Menstrual Product Deprivation in Prison: A Sex-Neutral Litigation Strategy
I. Introduction
TOPPrisons at both the state and federal levels routinely deny or severely restrict access to menstrual supplies for those who need them.1
See Am. Civ. Liberties Union, The Unequal Price of Periods: Menstrual Equity in the United States 3 (2019) [hereinafter The Unequal Price of Periods].
Id.
See The Facts on Tampons—and How to Use Them Safely, Food and Drug Admin. (Sept. 9, 2020), https://www.fda.gov/consumers/consumer-updates/facts-tampons-and-how-use-them-safely[https://perma.cc/6WRH-EW7L](noting that no tampon can safely be worn longer than eight hours); Preparing Your Child for Menstruation, Mayo Clinic (Aug. 11, 2020), https://www.mayoclinic.org/healthy-lifestyle/tween-and-teen-health/in-depth/menstruation/art-20046004[https://perma.cc/5SWC-KUXT](explaining the importance of changing menstrual pads every four to eight hours).
Mitchell O’Shea Carney, Note, Cycles of Punishment: The Constitutionality of Restricting Access to Menstrual Health Products, 61 B.C. L. Rev. 2541, 2548–49 (2020).
Id.
Although denial of period products to incarcerated people is widespread and systemic, there has been little litigation on the topic, and have been even fewer successful outcomes.6
See id. at 2549.
No. 1:14-cv-1245, 2015 WL 9906265 (W.D. Mich. Sept. 11, 2015).
Id. at *10.
Id. at *9–10.
See Turano v. Cnty. of Alameda, No. 17-cv-06953 (N.D. Cal. May 23, 2019) [hereinafter Turano III] (ordering the parties to file a dismissal due to the settlement); Flores v. City of New York, No. 19-CV-5763, 2021 WL 663977 (E.D.N.Y. Feb. 19, 2021).
Although menstrual product deprivation cases have seen varying levels of success, they all share one characteristic: period products are discussed as a uniquely female need.11
See Semelbauer, 2015 WL 9906265, at *8 (specifying female prisoners as the ones suffering the deprivation); Turano v. Cnty. of Alameda, No. 17-cv-06953, 2018 WL 5629341, at *5–6 (N.D. Cal. Oct. 30, 2018) [hereinafter Turano II] (bringing an Equal Protection claim based on sex discrimination); Flores, 2021 WL 663977, at *5 (also bringing a sex-based discrimination Equal Protection claim).
See Turano II, 2018 WL 5629341, at *5–6; Flores, 2021 WL 663977, at *5.
This Comment will critique sex as a description of the class facing discrimination in menstrual product deprivation cases and assess other forms of litigation that include every menstruating prisoner. It will first lay out how pervasive period product deprivation is in prisons and attendant harmful effects on prisoners, then detail the policy-based and legal attempts to solve the issue. Finally, this Comment will describe how suits under the Fourteenth Amendment may be brought successfully without implicating sex. Instead, menstruators will be established as the class, allowing suits to center around the locus of discrimination and include everybody who needs relief. It will also demonstrate that a sex-neutral Fourteenth Amendment suit is a necessary addition to cases bringing Eighth Amendment claims.
II. Extent and Consequences of Period Product Deprivation
TOPLack of access to period products causes physical and mental harm and fosters corrupt uses of power in prison. This Part will explore the extent of this lack of access and how these harms degrade prisoners’ health and personal dignity. It will also review the legal action prisoners have taken so far to gain better access to menstrual products and explore why this litigation has been largely unsuccessful. On the policy side, this Part will provide a summary of the efforts by the federal and state government to provide adequate menstrual products, along with the shortcomings of those efforts. Finally, there will be a brief overview of housing policies for transgender prisoners to determine the likelihood of a menstruating person being placed in a male housing facility and, therefore, the likelihood of excluding some prisoners with sex-based litigation strategies.
Barriers to access to menstrual hygiene in prison take several forms, but all result in many prisoners going through their periods without the ability to manage them hygienically. These barriers generally consist of inadequate supply by the prison, combined with high commissary prices for pads and tampons that most prisoners cannot afford. The barriers do not just mean prisoners are unable to manage their periods—it also creates an opportunity for abusive relationships with guards, who use their control over menstrual product supply to coerce prisoners.
Period products supplied by the prisons suffer from deficiencies in quantity and quality. In some cases, large groups of incarcerated individuals are expected to compete for a small number of pads, while other prisoners are given just a few pads or tampons for the duration of their periods.13
The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 3.
See Jerilynn Prior, Very Heavy Menstrual Flow, Ctr. for Menstrual Cycle and Ovulation Rsch. (Oct. 4, 2017), https://www.cemcor.ubc.ca/resources/very-heavy-menstrual-flow[https://perma.cc/QM64-Q8Q8];The Ultimate Guide to Feminine Hygiene, Duquesne Univ. Sch. of Nursing, https://onlinenursing.duq.edu/master-science-nursing/the-ultimate-guide-to-feminine-hygiene/[https://perma.cc/L5LT-WT8L];Heavy Periods: Overview, Inst. for Quality & Efficiency in Health Care (May 4, 2017), https://www.ncbi.nlm.nih.gov/books/NBK279294/[https://perma.cc/3E5G-GNYM].Typically, people bleed enough to completely soak one to seven period products during a cycle. However, since a cycle generally lasts three to five days and disposable period products must be changed out every four to eight hours, people often switch their pad or tampon before it is fully saturated. For example, one report found that seventy percent of menstruators use about twenty tampons per cycle. Additionally, nine to fourteen percent of menstruators have heavy periods, meaning they will bleed enough to completely soak sixteen disposable menstrual products.
See Carney, supra note NOTEREF _Ref85886875 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003800370035000000 , at 2547.
Period products are offered at prison stores called commissaries, but the prices are out of reach for many prisoners. In Florida, an incarcerated person who needed to buy tampons would have to pay more than four dollars for just four tampons yet earns less than fifty cents per hour on average.16
The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 4.
Id.
Multipack Perfection Silk Unscented Tampons, Walgreens (Oct. 17, 2022), https://www.walgreens.com/store/c/walgreens-multipack-perfection-silk-unscented-tampons/ID=300424512-product.
Resources from non-incarcerated family members are also scarce for many prisoners. A recent study indicates that 65 percent of families are unable to meet basic needs like food and housing while their family member is incarcerated, meaning they are very likely incapable of putting any funds into their imprisoned relative’s commissary account.19
See Half of Americans Have Family Members Who Have Been Incarcerated, Equal Just. Initiative (Dec. 11, 2018), https://eji.org/news/half-of-americans-have-family-members-who-have-been-incarcerated/[https://perma.cc/4L4E-5A7J].
Exacerbating the quality and access issues is the discretion that prison officers exercise over distributing menstrual health products.20
Id. at 2546–47.
Id.
It should be noted that sexual misconduct by guards is rarely disciplined. A 2016–2018 Bureau of Prisons report found that while 45,581 staff-on-inmate sexual assaults were reported in all federal, state, and local prisons, only 2,816 were “substantiated,” meaning there was enough evidence to prove it had occurred. As such, simply reporting the offending official is not an adequate remedy to protect prisoners from this form of coercion. Emily D. Buehler, U.S. Dep’t of Just., Special Report: Sexual Victimization Reported by Adult Correctional Authorities, 2016–2018 6 (2021).
