Menstrual Product Deprivation in Prison: A Sex-Neutral Litigation Strategy

Prisons at both the state and federal levels routinely deny or severely restrict access to menstrual supplies for those who need them.11

Detainees and prisoners alike are left to bleed onto their clothes and the floor of their cells.22 As a result, incarcerated people often resort to unhygienic means of managing their periods, such as leaving a tampon inserted for longer than recommended33 or using unsterilized items like toilet paper to absorb blood.44 The consequences of unhygienic period management can be acute, like toxic shock syndrome, or chronic, like cervical cancer.55

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.66

In Semelbauer v. Muskegon County,77 the court issued a judgement on the pleadings and dismissed the case because each plaintiff had only alleged a single instance where delivery of period products was delayed, making the deprivations de minimis.88 This was in spite of six different plaintiffs testifying that they had been left without pads after begging the guards for them.99 Two other cases have survived summary judgment, but one ended in a settlement and the other has not yet been resolved.1010

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.1111

In some cases, the litigation explicitly excludes non-women by bringing an Equal Protection claim based on sex discrimination.1212 Any prisoner who is not a woman but who also needs period products and suffers from their deprivation would be unable to join in the litigation or reap the benefits of a favorable judgment.

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.

Lack 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.1313

This is barely enough to cover one day of bleeding, let alone an entire cycle.1414 Moreover, the products are often of such low quality that prisoners must change out the products more frequently than is normally necessary to compensate for the lack of absorbency.1515

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.1616

A box of tampons in Colorado can run a prisoner two weeks of wages.1717 For comparison, a box of thirty-six tampons currently costs less than six dollars at Walgreens.1818

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.1919

As such, the option to purchase menstrual products does not represent a viable alternative to free, prison-provided pads and tampons.

Exacerbating the quality and access issues is the discretion that prison officers exercise over distributing menstrual health products.2020

In jurisdictions where the number of pads and tampons is not specified by law or prison policies, correctional officers can decide when and in what quantities to distribute the products, even in facilities where there is no cap on the number of products prisoners are allowed to have.2121 This provides officers with an additional source of power, which they use as a bargaining chip to control how prisoners behave. This coercion can take the form of withholding adequate supplies as a punishment for unwanted behavior or forcing prisoners into sex acts2222 in exchange for pads and tampons.2323

There are myriad negative effects of denying prisoners the means to hygienically manage menstruation.2424

Those who do not have access to pads and tampons resort to inserting toilet paper, mattress filling, or dirty rags to absorb blood or leaving in the tampons they are issued for longer than is recommended.2525 Internal use of items that are not only unsanitary but difficult to remove creates a serious risk of toxic shock syndrome, which is a complication of certain bacterial infections.2626 Toxic shock syndrome can cause, among other things, high fevers, low blood pressure, vomiting, and seizures, which can finally result in death if an emergency hysterectomy is not performed.2727 Pads, although not used internally, can also cause a bacterial infection when used for excessive periods of time, which frequently happens when products are so restricted.2828

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.2929

If a prisoner were to bleed through their pad or tampon while sleeping, they would be unable to clean themselves until the morning. Laundry facilities are only available once a week,3030 meaning that some people are forced to live in soiled, blood-soaked uniforms for days on end. While this may seem like a mere discomfort, staying in perpetually wet clothing can cause other health problems, like yeast infections.3131 Moreover, some bloodborne pathogens can survive in dried blood for up to a week, creating a potential health risk for any other prisoners who come across leaked period blood.3232

The effects are not solely physical. Because prison officials have broad discretion over how they distribute menstrual products,3333

prisoners undergo the humiliation of having to beg for basic hygienic supplies and the fear of having their requests ignored.3434 Some incarcerated individuals are even mocked or called disgusting for having period blood on their legs and describe the lack of menstrual products as “one of the most degrading aspects of incarceration.”3535 Since almost three-quarters of federal prison staff are cisgender men3636 and male officers are routinely staffed in both male and female prison facilities,3737 menstruating prisoners are likely to have to beg for basic hygiene items from guards who have never experienced a period and have no firsthand concept of the physical and mental effects it has on the body. This lack of understanding exacerbates the feelings of degradation and helplessness that prisoners who menstruate experience every month.

