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MENSTRUAL EQUITY, ORGANIZING AND THE
STRUGGLE FOR HUMAN DIGNITY AND GENDER
EQUALITY IN PRISON
AMY FETTIG*
INTRODUCTION
I am a lawyer, and I menstruate. I have menstruated in prisons, jails, courtrooms,
legal visitation rooms, and court reporter offices. I have menstruated during court
hearings, depositions, oral arguments, settlement negotiations, and prison inspections. I
have passed my tampons in clear plastic bags through prison security and waited for
smirking male officers to say something so I could respond forcefully without shame, but
I was secretly embarrassed. I have spent long days in supermax prisons with thousands of
men and wondered where I could find the closest restroom through all the locked security
doors because I had a period emergency. There is a good chance that your worst period
story will never beat mine. But then, we have all survived so much.
This is usually not how I introduce myself, but menstruation is a basic fact in my life
and it has been a part of many of my professional and personal interactions over the
years. Yet, like so many others of my generation and countless generations before mine, I
generally treated my periods as a private matter—somewhat embarrassing, often
inconvenient, but mostly something not to be discussed too openly. I would share a
period story or two with close friends for a laugh and always offer a spare tampon or pad
when asked by a female colleague—but that was pretty much the extent of my social
menstruation action. If pressed, I would have said that periods were a basic biological

*

Amy Fettig, Executive Director of The Sentencing Project, is a human rights lawyer and leading expert on
criminal justice reform. Prior to joining The Sentencing Project, Fettig served as Deputy Director for the
ACLU’s National Prison Project. At the ACLU, she litigated federal class action prison conditions cases
under the Eighth Amendment. Her practice focused on claims regarding medical and mental health care in
prison, solitary confinement, sexual assault in detention settings, and comprehensive reform in juvenile
facilities. Fettig also founded and directed the ACLU’s Stop Solitary campaign seeking to end the practice of
long-term isolation in our nation’s prisons, jails and juvenile detention centers through public policy reform,
legislation, litigation and public education. Fettig served as a leading member of the national coalition
seeking to end the practice of shackling incarcerated pregnant women. Prior to law school, Ms. Fettig worked
with incarcerated and formerly incarcerated women and their families in New York City. She holds a B.A.,
with distinction, Carleton College; a Master’s from Columbia University, School of International and Public
Affairs; and a J.D. from Georgetown University.

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fact that I treated as part of my overall health and the health of women and girls
everywhere.
But I have to confess, that wasn’t the full truth. If it had been, I would have been
attuned to the fact that our society chooses to ignore menstruation or take any
responsibility for it, that misogynistic connotations of women’s long debunked mental
and physical weakness still linger over the fact that we menstruate, and the idea that
menstruation is somehow unclean, unsanitary, and shameful remain woven into how
society talks about or fails to talk about the menstrual cycle. The mere fact that happy,
glowing, pastel-colored tampon advertisements can be seen on television or Instagram
hasn’t changed the cultural reality of silence and stigma around menstruation––or the
fundamental lack of support and dignity that our society offers to people who menstruate.
The full truth about me is that I am a civil rights litigator who represented women
prisoners in class action lawsuits about unconstitutional conditions of confinement for
many years before I started asking them about their periods. I asked them about their
mental health care and medications, I learned about their histories of trauma and abuse,
and the horror of their incarceration experiences. I talked with them about being shackled
during pregnancy, pre-and post-natal care or the lack thereof, access to abortions, and
visits from family. I learned a great deal about use of force and sometimes sexual abuse
perpetrated by officers on incarcerated women. And I also heard a lot about bad food,
filthy showers, and inadequate toothbrushes. But it took me far too long to ask about bad
tampons—or the fact that it’s hard to get a tampon in prison in the first place.
In retrospect, it seems incredible to me that I didn’t start out asking my clients about
periods in prison and no one actually brought them up for such a long time. We were
trapped in the cone of silence and submission around periods that existed and still exists
in too many aspects of our society. This silent submission is now even more incredible to
me after the years I’ve spent hearing the same horror stories of menstrual
mismanagement, deprivation and degradation across prisons, jails, states, and
communities.
Fortunately, the silence is lifting. And the submission is fading away. For too long,
the enormous impacts of menstruation on over half the population during our life cycles
has been largely unaddressed in U.S. law, policy, or public consciousness. But now, the
proverbial floodgates are open and they will not be closed. In the last few years, states
and localities have passed laws to ensure the provision of safe, affordable, or free
menstrual products; tampon taxes have been repealed; and even the infamously
incompetent and misogynistic former President, Donald Trump, signed a law ensuring