Carney, supra note NOTEREF _Ref85886875 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003800370035000000 , at 2546–47; The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h \* MERGEFORMAT 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 3–4.
There are myriad negative effects of denying prisoners the means to hygienically manage menstruation.24
See The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 3–4.
Carney, supra note NOTEREF _Ref85886875 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003800370035000000 , at 2548.
See Toxic Shock Syndrome, Mayo Clinic (Mar. 18, 2020), https://www.mayoclinic.org/diseases-conditions/toxic-shock-syndrome/symptoms-causes/syc-20355384[https://perma.cc/8WTX-CRN9].
Carney, supra note NOTEREF _Ref85886875 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003800370035000000 , at 2548–49.
See Carney, supra note NOTEREF _Ref85886875 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003800370035000000 , at 2549.
Since prisons also regulate when prisoners can wash themselves and their clothing, the lack of products creates other hygiene issues. In federal prisons, showers are not open at night.29
Fed. Bureau of Prisons, Inmate Information Handbook 10 (2012).
Id. at 7.
You’ve Been Sitting in Wet Clothes¾Now That Troubling Itch May Mean a Yeast Infection, Norton Healthcare (Sept. 12, 2018), https://nortonhealthcare.com/news/that-troubling-itch-may-mean-a-yeast-infection/[https://perma.cc/YYH9-JY9H].
See Nat’l Inst. for Occupational Safety and Health, Correctional Health Care Workers: Cross-Contamination, Ctrs. for Disease Control (Aug. 18, 2010), https://www.cdc.gov/niosh/topics/correctionalhcw/cross.html[https://perma.cc/5HCF-X62Q].
The effects are not solely physical. Because prison officials have broad discretion over how they distribute menstrual products,33
Carney, supra note NOTEREF _Ref85886875 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003800370035000000 , at 2546–47.
See The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 4.
See id.; Margaret Johnson, Menstrual Justice, 53 U.C. Davis L. Rev. 1, 47 (2019).
Staff Gender, Fed. Bureau of Prisons (Feb. 5, 2022), https://www.bop.gov/about/statistics/statistics_staff_gender.jsp[https://perma.cc/P6W9-HURB](the BOP does not provide a breakdown of how many guards are cisgender, but since the majority of the population is cisgender, it stands to reason that most guards are as well).
Linda L. Zupan, Men Guarding Women: An Analysis of the Employment of Male Correction Officers in Prisons for Women, 20 J. Crim. Just. 300 (1992).
Aside from the psychological toll this takes, such humiliation has detrimental effects on access to outside resources. Many incarcerated people say they decline visits from family or counsel while on their periods due to shame because they are covered in blood.38
The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 4.
C. Legal Action
TOPDue to legal and economic barriers to courts that the incarcerated population faces, there have only been a few cases brought by prisoners that allege inadequate access to menstrual products—despite the severity of this issue.39
See Andrea Fenster & Margo Schlanger, Slamming the Courthouse Door: 25 Years of Evidence for Repealing the Prison Litigation Reform Act, Prison Pol’y Initiative (Apr. 26, 2021), https://www.prisonpolicy.org/reports/PLRA_25.html[https://perma.cc/ZJ69-9PHN](detailing how the Prison Litigation Reform Act requires plaintiffs to exhaust all internal administrative remedies, makes incarcerated people ineligible for filing fee waivers, restricts available remedies, and caps attorney’s fees at below market rates).
See generally Turano v. Cnty. of Alameda, No. 17-cv-06953, 2018 WL 3054853 (N.D. Cal. June 20, 2018) [hereinafter Turano I]; Flores, 2021 WL 663977.
No. 17-cv-06953, 2018 WL 3054853 (N.D. Cal. June 20, 2018).
Id. at *2.
Id.
Id. at *8.
In the opinion handed down on Ms. Turano’s amended complaint, the court once again explicitly gendered the deprivation of period products.45
See Turano II, 2018 WL 5629341, at *6.
Id. (emphasis in original).
Compare Turano II, 2018 WL 5629341, at *5–6, with Turano I, 2018 WL 3054853, at *7–8.
See Turano III.
In Flores v. City of New York,49
19-CV-5763, 2021 WL 663977 (E.D.N.Y. Feb. 19, 2021).
Id. at *1.
Id.
Id. at *6.
Id. (citing Turano I, at *8).
See id.
The Turano and Flores cases were preceded by Semelbauer, which differed in that it framed the deprivation of period products as an Eighth Amendment rather than a Fourteenth Amendment violation.55
Semelbauer v. Muskegon Cnty., No. 1:14-cv-1245, 2015 WL 9906265, at *8 (W.D. Mich. Sept. 11, 2015).
Id. at *8–10.
Id.
Id. at *9–10.
D. Policy Efforts
TOPThe issue of access to menstrual products has gained more legislative attention in recent years.59
See Jennifer Weiss-Wolf, U.S. Policymaking to Address Menstruation: Advancing an Equity Agenda, 25 Wm & Mary J. Race, Gender & Soc. Just. 493, 511–12 (2019).
MOST Pol’y Initiative, Feminine Hygiene Products and Prisons 2 (2021).
Weiss-Wolf, supra note NOTEREF _Ref85889830 \h 59 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380039003800330030000000 , at 511–12.
State Laws Around Menstrual Products in Prison, The Prison Flow Project (Nov. 11, 2021), https://theprisonflowproject.com/state-laws-around-access/[https://perma.cc/9T33-Y2EE].
See Food & Drug Admin., Menstrual Tampons and Pads: Information for Premarket Notification Submissions (501(k)s) 7 (July 2005); 21 C.F.R. § 884.5425 (1980). The FDA regulations assume that pads have a “core,” which is the absorbent portion. The regulatory definition also describes their purpose as “absorb[ing] menstrual or other vaginal discharge.” However, many products that prison officials give for free are described as entirely nonabsorbent, indicating that they do not satisfy the FDA definition of a pad.
See Feminine Hygiene Products and Prisons, supra note NOTEREF _Ref85889867 \h 60 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380039003800360037000000 .
On the federal level, Congress passed the First Step Act in 2018.65
First Step Act, Pub. L. No. 115–391, 132 Stat. 5194 (2018).
Id. § 611 (“The Director of the Bureau of Prisons shall make [tampons and sanitary napkins] available to prisoners for free, in a quantity that is appropriate to the healthcare needs of each prisoner.”).
See Derek Gilna, New Policies for Federal and State Prisoners Guarantee Feminine Hygiene Products, Prison Legal News (Apr. 2, 2018), https://www.prisonlegalnews.org/news/2018/apr/2/new-policies-federal-and-state-prisoners-guarantee-feminine-hygiene-products/[https://perma.cc/R9EQ-PTTR].
Jean Lee, 5 Pads for 2 Cellmates: Period Inequity Remains a Problem in Prisons, The 19th (June 29, 2021), https://19thnews.org/2021/06/5-pads-for-2-cellmates-period-inequity-remains-a-problem-in-prisons/[https://perma.cc/DR6K-FL6D].
Moreover, there is evidence at the state and federal levels that prison administrations have ignored or delayed adopting the new policies.69
See Gilna, supra note NOTEREF _Ref85890195 \h 67 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390030003100390035000000 ; Lee, supra note NOTEREF _Ref85891659 \h 68 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390031003600350039000000 .