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.3838

Constant humiliation for a natural bodily function and fear that they will be unable to manage it hygienically is a mental burden for menstruators that non-menstruating prisoners do not have to bear.

Due 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.3939

Of these plaintiffs, most have characterized the deprivation of period products as sex discrimination and brought Fourteenth Amendment claims.4040 In Turano v. County of Alameda,4141 the plaintiff was denied any menstrual hygiene products for hours while she banged on the windows of her cell and bled through her clothes.4242 When the prison eventually provided her with two pads, she got blood on her hands, and the guards denied her soap to wash up.4343 The District Court for the Northern District of California initially dismissed the plaintiff’s Fourteenth Amendment claim because the prison’s failure to provide a “gender-specific requirement” could not be interpreted as the automatic “result of an intent to discriminate based on gender.”4444

In the opinion handed down on Ms. Turano’s amended complaint, the court once again explicitly gendered the deprivation of period products.4545

The District Court found that because the prison had failed to enforce a policy that “applies only to female inmates,” the plaintiff did not need to establish discriminatory intent.4646 There is nothing to suggest that the second complaint alleged significantly different facts from the first or had a different argument. Instead, the court issuing the second opinion sought out and relied on caselaw that supported the inference of intent from the assumed gender specificity of the policy, while the first did not.4747 This suggests that proving sex discrimination from menstrual product deprivation is far from a given. Success may depend on the willingness of a particular court to view the nonenforcement of a supposedly sex-specific policy as sex discrimination. The case settled before the court issued a final ruling on whether the detainment facility had committed a Fourteenth Amendment violation.4848

In Flores v. City of New York,4949

the plaintiff was arrested on misdemeanor charges while menstruating. She requested period products at the precinct and was informed that none were available.5050 Ultimately, Ms. Flores was forced to wait six hours for her attorney to bring her tampons, at which point her clothes were ruined.5151 When she brought suit for this treatment, the district court held that Ms. Flores’s case should be allowed to proceed to discovery because she had shown that the prison policy around menstrual hygiene products disparately affected women.5252 Nevertheless, the court did warn Ms. Flores that she would need to show more than just the failure to provide a “unique female requirement,” citing the opinion handed down in Turano I, in which Ms. Turano’s complaint was dismissed.5353 Unlike that Turano opinion, the court in Flores concluded that disparate impact was enough to proceed past summary judgment¾further demonstrating that the success of sex-based discrimination claims is at least in part at the mercy of how a court interprets the relevant law.5454

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.5555

Six different plaintiffs testified that they had been denied menstrual hygiene products for spans of time ranging from several hours to two days.5656 Nevertheless, the District Court found that their complaints amounted to a de minimis violation of rights that did not rise to an Eighth Amendment violation.5757 To justify this conclusion, the court pointed out that each complaint had only represented a one-time occurrence and, in each case, the plaintiffs had eventually received products.5858

The issue of access to menstrual products has gained more legislative attention in recent years.5959

New York was the first state to take action, passing legislation requiring correctional facilities to provide free feminine hygiene products in 2016.6060 In 2017, Colorado required the budget for state prisons to include funding for tampons.6161 Currently, twenty-three states and the District of Columbia require free access to menstrual products in their prisons and correctional facilities, although some laws do place caps on the number of products, while others specifically exclude any non-woman prisoner.6262 This leaves twenty-seven states without any regulation at all on what prisons will provide to those they incarcerate. In the states that do regulate access to menstrual products, reports indicate that the products were less absorbent than the industry standard,6363 implying that the legislation has not addressed the quality issues.6464

On the federal level, Congress passed the First Step Act in 2018.6565

It mandated that the Director of the Bureau of Prisons make free menstrual hygiene products available “in a quantity that is appropriate to the healthcare needs of each prisoner.”6666 This legislation followed a Bureau of Prisons policy change which dictated that federal prisons must provide free menstrual hygiene products to female prisoners.6767 While this legislation seems to represent progress, the language is quite broad and leaves distribution mainly up to the discretion of prison officials.6868 This means prisoners still face the humiliation of having to beg for period products and the danger of officers using the power of distribution in coercive ways.

