Michael A. “The Detrimental Effects of Missing School: Evidence from Urban Siblings.” American Journal of Education, vol. 117, no. 2, 2011, pp. 147–182. JSTOR, www.jstor.org/stable/10.1086/657886. Accessed 3 Apr. 2020.
12 N.Y.C., N.Y., N.Y.C. Admin. Code, title 21-A, ch.8, § 21-968 (2016); Press Releases, City of New York, Mayor de Blasio Signs Legislation Increasing Access to Feminine Hygiene Products for Students, Shelter Residents and Inmates, City of New York (Jul. 13, 2016), https://www1.nyc.gov/office-of-the-mayor/news/611-16/mayor-de-blasio-signs-legislation-increasing-access-feminine-hygiene-products-students-.
13 UT Dallas Student Government, Facebook (Mar. 18, 2018), https://www.facebook.com/utdsg/posts/10156107607844547; Nadia Hamdan, UT Austin Pilot Program Offers Free Period Products in Women’s Restrooms, KUT 90.5 (Nov. 26, 2018), https://www.kut.org/post/ut-austin-pilot-program-offers-free-period-products-womens-restrooms.
14 Ignite National, Facebook (Nov. 19, 2019), https://www.facebook.com/IGNITEnational/posts/2633701160043730.
15 Abigail Jones, Free Tampons and Pads are Making Their Way to U.S. Colleges, High Schools and Middle Schools, Newsweek (Sep. 6, 2016), https://www.newsweek.com/free-tampons-pads-us-schools-496083.
16 Ryan Lasker, At Brown University, it’s free tampons and pads for all, USA Today (Sep. 10, 2016), https://www.usatoday.com/story/news/college/2016/09/10/brown-university-free-tampons/90128406/.
17 Madeleine Schmidt, Free Tampons ‘Too Extreme’: Republicans Blast Bill to Put Menstrual Hygiene Products in Schools, Colorado Times Recorder (Nov. 25, 2019), https://coloradotimesrecorder.com/2019/11/free-tampons-too-extreme-republicans-blast-bill-to-put-menstrual-hygiene-products-in-schools/19708/; Email from Barry Lanford, Exec. Dir. of Facility Maint. and Operations, North East ISD, to Brooke López (May 23, 2018, 07:36 CST) (a North East ISD district representative—located in San Antonio, Texas—stated “our departments have neither the funds nor personnel to implement the program…”).
18 Email from Amy Hillin, Coordinator of Health Servs., Wylie ISD, to Brooke López (Sept. 11, 2017, 11:40 CST) (on file with author) (a Wylie ISD district representative—located in North Texas—stated “[i]n addition, our administrators have felt that not having dispensers [is] in the best interest of student safety (they are a target for hiding illicit substances),” yet failed to cite to any supporting research or qualification for this statement)
19 Conley v. Nw. Fla. State Coll., 145 F.Supp.3d 1073, 1081-1082 (N.D. Fla. 2015).