Lee, supra note NOTEREF _Ref85891659 \h 68 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390031003600350039000000 .
Alexa Doiron, Despite 2019 Law, Some Jails Still Don’t Provide Free Menstrual Products to Female Inmates, WY Daily (Mar. 9, 2020), https://wydaily.com/local-news/2020/03/09/despite-2019-law-some-jails-still-dont-provide-free-menstrual-products-to-female-inmates/[https://perma.cc/PR62-8TUX].
Id.
See Amy Ralston Povah, BOP Report Card – Feminine Hygiene, CAN-DO Just. Through Clemency (Oct. 9, 2017), http://www.candoclemency.com/bop-report-card-feminine-hygiene/[https://perma.cc/TU4M-MYVA].
E. Housing Transgender Prison Populations
TOPLitigation around period products in prison based on sex discrimination necessarily only includes female plaintiffs. When solely female prisoners are involved in a suit, there is no rationale for asking that the proposed relief be applied to male and female facilities. As a result, the scarcity of period products would continue for prisoners who menstruate but are not housed in a women’s facility. To determine the scope of this concern, we must determine the extent to which menstruating prisoners who are not women are housed in male facilities. As such, a review of federal and state housing policies for transgender prisoners is in order.
The federal policy on transgender prisoners has been in flux with the change of presidential administrations. Under President Obama, the Transgender Offender Manual required housing by gender identity “as appropriate.”74
See Bureau of Prisons, Transgender Offender Manual Change Notice (Jan. 18, 2017) (The cited document is the Trump-era regulations, with the prior regulations included but struck out).
Id.
See Bureau of Prisons, Transgender Offender Manual 6 (Jan. 13, 2022).
State policies vary widely, from basing the determination of housing solely on genitalia to basing it solely on gender identification.77
See Project on Addressing Prison Rape, Wash. Coll. of L., https://www.wcl.american.edu/impact/initiatives-programs/endsilence/state-by-state-transgender-housing-policies/[https://perma.cc/DV57-XVQT];Adam Beam, California Will House Transgender Inmates By Gender Identity, ABC News (Sept. 26, 2020), https://abcnews.go.com/US/wireStory/california-house-transgender-inmates-gender-identity-73268318[https://perma.cc/E4DL-QPWB].
See Project on Addressing Prison Rape, supra note NOTEREF _Ref85890499 \h 77 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390030003400390039000000 .
See id.
See id.
Identity Document Laws and Policies, Movement Advancement Project (Aug. 3, 2021), https://www.lgbtmap.org/equality-maps/identity_document_laws/birth_certificate[https://perma.cc/RNQ9-FXXA].
The scarcity of states that house based solely on genital status indicates that not all menstruating prisoners are housed in women’s facilities. As a result, verdicts requiring adequate supplies in a women’s facility would not benefit all prisoners in need. Concern about leaving out transgender prisoners with litigation strategies based on sex discrimination is therefore warranted.
III. Developing a Sex-Neutral Litigation Strategy
TOPThis Part will advance two main arguments. The first is that a more inclusive and effective means of bringing litigation for access to menstrual products in prison is a Fourteenth Amendment claim on the basis of discrimination against menstruators. Such a strategy would include everybody in the affected group while still emphasizing that these prisoners are the subject of unjust discrimination. I will begin by walking through the process to establish a Fourteenth Amendment claim based on discrimination against menstruators and the application of the Turner test to such a claim.
The second argument is that a potential claim for plaintiffs under the Eighth Amendment is not a substitute for a sex-neutral Fourteenth Amendment case, given the heightened standard to which Eighth Amendment violations must rise. This Part will explain that it is extremely difficult to prove an Eighth Amendment violation in the current analytical context, meaning such claims should be bolstered with a Fourteenth Amendment claim.
A. Non-Suspect Classes
TOPMenstruation is not one of the protected classes defined under federal or state law. As such, any suit alleging discrimination on the basis of menstruation would receive rational basis review, which sustains the official action if it is rationally related to a legitimate state interest.82
See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439–40 (1985).
Although rational basis review is the most difficult standard under which to invalidate a government policy, there has been success for incarcerated plaintiffs who have brought complaints as a non-suspect class.83
See Turner v. Safley, 482 U.S. 78, 95–96 (1987); Campbell v. Quiros, No. 3:17-cv-946, 2018 WL 888723, at *5 (D. Con. Feb. 13, 2018) (acknowledging that plaintiff pled sufficient facts to state a claim); Green v. Santiago, No. 3:16-cv-1724, 2017 WL 2312355, at *9 (D. Conn. May 26, 2017) (also allowing for equal protection claims to proceed based on the alleged facts).
482 U.S. 78, 95–96 (1987).
Id. at 81–82.
Id. at 89.
The Court further identified four factors that went into determining the reasonableness of a prison practice.87
Id.
Id. at 89–90.
Id. at 90.
Id.
Id.
B. Prerequisites to the Turner Test
TOPTo apply the Turner test, a court must first establish that the prison has impinged on a prisoner’s constitutional rights. If it has, Turner will be applied to determine if the infringement is justifiable in the prison context. The right in question here is, of course, the right to equal protection under the Fourteenth Amendment. Under the color of state power, prisoners who menstruate are denied the same ability to maintain personal hygiene and health as prisoners who do not menstruate. As in any equal protection claim, the plaintiff would need to demonstrate both disparate impact and discriminatory intent.92
See Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979).
See infra Part III.
Intent, as usual, is the more difficult standard to meet. As seen previously in the Turano Cases, judges have rejected the idea that deprivation of menstrual products shows an intent to discriminate on the basis of sex.94
Turano, 2018 WL 3054853, at *8.
Infra Part REF _Ref85891521 \w \h 0 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390031003500320031000000 .
Infra Part REF _Ref85891521 \w \h 0 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390031003500320031000000 .
If there are no derogatory remarks or coercive actions, intent becomes more difficult to prove. However, a comparison of the methods used to supply general use hygiene products and menstrual hygiene products can provide evidence that prison staff withhold menstrual products in particular. Cases of deprivation of menstrual hygiene items necessarily involve a request for products and a subsequent denial of that request, whether explicit or implicit. As a result, deprivations of menstrual products usually occur after prison officials are aware of the need, sometimes because they can clearly see that a prisoner is bleeding on themselves. Those officers choose to continue withholding the necessary supplies in the face of obvious need.
The policy component that allows for this highly discretionary behavior bolsters the argument for intent. The rules dictating distribution of period products is often at odds with how other products are supplied. For example, Hawaii prisons provide “basic hygiene supplies” (including items like razors for short periods of time) and will replenish these items upon request three times a week.97
Pub. Safety Dep’t., Haw. Cmty. Corr. Ctr., Inmate Guidelines 15 (2014).
Id.
Mass. Dep’t of Corr., 103 DOC 750, Hygiene Standards 7 (2022).
S. N.M. Corr. Facility, Inmate Handbook 8 (2014).
These guidelines, present in states across the country, suggest that most sanitary items are dispensed as needed. This is even true of items that not every prisoner uses, like razors. Yet menstrual products, which are also not needed by the entire population but are more necessary for hygiene maintenance than a cosmetic item like a razor, are never mentioned in the policy. Ignoring the need for menstrual products while comprehensively providing any other sanitary item a prisoner might need as a matter of policy indicates intent to discriminate against those who do menstruate.