Moreover, there is evidence at the state and federal levels that prison administrations have ignored or delayed adopting the new policies.6969

In Maryland, for example, Robert Green, the Public Safety and Correctional Services Secretary for the state, confirmed that their women’s prison was not consistently following the new policy as of 2019.7070 Similarly, the Virginia Menstrual Equity Coalition provided empirical evidence to suggest that distribution of products was “low and inconsistent” after that state’s law change.7171 Prisoners continued to use many of the same unsanitary measures to manage their periods that they had been forced to resort to before the legislation was passed.7272 In federal prisons, a 2017 survey found that even after the BOP policy change, prisoners continued to suffer from irregular allocation, restrictions on products, or even a complete lack of free products.7373 These continuing inadequacies suggest that litigation is still necessary even at the federal level and in states with laws about menstrual product supply.

Litigation 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.”7474

However, the policy was changed under President Trump to make what is termed “biological sex” the “initial determination for designation,” with assignments based on identified gender “appropriate only in rare cases.”7575 However, with the Biden administration has come another change—the Director of the Bureau of Prisons has issued a new version of the Offender Manual that reinstates the Obama-era policy of housing transgender prisoners on a case-by-case basis, considering both lived identity and prisoner safety.7676

State policies vary widely, from basing the determination of housing solely on genitalia to basing it solely on gender identification.7777

However, the majority of states have something in between, with determinations to be made “on a case-by-case basis.”7878 Additionally, many states expressly prohibit guards from searching the detainee with the goal of discovering their genital status.7979 This is significant because it suggests that prisons may base their case-by-case determinations in part on the legal sex of the prisoner. Indeed, certain policies mention that prison officials are allowed to base housing decisions on their own impressions of the gender of the prisoner, which would reasonably be informed by their legal sex on any identification documents.8080 Since twenty-four states and the District of Columbia allow for individuals to change their legal sex without any proof of surgery or other physical transitions, one’s genitalia and legal sex may very well not be linked when prisons determine housing.8181

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.

This 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.

Menstruation 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.8282

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.8383

One particularly instructive case is Turner v. Safley,8484 an equal protection case brought by a Missouri prisoner alleging that the prison’s refusal to allow him to get married constituted discrimination on the basis of his status as a prisoner.8585 Applying a rational basis standard, the Supreme Court first articulated the principle that “when a prison regulation impinges upon inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”8686

The Court further identified four factors that went into determining the reasonableness of a prison practice.8787

The first factor is whether the regulation has a rational relation to the stated goal, which must be a legitimate government interest.8888 The second factor is whether there are other avenues for prisoners to exercise their rights.8989 The third factor is what impact the accommodation will have on guards and other prisoners.9090 The fourth and final factor is the existence of ready alternatives to the regulation in question.9191

To 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.9292

The disparate impact is clear—prisoners who menstruate suffer from reduced hygiene by living in bloodstained clothes and cells; they experience shame and humiliation from seeing family members or counsel in an unclean state; they are mocked for bleeding on themselves; and they can contract short- and long-term health consequences, some of which are fatal.9393 Prisoners who do not menstruate do not have to face these issues.

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.9494

However, if the alleged class that experienced discrimination is those who menstruate, it becomes more difficult to deny intent, since the form of discrimination is so closely connected to the defining feature of the class. This is particularly true in the context of the behavior that often surrounds menstrual products in prison. As previously discussed, menstrual products are used as bargaining chips, sometimes to the extent of coercing prisoners to perform sex acts in exchange for a few pads.9595 In other cases, prisoners are mocked for bleeding and getting covered in their own blood.9696 Scenarios in which prison officials degrade menstruating prisoners or use menstrual products as tools of coercion clearly demonstrate that those officials are intentionally and maliciously singling out those who menstruate for harsher treatment on the basis of their menstruation.