States that either have no policies regarding hygienic items or that do mandate providing menstrual products as needed pose the greatest hurdle to proving intent. Plaintiffs may need to make more specific arguments by collecting testimony that other hygienic items were readily supplied according to need while menstrual products were withheld. If the court allowed access to a prison’s expenses in discovery, plaintiffs might also be able to see whether the defendant prison buys adequate toiletries for the population but neglects to purchase any or enough menstrual hygiene items. This type of evidence would help support the contention that despite the lack of explicit discriminatory policies, there is a widespread systemic practice with the force of policy that does discriminate against menstruators.
There have been successful Fourteenth Amendment prison cases that do not rely on alleging discrimination against a protected class. James v. Wallace,101
382 F. Supp. 1177 (M.D. Al., 1974).
406 F. Supp. 318 (M.D. Al. 1976).
Wallace, 382 F. Supp. at 1181–82.
Id. at 1182.
See generally Pugh, 406 F. Supp. 318.
Proving a Fourteenth Amendment violation on the basis of discrimination against menstruators is therefore possible and, in some ways, easier than proving sex discrimination because the nature of the discrimination is linked to the fact that these individuals menstruate. Once plaintiffs demonstrate the Fourteenth Amendment violation, the court will inspect it under the Turner test to determine if it is an acceptable restriction of constitutional rights in prison.
C. Application of the Turner Test
TOPApplying the Turner test to a potential Fourteenth Amendment suit brought on a theory of discrimination against menstruators demonstrates that such a case could very well succeed.106
It should be noted here that another potential hurdle in litigation of this kind is qualified immunity, which could apply if plaintiffs were suing a prison official as an individual. Since deprivation of period products is more a product of systemic failure than individual misbehavior, we will assume for purposes of this Comment that plaintiffs are suing the government entity responsible, which would make qualified immunity inapplicable.
1. Factor one: relation to penological goals
Assuming the court identified a Fourteenth Amendment violation, it would then first consider the penological goal a prison administration might have in allowing a certain practice. Here, it is difficult to see what penological interest might be advanced by denying prisoners pads and tampons besides the goal of saving money.
Although courts generally accept cost management as a valid penological interest, this does not mean that courts do not question whether a certain practice is truly related to the stated interest. For example, the court in Roe v. Crawford107
514 F.3d 789 (8th Cir. 2008).
Id. at 795.
See id.
An analogous situation is at play when considering how menstrual products affect prison budgets. While data on how much prisons spend on menstrual products is scarce, some examples indicate prisons could save money by improving their menstrual hygiene policies. In a 2019 interview, a spokesperson for Missouri lawmakers estimated that the cost of providing unlimited free tampons in prisons would be about $171,000, which is 0.11 percent of Missouri’s total prison budget.110
See Samantha Michaels, Getting Your Period in Prison is Hell. These Numbers Prove It., Mother Jones, https://www.motherjones.com/crime-justice/2019/05/getting-your-period-in-prison-is-hell-these-numbers-prove-it/[https://perma.cc/P96Z-ZFD7].
State Prisons and the Delivery of Hospital Care, Pew Charitable Trs. (July 19, 2018), https://www.pewtrusts.org/en/research-and-analysis/reports/2018/07/19/state-prisons-and-the-delivery-of-hospital-care[https://perma.cc/7W7K-S8FR].
Kelly N. Wright et al., Costs and Outcomes of Abdominal, Vaginal, Laparoscopic, and Robotic Hysterectomies, 16(4) J. Soc’y Laparoscopic & Robotic Surgeons 519, 522 (2012).
Mark A. Strom et al., Prevalence, Comorbidities, and Mortality of Toxic Shock Syndrome in Children and Adults in the USA, 61(11) Microbiology & Immunology 463, 465 (2017).
See Emma Goldberg, Many Lack Access to Pads and Tampons. What Are Lawmakers Doing About It?, N.Y. Times (Jan. 13, 2021), https://www.nytimes.com/2021/01/13/us/tampons-pads-period.html[https://perma.cc/GUD9-YGPR].
See State Prisons and the Delivery of Hospital Care, supra note NOTEREF _Ref90993764 \h 111 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600390030003900390033003700360034000000 .
There is some concern that forcing prisons to pay for menstrual products would result in forced sterilization or other involuntary medical interventions (like certain types of birth control) that would prevent menstruation and thereby reduce costs. Such an outcome is clearly undesirable but thankfully is unlikely. As mentioned, a hysterectomy (which is a sterilization) is far more expensive than supplying menstrual products over an individual’s entire reproductive life, and hormonal birth control also requires regular supply (reupping birth control pill packs, for example), meaning the prison would still have monthly expenses for all menstruating prisoners.
The scarcity of data on this issue also cuts against defendants in cases governed by Turner. In another circuit court case, the court noted that while prison officials do receive deference, they “must present credible evidence” to support their claims that a particular penological interest is served by the policy in question. Specifically, prisons must present reliable evidence that cost impacts would be more than de minimis.117
Beerheide v. Suthers, 286 F.3d 1179, 1189–90 (10th Cir. 2002) (emphasis in original).
Finally, although cost is generally seen as a valid interest, courts do not always accept even proven budgetary restrictions as a justification for infringement on constitutional rights. As the opinion in Pugh stated:
[T]he response of [prison management] to the matters set forth in this opinion consistently has been that they cannot alleviate the conditions because of inadequate funding by the state legislature. However, a state is not at liberty to afford its citizens only those constitutional rights which fit comfortably within its budget.118
118Pugh v. Locke, 406 F. Supp. 318, 330 (M.D. Al. 1976).
In that case, the equal protection matter at issue was the inadequate number of vocational, educational, and work opportunities and the lack of rational distinctions in assigning prisoners to those opportunities.119
Id.
Since Pugh was decided in 1976, it does not use the Turner test. However, its assertion that budgetary concerns do not justify depriving prisoners of their constitutional rights remains relevant.
2. Factor two: other means of exercising rights
The second factor in the Turner test is whether prisoners have other means of exercising their rights—here, the right to keep themselves clean and healthy in the same way that non-menstruating prisoners can. Clearly, the use of unsanitary items like toilet paper, mattress stuffing, or rags does not achieve similar levels of health and hygiene to prisoners who are not bleeding and is therefore not a viable alternative to products designed for menstruation.121
Infra Part II. One actual alternative to disposable menstrual products is reusable products like a menstrual cup, period underwear, or cloth pads. However, a prison is unlikely to suggest this, since reusable products are more expensive and would require large upfront costs. Even if a prison did offer this as an alternative to providing disposable pads and tampons, it could be countered by the fact that these products must be cleaned or sanitized regularly in order to be safe to use. As discussed above, prison regulations make it very difficult to provide as needed laundering and sanitizing services. Infra Part II.B.
Infra Part II.
Infra Part II.
Infra Part II.
Fed. Bureau of Prisons, supra note NOTEREF _Ref90575659 \h 29 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600390030003500370035003600350039000000 , at 11.
See, e.g., First Step Act, Pub. L. No. 115–391, 132 Stat. 5194, § 611, (2018).
Other uses of the Turner test support the argument that commissary products do not constitute an acceptable alternative means of access. In Beerheide, the court noted that even though kosher meals were available for purchase and the cost might seem “like a pittance,” that price “must be assessed in the prison context” and consider how little prisoners are paid.127
Beerheide v. Suthers, 286 F.3d 1179, 1188 (10th Cir. 2002). Although cases of this type would generally be reviewed under the Religious Freedom Restoration Act, the Tenth Circuit evaluated this claim under pre-RFRA standards because the Act had just been overturned in City of Boerne v. Flores, 521 U.S. 507 (1997).
Beerheide, 286 F.3d at 1188–89.
3. Factor three: potential impact of accommodation
The third factor considers how an accommodation would impact the other prisoners and staff. It is difficult to see how providing sufficient menstrual products to everyone who needs them would negatively impact prisoners. On the contrary, the ability to hygienically manage one’s period would improve prisoner health. One potential counterargument could be that prison officials would have to take time away from their other duties to provide adequate menstrual products consistently to everyone who needs them. An easy way to eliminate this potential burden would be to make them freely available in common spaces like bathrooms. This would provide the added benefit of ensuring that prison officials are not using them as bargaining chips with prisoners and is a practice many prison advocates have encouraged.129
See Lee, supra note NOTEREF _Ref85891659 \h 68 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390031003600350039000000 .
A prison administration might further counter that free access would allow products to be used in unintended ways or hoarded by certain prisoners so that they can exert power over others. However, the Department of Justice has already looked into these concerns after they issued their 2017 report regarding adequate supply of period products.130
Evaluation and Inspections Div., U.S. Dep’t of Just., Review of the Federal Bureau of Prisons’ Management of Its Female Population 30 (Sept. 2018).
Id.
Id. at 30 n.65.
Id. at 30.
Another possible argument a prison administration might raise is the increased cost of buying enough pads and tampons for prisoners to manage periods hygienically. As discussed previously in this Part, there is evidence that adequate menstrual supplies serve as a preventative measure that saves money on healthcare over time.134
Infra Part III.C.
See Phil Schaenman et al., Opportunities for Cost Savings in Corrections Without Sacrificing Service Quality: Inmate Health Care, Urb. Instit. (Feb. 2013) (explaining that preventative care can bring down costs through eliminating the need for emergency services later).
Moreover, the federal government and twenty-three other states have passed laws mandating that prisons must provide sufficient menstrual products.136
See Feminine Hygiene Products and Prisons, supra note NOTEREF _Ref85889867 \h 60 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380039003800360037000000 .
See Weiss-Wolf, supra note NOTEREF _Ref85889830 \h 59 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380039003800330030000000 , at 511–12.
4. Factor four: alternative policies
The fourth and final factor to consider is whether there are alternative policies that would accomplish similar goals for the prison. The only alternative to providing adequate menstrual supplies is the status quo: delaying the provision of or entirely denying menstrual products to prisoners. A prison would most likely claim, once again, that lower costs are a goal of restricting access. As discussed in prior sections, this argument does not stand up even in light of the limited data available on prison expenses.138
Infra Part III.C.
Infra Part III.
The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h \* MERGEFORMAT 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 5.
This overview of what analysis under Turner might look like for a claim based on discrimination against menstruators shows that these cases have a chance of success even under rational basis review. Protected class status is not a necessary predicate to fighting for the right to protect one’s health and dignity.
D. Redefining Sex
TOPA potential alternative to menstruation-based discrimination cases is that sex could simply be redefined to be more inclusive. This way, no prisoners would be shut out of the changes forced by successful litigation, and the plaintiffs could still benefit from intermediate scrutiny by bringing their case as a protected class. For example, an advocate for the plaintiffs might argue that “sex” should be understood in this context to rely upon reproductive organs like a uterus and a vagina. A case could then allege sex-based discrimination while including everyone who menstruates. Although it is tempting to keep the heightened scrutiny demanded by cases involving protected classes, there are legal and practical problems with this approach.
Legally, there is no single definition of sex.141
Jared P. Cole, Cong. Rsch. Serv., LSB10229, Title IX: Who Determines the Legal Meaning of “Sex”? 1 (2018).
Id.
The practical problem with this definition of “sex” is that some plaintiffs will be referred to in ways with which they are uncomfortable because sex discrimination claims still require that everybody bringing the litigation be of the same sex. For transgender plaintiffs, being legally identified as of the female sex and potentially having to self-identify as such could very well worsen any gender dysphoria they may have, which is “a feeling of discomfort or distress that might occur in people whose gender identity differs from their . . . sex-related physical characteristics.”143
Gender Dysphoria, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/gender-dysphoria/symptoms-causes/syc-20475255[https://perma.cc/9BXS-FJY8].
Id.
E. Eighth Amendment Suits
TOPAt first glance, an Eighth Amendment suit might seem like a more inclusive way of bringing a suit for inadequate period products, as it does not tie the claim to the sex of the plaintiffs. However, Eighth Amendment claims must hurdle a high bar in terms of the conditions that would rise to a violation, meaning only the most egregious cases would have a good chance of succeeding.145
See Estelle v. Gamble, 429 U.S. 97, 104 (1976).
The Eighth Amendment establishes that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”146
U.S. Const. amend. VIII.
Hudson v. McMillan, 503 U.S. 1, 8–9 (1992) (quoting Rhodes v. Chapman, 453 U.S. 337, 346 (1981)).
See Atkins v. Virginia, 536 U.S. 304, 311–12 (2002).
See State Laws Around Menstrual Products in Prison, supra note NOTEREF _Ref96865304 \h 62 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600390036003800360035003300300034000000 .
See Atkins, 536 U.S. at 344–45 (Scalia, J., dissenting) (criticizing the evidence of eighteen state law changes as “embarrassingly feeble”).
In the context of claims related to the conditions of imprisonment, plaintiffs must allege deliberate indifference to prisoner health or safety.151
Id.
429 U.S. 97 (1976).
Id. at 99–101.
Id. at 105.
The reasoning in Estelle demonstrates the difficulty of showing that prisoner health or safety is threatened. The Court focused on “unnecessary and wanton infliction of pain” as the standard for an Eighth Amendment violation.155
Id. at 103.
See generally Note, The Psychology of Cruelty: Recognizing Grave Mental Harm in American Prisons, 128 Harv. L. Rev. 1250 (2015).
The law surrounding Eighth Amendment cases means they face a steeper uphill battle than Fourteenth Amendment ones. Of course, plaintiffs can and in many cases should bring both types of claims in one case; however, bringing an Eighth Amendment claim on its own would be unwise when there is a plausible gender-neutral avenue for a Fourteenth Amendment suit as well.
IV. Conclusion
TOPDenial of menstrual products to prisoners who need them is rampant throughout the prison system, even in federal facilities and states with laws mandating the distribution of menstrual hygiene supplies on an as-needed basis. Currently, there is sparse litigation on the topic, and all of it focuses on pads and tampons as exclusively feminine needs. Even in Eighth Amendment cases, the assumption is that relief applies only to women’s prisons. This view is increasingly at odds with the reality of the prison population. Many states have made it possible for their citizens to legally change their sex without accompanying proof of physical changes, and prisons are often forbidden from demanding to know the genital status of prisoners or assigning them to a facility based on their genitalia. As such, there is no guarantee that a prisoner in a male facility does not menstruate. Litigation strategies need to catch up. Sex discrimination claims both muddy the basis of the discrimination—the fact of menstruation—and either exclude some potential plaintiffs or require them to identify in ways they do not feel comfortable with for the purposes of the litigation.