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.9797

That is, they ensure prisoners are supplied with all hygiene items except menstrual products, which are never mentioned.9898 Massachusetts’s prisoner hygiene policy provides for toilet paper and soap upon request and spends a page and half detailing the distribution of razors but says nothing about menstrual products.9999 New Mexico issues “soap, toothbrush[es], toothpaste, cloth towels and razors” so prisoners can maintain personal cleanliness, but does not seem to consider menstrual products to be an essential hygiene item.100100

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,101101

which later became part of the larger class action Pugh v. Locke,102102 alleged a Fourteenth Amendment Equal Protection violation because of the arbitrary way the prison administration doled out access to educational and vocational programs. In this case, no class was alleged at all; the claim was predicated on the differential treatment of prisoners that lacked any justification.103103 Wallace survived a motion to dismiss because the plaintiffs had alleged differential treatment with regard to access to vocational programs, and the prison had failed to show how this differential treatment served any purpose.104104 The successful resolution of this and similar claims in Pugh demonstrates that equal protection suits in the prison context do not need to identify a protected class to prevail.105105

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.

Applying 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.106106

This Section will step through each of the four Turner factors as they would be applied in these cases.

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. Crawford107107

criticized the prison administration’s defense that allowing hospital abortion procedures would threaten security by increasing the number of “outcounts,” or prisoners temporarily exiting the prison.108108 The court noted that the visits needed for prenatal care and labor would result in more outcounts than the single visit needed for an abortion, meaning that allowing abortion access would reduce outcounts and presumably increase prison security.109109

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.110110

In contrast, a recent report by Pew found that hospitalizations comprise a significant portion of state prisons’ healthcare budget, often over twenty percent.111111 Of course, not all of those hospitalizations are due to poor gynecological health, but the easy preventability of conditions like toxic shock syndrome make them low-hanging fruit for states looking to lower healthcare costs. This is particularly true in light of the costs associated with procedures like hysterectomies, which can cost anywhere from $30,000 to $40,000,112112 and treatment for toxic shock syndrome, which costs roughly $25,000.113113 For comparison, non-incarcerated people spend an average of about $4,000 on period products over their entire reproductive lifetimes.114114 In fact, state corrections officers scrutinize preventable hospitalizations like the ones involved in treating toxic shock syndrome particularly carefully, as it could indicate that the facility in question is not using its healthcare budget effectively.115115 This data indicates that not only could prison administrations actually save money by providing adequate menstrual care, many state administrations would view the lack of such preventative measures as wasteful.116116

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.117117

As such, a prison cannot claim cost management as a valid goal without the data to show that menstrual products would constitute a considerable financial burden.

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.118118

118

Pugh v. Locke, 406 F. Supp. 318, 330 (M.D. Al. 1976).Hide

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.119119

The lack of sufficient opportunities and the lack of standards in distributing the few that were available mirrors the current situation with period products. If prisoners have an interest in equal access to vocational opportunities that takes precedence over a prison’s interest in saving money, surely a prisoner’s interest in equal access to essential hygiene maintenance is more important than budgetary concerns as well.120120

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.121121

As discussed above, prisons do generally stock pads and tampons in the commissary, but the price is heavily inflated.122122 Given the pennies prisoners are paid as wages and the large proportion of prisoners who come from poor backgrounds,123123 this “alternative” to free prison-issue products is scarcely an option for most of the people who need it.124124 These products would also only be available when prisoners are allowed to visit the commissary, which in federal prisons is once a week.125125 This is a significant restriction compared to products provided by the prison, which are generally supposed to be given according to prisoner need.126126

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.127127

It also noted that many prisoners are not supported by family outside the prison and therefore are entirely reliant on tiny prison wages, which they also use for other basic needs.128128 In this analytical context, it is highly unlikely that a court would see period products as “accessible” to prisoners when they are offered at inflated prices in the commissary.

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.129129

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.130130

Where states had made the products freely available in common areas, any hoarding issues stopped once prisoners were convinced that they would have consistent, regular access to the products they needed.131131 Misuse was also not seen to be a problem; indeed, officials stated that not only were they not misused in fact, but there was also no way free access could pose a security threat.132132 In the same report, the Department even noted that any distribution regime that tightly controlled access to menstrual products and required prisoners to request more did not meet the federal policy requiring prisons to make products available.133133

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.134134

Given that prisoners often experience severe medical consequences from unsanitary substitutes for pads and tampons, the decrease in emergency services like hysterectomies and treatment for toxic shock syndrome might make up for the increased cost of hygiene products.135135

Moreover, the federal government and twenty-three other states have passed laws mandating that prisons must provide sufficient menstrual products.136136

While this does not necessarily imply that those mandates are funded, several of the states in question explicitly require the prison to create a budget that included the purchase of adequate menstrual hygiene products.137137 This implies that space can be found in prison budgets to buy adequate health supplies. There is also no evidence that states with legislative mandates have seen prison operations suffer under the expense of buying menstrual products. In other words, there are no examples that prison administrations could point to that show that supplying adequate menstrual products constitutes an unreasonable financial burden that would negatively impact the prisoners and staff of the prison.