Claiming discrimination on the basis of menstruation solves both issues. Focusing on the fact of menstruation makes the discrimination clear and frees plaintiffs from identifying as any particular sex. Although it may seem a clear disadvantage to give up the intermediate scrutiny that comes with a claim of sex discrimination, analysis of a hypothetical claim under rational basis review and the Turner test nevertheless shows promise of succeeding.
Of course, there are other barriers that plaintiffs must overcome. Access to courts, resources for pursuing litigation, and lack of recognition of menstrual products as a basic human need all stand in the way of a successful case. However, when overcoming these obstacles, we should have a goal in mind that is inclusive and supportive of every prisoner experiencing harms related to the deprivation of essential menstrual hygiene products. Advocating for menstrual hygiene rights for incarcerated plaintiffs starts with respecting their lived identity. A litigation strategy that is shaped to fit that identity will do far more to respect the plaintiffs than one that expects them to erase a part of themselves to benefit from it.
- 1See Am. Civ. Liberties Union, The Unequal Price of Periods: Menstrual Equity in the United States 3 (2019) [hereinafter The Unequal Price of Periods].
- 2Id.
- 3See The Facts on Tampons—and How to Use Them Safely, Food and Drug Admin. (Sept. 9, 2020), https://www.fda.gov/consumers/consumer-updates/facts-tampons-and-how-use-them-safely[https://perma.cc/6WRH-EW7L](noting that no tampon can safely be worn longer than eight hours); Preparing Your Child for Menstruation, Mayo Clinic (Aug. 11, 2020), https://www.mayoclinic.org/healthy-lifestyle/tween-and-teen-health/in-depth/menstruation/art-20046004[https://perma.cc/5SWC-KUXT](explaining the importance of changing menstrual pads every four to eight hours).
- 4Mitchell O’Shea Carney, Note, Cycles of Punishment: The Constitutionality of Restricting Access to Menstrual Health Products, 61 B.C. L. Rev. 2541, 2548–49 (2020).
- 5Id.
- 6See id. at 2549.
- 7No. 1:14-cv-1245, 2015 WL 9906265 (W.D. Mich. Sept. 11, 2015).
- 8Id. at *10.
- 9Id. at *9–10.
- 10See Turano v. Cnty. of Alameda, No. 17-cv-06953 (N.D. Cal. May 23, 2019) [hereinafter Turano III] (ordering the parties to file a dismissal due to the settlement); Flores v. City of New York, No. 19-CV-5763, 2021 WL 663977 (E.D.N.Y. Feb. 19, 2021).
- 11See Semelbauer, 2015 WL 9906265, at *8 (specifying female prisoners as the ones suffering the deprivation); Turano v. Cnty. of Alameda, No. 17-cv-06953, 2018 WL 5629341, at *5–6 (N.D. Cal. Oct. 30, 2018) [hereinafter Turano II] (bringing an Equal Protection claim based on sex discrimination); Flores, 2021 WL 663977, at *5 (also bringing a sex-based discrimination Equal Protection claim).
- 12See Turano II, 2018 WL 5629341, at *5–6; Flores, 2021 WL 663977, at *5.
- 13The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 3.
- 14See Jerilynn Prior, Very Heavy Menstrual Flow, Ctr. for Menstrual Cycle and Ovulation Rsch. (Oct. 4, 2017), https://www.cemcor.ubc.ca/resources/very-heavy-menstrual-flow[https://perma.cc/QM64-Q8Q8];The Ultimate Guide to Feminine Hygiene, Duquesne Univ. Sch. of Nursing, https://onlinenursing.duq.edu/master-science-nursing/the-ultimate-guide-to-feminine-hygiene/[https://perma.cc/L5LT-WT8L];Heavy Periods: Overview, Inst. for Quality & Efficiency in Health Care (May 4, 2017), https://www.ncbi.nlm.nih.gov/books/NBK279294/[https://perma.cc/3E5G-GNYM].Typically, people bleed enough to completely soak one to seven period products during a cycle. However, since a cycle generally lasts three to five days and disposable period products must be changed out every four to eight hours, people often switch their pad or tampon before it is fully saturated. For example, one report found that seventy percent of menstruators use about twenty tampons per cycle. Additionally, nine to fourteen percent of menstruators have heavy periods, meaning they will bleed enough to completely soak sixteen disposable menstrual products.
- 15See Carney, supra note NOTEREF _Ref85886875 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003800370035000000 , at 2547.
- 16The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 4.
- 17Id.
- 18Multipack Perfection Silk Unscented Tampons, Walgreens (Oct. 17, 2022), https://www.walgreens.com/store/c/walgreens-multipack-perfection-silk-unscented-tampons/ID=300424512-product.
- 19See Half of Americans Have Family Members Who Have Been Incarcerated, Equal Just. Initiative (Dec. 11, 2018), https://eji.org/news/half-of-americans-have-family-members-who-have-been-incarcerated/[https://perma.cc/4L4E-5A7J].
- 20Id. at 2546–47.
- 21Id.
- 22It should be noted that sexual misconduct by guards is rarely disciplined. A 2016–2018 Bureau of Prisons report found that while 45,581 staff-on-inmate sexual assaults were reported in all federal, state, and local prisons, only 2,816 were “substantiated,” meaning there was enough evidence to prove it had occurred. As such, simply reporting the offending official is not an adequate remedy to protect prisoners from this form of coercion. Emily D. Buehler, U.S. Dep’t of Just., Special Report: Sexual Victimization Reported by Adult Correctional Authorities, 2016–2018 6 (2021).
- 23Carney, supra note NOTEREF _Ref85886875 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003800370035000000 , at 2546–47; The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h \* MERGEFORMAT 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 3–4.
- 24See The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 3–4.
- 25Carney, supra note NOTEREF _Ref85886875 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003800370035000000 , at 2548.
- 26See Toxic Shock Syndrome, Mayo Clinic (Mar. 18, 2020), https://www.mayoclinic.org/diseases-conditions/toxic-shock-syndrome/symptoms-causes/syc-20355384[https://perma.cc/8WTX-CRN9].
- 27Carney, supra note NOTEREF _Ref85886875 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003800370035000000 , at 2548–49.
- 28See Carney, supra note NOTEREF _Ref85886875 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003800370035000000 , at 2549.
- 29Fed. Bureau of Prisons, Inmate Information Handbook 10 (2012).
- 30Id. at 7.
- 31You’ve Been Sitting in Wet Clothes¾Now That Troubling Itch May Mean a Yeast Infection, Norton Healthcare (Sept. 12, 2018), https://nortonhealthcare.com/news/that-troubling-itch-may-mean-a-yeast-infection/[https://perma.cc/YYH9-JY9H].
- 32See Nat’l Inst. for Occupational Safety and Health, Correctional Health Care Workers: Cross-Contamination, Ctrs. for Disease Control (Aug. 18, 2010), https://www.cdc.gov/niosh/topics/correctionalhcw/cross.html[https://perma.cc/5HCF-X62Q].
- 33Carney, supra note NOTEREF _Ref85886875 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003800370035000000 , at 2546–47.
- 34See The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 4.
- 35See id.; Margaret Johnson, Menstrual Justice, 53 U.C. Davis L. Rev. 1, 47 (2019).
- 36Staff Gender, Fed. Bureau of Prisons (Feb. 5, 2022), https://www.bop.gov/about/statistics/statistics_staff_gender.jsp[https://perma.cc/P6W9-HURB](the BOP does not provide a breakdown of how many guards are cisgender, but since the majority of the population is cisgender, it stands to reason that most guards are as well).
- 37Linda L. Zupan, Men Guarding Women: An Analysis of the Employment of Male Correction Officers in Prisons for Women, 20 J. Crim. Just. 300 (1992).
- 38The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 4.
- 39See Andrea Fenster & Margo Schlanger, Slamming the Courthouse Door: 25 Years of Evidence for Repealing the Prison Litigation Reform Act, Prison Pol’y Initiative (Apr. 26, 2021), https://www.prisonpolicy.org/reports/PLRA_25.html[https://perma.cc/ZJ69-9PHN](detailing how the Prison Litigation Reform Act requires plaintiffs to exhaust all internal administrative remedies, makes incarcerated people ineligible for filing fee waivers, restricts available remedies, and caps attorney’s fees at below market rates).
- 40See generally Turano v. Cnty. of Alameda, No. 17-cv-06953, 2018 WL 3054853 (N.D. Cal. June 20, 2018) [hereinafter Turano I]; Flores, 2021 WL 663977.
- 41No. 17-cv-06953, 2018 WL 3054853 (N.D. Cal. June 20, 2018).
- 42Id. at *2.
- 43Id.
- 44Id. at *8.
- 45See Turano II, 2018 WL 5629341, at *6.
- 46Id. (emphasis in original).
- 47Compare Turano II, 2018 WL 5629341, at *5–6, with Turano I, 2018 WL 3054853, at *7–8.
- 48See Turano III.
- 4919-CV-5763, 2021 WL 663977 (E.D.N.Y. Feb. 19, 2021).
- 50Id. at *1.
- 51Id.
- 52Id. at *6.
- 53Id. (citing Turano I, at *8).
- 54See id.
- 55Semelbauer v. Muskegon Cnty., No. 1:14-cv-1245, 2015 WL 9906265, at *8 (W.D. Mich. Sept. 11, 2015).
- 56Id. at *8–10.
- 57Id.
- 58Id. at *9–10.
- 59See Jennifer Weiss-Wolf, U.S. Policymaking to Address Menstruation: Advancing an Equity Agenda, 25 Wm & Mary J. Race, Gender & Soc. Just. 493, 511–12 (2019).
- 60MOST Pol’y Initiative, Feminine Hygiene Products and Prisons 2 (2021).
- 61Weiss-Wolf, supra note NOTEREF _Ref85889830 \h 59 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380039003800330030000000 , at 511–12.
- 62State Laws Around Menstrual Products in Prison, The Prison Flow Project (Nov. 11, 2021), https://theprisonflowproject.com/state-laws-around-access/[https://perma.cc/9T33-Y2EE].
- 63See Food & Drug Admin., Menstrual Tampons and Pads: Information for Premarket Notification Submissions (501(k)s) 7 (July 2005); 21 C.F.R. § 884.5425 (1980). The FDA regulations assume that pads have a “core,” which is the absorbent portion. The regulatory definition also describes their purpose as “absorb[ing] menstrual or other vaginal discharge.” However, many products that prison officials give for free are described as entirely nonabsorbent, indicating that they do not satisfy the FDA definition of a pad.
- 64See Feminine Hygiene Products and Prisons, supra note NOTEREF _Ref85889867 \h 60 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380039003800360037000000 .
- 65First Step Act, Pub. L. No. 115–391, 132 Stat. 5194 (2018).
- 66Id. § 611 (“The Director of the Bureau of Prisons shall make [tampons and sanitary napkins] available to prisoners for free, in a quantity that is appropriate to the healthcare needs of each prisoner.”).
- 67See Derek Gilna, New Policies for Federal and State Prisoners Guarantee Feminine Hygiene Products, Prison Legal News (Apr. 2, 2018), https://www.prisonlegalnews.org/news/2018/apr/2/new-policies-federal-and-state-prisoners-guarantee-feminine-hygiene-products/[https://perma.cc/R9EQ-PTTR].
- 68Jean Lee, 5 Pads for 2 Cellmates: Period Inequity Remains a Problem in Prisons, The 19th (June 29, 2021), https://19thnews.org/2021/06/5-pads-for-2-cellmates-period-inequity-remains-a-problem-in-prisons/[https://perma.cc/DR6K-FL6D].
- 69See Gilna, supra note NOTEREF _Ref85890195 \h 67 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390030003100390035000000 ; Lee, supra note NOTEREF _Ref85891659 \h 68 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390031003600350039000000 .
- 70Lee, supra note NOTEREF _Ref85891659 \h 68 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390031003600350039000000 .
- 71Alexa Doiron, Despite 2019 Law, Some Jails Still Don’t Provide Free Menstrual Products to Female Inmates, WY Daily (Mar. 9, 2020), https://wydaily.com/local-news/2020/03/09/despite-2019-law-some-jails-still-dont-provide-free-menstrual-products-to-female-inmates/[https://perma.cc/PR62-8TUX].
- 72Id.
- 73See Amy Ralston Povah, BOP Report Card – Feminine Hygiene, CAN-DO Just. Through Clemency (Oct. 9, 2017), http://www.candoclemency.com/bop-report-card-feminine-hygiene/[https://perma.cc/TU4M-MYVA].
- 74See Bureau of Prisons, Transgender Offender Manual Change Notice (Jan. 18, 2017) (The cited document is the Trump-era regulations, with the prior regulations included but struck out).
- 75Id.
- 76See Bureau of Prisons, Transgender Offender Manual 6 (Jan. 13, 2022).
- 77See Project on Addressing Prison Rape, Wash. Coll. of L., https://www.wcl.american.edu/impact/initiatives-programs/endsilence/state-by-state-transgender-housing-policies/[https://perma.cc/DV57-XVQT];Adam Beam, California Will House Transgender Inmates By Gender Identity, ABC News (Sept. 26, 2020), https://abcnews.go.com/US/wireStory/california-house-transgender-inmates-gender-identity-73268318[https://perma.cc/E4DL-QPWB].
- 78See Project on Addressing Prison Rape, supra note NOTEREF _Ref85890499 \h 77 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390030003400390039000000 .
- 79See id.
- 80See id.
- 81Identity Document Laws and Policies, Movement Advancement Project (Aug. 3, 2021), https://www.lgbtmap.org/equality-maps/identity_document_laws/birth_certificate[https://perma.cc/RNQ9-FXXA].
- 82See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439–40 (1985).
- 83See Turner v. Safley, 482 U.S. 78, 95–96 (1987); Campbell v. Quiros, No. 3:17-cv-946, 2018 WL 888723, at *5 (D. Con. Feb. 13, 2018) (acknowledging that plaintiff pled sufficient facts to state a claim); Green v. Santiago, No. 3:16-cv-1724, 2017 WL 2312355, at *9 (D. Conn. May 26, 2017) (also allowing for equal protection claims to proceed based on the alleged facts).
- 84482 U.S. 78, 95–96 (1987).
- 85Id. at 81–82.
- 86Id. at 89.
- 87Id.
- 88Id. at 89–90.
- 89Id. at 90.
- 90Id.
- 91Id.
- 92See Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979).
- 93See infra Part III.
- 94Turano, 2018 WL 3054853, at *8.