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.138138

Sufficient menstrual supplies are a tiny fraction of prison budgets, especially when compared to the potential costs related to emergency services.139139 Therefore, the goal of cost-effectiveness would likely be better served by investing in menstrual hygiene supplies. If a prison were to claim that there was another function to denying prisoners necessary hygienic products, their argument is weakened by the fact that several states and the federal government have passed laws recognizing the need to supply adequate menstrual products.140140 Clearly, denying them is not serving an indispensable function in the prison systems of the federal government, almost two dozen states, and the District of Columbia. The defendants would have to explain what differentiates their prison system from those that have legislated for adequate provision of menstrual health products.

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.

A 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.141141

Even within single statutes, like Title IX, courts and administrative bodies have reached disparate decisions on what the term should mean.142142 This certainly gives advocates room to maneuver to a definition that best suits their litigation, but it also means that their success would largely depend on which judge heard their case. It would add a third hurdle to any case: the plaintiffs would first have to convince a court that their definition of sex was a valid one in this context, then show there had been a violation of Equal Protection, and finally demonstrate that the practice did not pass intermediate scrutiny.

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.”143143

When an individual lacks the resources to change their physical characteristics to match their lived identity, dysphoria can lead to serious health consequences ranging from anxiety to an increased risk of self-harm.144144 Litigation that classifies people who may be suffering from dysphoria as “female” when their lived identity is that of a man or a nonbinary person could increase the pain those individuals feel from living in a body that does not feel like their own. In short, this strategy may end up harming the very population it seeks to include. Focusing on the fact of menstruation avoids pushing unwanted labels on people who have already suffered numerous violations of their personal dignity in prison.

At 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.145145

While this certainly does not mean that advocates should abandon Eighth Amendment suits altogether, they should not be seen as a stand-in for a gender inclusive Fourteenth Amendment suit.

The Eighth Amendment establishes that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”146146

Given the substantial physical and mental harm prisoners sustain from insufficient period products, it may seem that such deprivations rise to an Eighth Amendment violation. However, the Supreme Court has interpreted “cruel and unusual” through the lens of an “evolving standard of decency,” which currently translates to “deprivations of the minimal civilized measure of life’s necessities.”147147 To decide what the prevailing standard of decency is, courts often turn to actions taken by state legislatures to see if any sort of consensus is forming about unacceptable conduct or punishments.148148 Given that under half the states have passed any kind of legislation about adequate menstrual supplies,149149 it is unlikely that a court would see a consensus worthy of motivating an expansion of Eighth Amendment protections.150150

In the context of claims related to the conditions of imprisonment, plaintiffs must allege deliberate indifference to prisoner health or safety.151151

In the case of Estelle v. Gamble,152152 for example, a prisoner was forced to work for four months with a back injury and was only treated with pain medication.153153 The Court found this to not rise to the level of an Eighth Amendment violation on the part of the medical professionals because the “inadvertent failure” to provide medical care was not evidence of deliberate indifference.154154

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.155155

While going without period products is humiliating, degrading, unsanitary, and extremely uncomfortable, it would be difficult to argue that it caused immediate physical pain, which is the only type of harm courts have readily recognized in Eighth Amendment cases.156156 To prove to a court that the denial of menstrual products inflicted pain, plaintiffs would likely need to have suffered severe health consequences, like toxic shock syndrome, and be able to show that it stemmed directly from poor period hygiene. For a litigation strategy that seeks to remedy the harm before it creates these kinds of medical issues, reliance on prisoners suffering lifelong health consequences to succeed is clearly counterproductive. Of course, Fourteenth Amendment cases also require that plaintiffs demonstrate they have suffered harm, but the standards are not so high as to require danger to health or safety.

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.

Denial 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.