- 95Infra Part REF _Ref85891521 \w \h 0 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390031003500320031000000 .
- 96Infra Part REF _Ref85891521 \w \h 0 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390031003500320031000000 .
- 97Pub. Safety Dep’t., Haw. Cmty. Corr. Ctr., Inmate Guidelines 15 (2014).
- 98Id.
- 99Mass. Dep’t of Corr., 103 DOC 750, Hygiene Standards 7 (2022).
- 100S. N.M. Corr. Facility, Inmate Handbook 8 (2014).
- 101382 F. Supp. 1177 (M.D. Al., 1974).
- 102406 F. Supp. 318 (M.D. Al. 1976).
- 103Wallace, 382 F. Supp. at 1181–82.
- 104Id. at 1182.
- 105See generally Pugh, 406 F. Supp. 318.
- 106It should be noted here that another potential hurdle in litigation of this kind is qualified immunity, which could apply if plaintiffs were suing a prison official as an individual. Since deprivation of period products is more a product of systemic failure than individual misbehavior, we will assume for purposes of this Comment that plaintiffs are suing the government entity responsible, which would make qualified immunity inapplicable.
- 107514 F.3d 789 (8th Cir. 2008).
- 108Id. at 795.
- 109See id.
- 110See Samantha Michaels, Getting Your Period in Prison is Hell. These Numbers Prove It., Mother Jones, https://www.motherjones.com/crime-justice/2019/05/getting-your-period-in-prison-is-hell-these-numbers-prove-it/[https://perma.cc/P96Z-ZFD7].
- 111State Prisons and the Delivery of Hospital Care, Pew Charitable Trs. (July 19, 2018), https://www.pewtrusts.org/en/research-and-analysis/reports/2018/07/19/state-prisons-and-the-delivery-of-hospital-care[https://perma.cc/7W7K-S8FR].
- 112Kelly N. Wright et al., Costs and Outcomes of Abdominal, Vaginal, Laparoscopic, and Robotic Hysterectomies, 16(4) J. Soc’y Laparoscopic & Robotic Surgeons 519, 522 (2012).
- 113Mark A. Strom et al., Prevalence, Comorbidities, and Mortality of Toxic Shock Syndrome in Children and Adults in the USA, 61(11) Microbiology & Immunology 463, 465 (2017).
- 114See Emma Goldberg, Many Lack Access to Pads and Tampons. What Are Lawmakers Doing About It?, N.Y. Times (Jan. 13, 2021), https://www.nytimes.com/2021/01/13/us/tampons-pads-period.html[https://perma.cc/GUD9-YGPR].
- 115See State Prisons and the Delivery of Hospital Care, supra note NOTEREF _Ref90993764 \h 111 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600390030003900390033003700360034000000 .
- 116There is some concern that forcing prisons to pay for menstrual products would result in forced sterilization or other involuntary medical interventions (like certain types of birth control) that would prevent menstruation and thereby reduce costs. Such an outcome is clearly undesirable but thankfully is unlikely. As mentioned, a hysterectomy (which is a sterilization) is far more expensive than supplying menstrual products over an individual’s entire reproductive life, and hormonal birth control also requires regular supply (reupping birth control pill packs, for example), meaning the prison would still have monthly expenses for all menstruating prisoners.
- 117Beerheide v. Suthers, 286 F.3d 1179, 1189–90 (10th Cir. 2002) (emphasis in original).
- 118Pugh v. Locke, 406 F. Supp. 318, 330 (M.D. Al. 1976).
- 119Id.
- 120Since Pugh was decided in 1976, it does not use the Turner test. However, its assertion that budgetary concerns do not justify depriving prisoners of their constitutional rights remains relevant.
- 121Infra Part II. One actual alternative to disposable menstrual products is reusable products like a menstrual cup, period underwear, or cloth pads. However, a prison is unlikely to suggest this, since reusable products are more expensive and would require large upfront costs. Even if a prison did offer this as an alternative to providing disposable pads and tampons, it could be countered by the fact that these products must be cleaned or sanitized regularly in order to be safe to use. As discussed above, prison regulations make it very difficult to provide as needed laundering and sanitizing services. Infra Part II.B.
- 122Infra Part II.
- 123Infra Part II.
- 124Infra Part II.
- 125Fed. Bureau of Prisons, supra note NOTEREF _Ref90575659 \h 29 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600390030003500370035003600350039000000 , at 11.
- 126See, e.g., First Step Act, Pub. L. No. 115–391, 132 Stat. 5194, § 611, (2018).
- 127Beerheide v. Suthers, 286 F.3d 1179, 1188 (10th Cir. 2002). Although cases of this type would generally be reviewed under the Religious Freedom Restoration Act, the Tenth Circuit evaluated this claim under pre-RFRA standards because the Act had just been overturned in City of Boerne v. Flores, 521 U.S. 507 (1997).
- 128Beerheide, 286 F.3d at 1188–89.
- 129See Lee, supra note NOTEREF _Ref85891659 \h 68 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800390031003600350039000000 .
- 130Evaluation and Inspections Div., U.S. Dep’t of Just., Review of the Federal Bureau of Prisons’ Management of Its Female Population 30 (Sept. 2018).
- 131Id.
- 132Id. at 30 n.65.
- 133Id. at 30.
- 134Infra Part III.C.
- 135See Phil Schaenman et al., Opportunities for Cost Savings in Corrections Without Sacrificing Service Quality: Inmate Health Care, Urb. Instit. (Feb. 2013) (explaining that preventative care can bring down costs through eliminating the need for emergency services later).
- 136See Feminine Hygiene Products and Prisons, supra note NOTEREF _Ref85889867 \h 60 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380039003800360037000000 .
- 137See Weiss-Wolf, supra note NOTEREF _Ref85889830 \h 59 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380039003800330030000000 , at 511–12.
- 138Infra Part III.C.
- 139Infra Part III.
- 140The Unequal Price of Periods, supra note NOTEREF _Ref85886035 \h \* MERGEFORMAT 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600380035003800380036003000330035000000 , at 5.
- 141Jared P. Cole, Cong. Rsch. Serv., LSB10229, Title IX: Who Determines the Legal Meaning of “Sex”? 1 (2018).
- 142Id.
- 143Gender Dysphoria, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/gender-dysphoria/symptoms-causes/syc-20475255[https://perma.cc/9BXS-FJY8].
- 144Id.
- 145See Estelle v. Gamble, 429 U.S. 97, 104 (1976).
- 146U.S. Const. amend. VIII.
- 147Hudson v. McMillan, 503 U.S. 1, 8–9 (1992) (quoting Rhodes v. Chapman, 453 U.S. 337, 346 (1981)).
- 148See Atkins v. Virginia, 536 U.S. 304, 311–12 (2002).
- 149See State Laws Around Menstrual Products in Prison, supra note NOTEREF _Ref96865304 \h 62 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600390036003800360035003300300034000000 .
- 150See Atkins, 536 U.S. at 344–45 (Scalia, J., dissenting) (criticizing the evidence of eighteen state law changes as “embarrassingly feeble”).
- 151Id.
- 152429 U.S. 97 (1976).
- 153Id. at 99–101.
- 154Id. at 105.
- 155Id. at 103.
- 156See generally Note, The Psychology of Cruelty: Recognizing Grave Mental Harm in American Prisons, 128 Harv. L. Rev. 1250 (2015).