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ready access to adequate menstrual hygiene products for incarcerated women in the
federal Bureau of Prisons.1 But we are still at the beginning of this movement for
menstrual equity. The United States remains a country where menstruating is a liability
for all and a weapon and instrument of control used against many, and where equality of
opportunity and dignity for those who bleed is often undermined by law, policy and
practice.2
This Essay takes a look at the movement for social change around menstruation,
especially through the lens of the criminal legal system and prisons and jails in particular.
Part I reviews the issues of period poverty and justice that are driving a larger social
movement to recognize that safe and ready access to menstrual hygiene products should
be framed through a lens of full civic participation in order to understand its full
implications for the lives of people who menstruate. Part II dives into the particular needs
and problems of abuse and control that incarcerated and detained people face related to
menstruation. Part III examines the growing movement to transform menstruation in
America along equity lines that focuses both on the rights of all menstruators while
bringing social pressure to bear on behalf of the most vulnerable—incarcerated people,
the unhoused, students, and those living in poverty—to demand greater governmental and
cultural support for the needs, inclusion, and dignity of all people who menstruate. This
Part particularly takes note of the fact that the menstrual equity movement gains strength
and force when it centers the leadership and voices of people who menstruate as key
players demanding social change and evolution of the culture as a whole. Part IV
examines the importance of the momentum and success this social movement represents
for potential litigation strategies to develop constitutional jurisprudence regarding
incarcerated people and menstrual equity. It observes that the pertinent “evolving
standards of decency” that inform Eighth Amendment jurisprudence must and will be
influenced by the prevailing movement for menstrual equity as a deliberate strategy to
ensure that incarcerated people who menstruate are not left out of the social development
and rights framework that menstrual equity demands. At the same time this evolution in
jurisprudence represent the opportunity for Eighth Amendment jurisprudence—and
constitutional framework generally—to place a greater focus on the need for human
dignity as a cornerstone of the law.

1

See Part III, infra.

2

See Parts I and II, infra.

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I. Moving from Period Poverty to Menstrual Equity
There are roughly two billion people on this planet who menstruate, and worldwide
about 800 million people are menstruating on any given day.3 Of those daily
menstruators, an astonishing 500 million people lack adequate facilities for menstrual
hygiene management.4 But this is not just a problem of the developing world or countries
that lack adequate resources or laws and policies that promote equality for women and
girls. Many of these vulnerable people who menstruate are in the United States, where
our failure to treat menstruation as a public good—whether construed as a basic human
necessity, like food or medicine, or a larger social construct that demands a culture where
all barriers which exclude menstruators from full civic participation are removed—
translates into social harm for all, and especially our most vulnerable people.
On average, a person who menstruates spends about 2,500 days of their life
menstruating, which amounts to nearly seven years of bleeding during an average life
span.5 Dealing with monthly “periods” in our lives is no small thing for myself and my
fellow menstruators—but in this day and age it should not be the economic, social,
cultural, and health burden it remains for most of us.
In order to remove this burden and support full and equal participation in society for
people who menstruate, we need “menstrual equity.” The concept of “menstrual equity,”
first coined by lawyer and advocate Jennifer Weiss-Wolf,6 includes the idea of menstrual
products that are safe and affordable for all. But the concept goes much deeper to root out
the structures that undermine the full participation of people who menstruate in society at
3

Periods Don’t Stop for Pandemics – Neither Will Our Efforts to Bring Save Menstrual Hygiene to Women
and Girls, THE WORLD BANK (May 28, 2020),
https://www.worldbank.org/en/news/feature/2020/05/28/menstrual-hygiene-day2020#:~:text=Every%20day%2C%20some%20800%20million%20women%20and%20girls%20menstruate
[https://perma.cc/FYB6-EW9N]. It is notable that this figure does not include trans-men who also menstruate.
More data, analysis and action are needed to understand the full needs of this population of people who
menstruate and to ensure that those needs are met.
4

Menstrual Hygiene Management Enables Women and Girls to Reach Their Full Potential, THE WORLD
BANK (May 25, 2018), https://www.worldbank.org/en/news/feature/2018/05/25/menstrual-hygienemanagement [https://perma.cc/89D2-DMUX].
5

Steph Black, The Ms. Q&A: Jennifer Weiss-Wolf on What the U.S. Can Learn from Scotland’s Period
Products Law, MS. MAGAZINE (Dec. 7, 2020), https://msmagazine.com/2020/12/07/ms-qa-jennifer-weisswolf-scotland-free-period-products-menstrual-equity/ [https://perma.cc/MUH7-LS69].
6

JENNIFER WEISS-WOLF, PERIODS GONE PUBLIC XVI (2017).

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large.7 Currently, in the United States, menstrual hygiene products are not readily
available and accessible in our places of work, public institutions, or public spaces.8 They
are generally not allowable budgetary expenses for publicly funded schools, shelters, or
crisis and emergency centers and provision is often inconsistent or coercively addressed
in correction facilities and detention centers.9 Indeed, tampons and pads are actually
considered a luxury good in many state tax systems, unlike food or medicine or a variety
of lesser goods such as licorice, donuts, or gun club memberships, so they are subject to
state sales tax.10 Despite these obvious iniquities, in 2020, thirty states still taxed
menstrual hygiene products.11 It is estimated that states actually make an estimated $130
million in tax receipts from our periods.12
This failure to recognize that menstruation is a public good that demands both
material support to maintain the populations’ health and hygiene while at the same time
necessitating social support in order to maximize the full participation of all people in our
society, implicates all of us. But it also demands that we focus on those most vulnerable
to the impacts of menstrual taboos and costs. When we do that, we see that the stigma

7

Id. at XX–XXI.

8

See, e.g., Kaanita Iyer, New Zealand Schools Will Offer Free Menstrual Products. Where Is the US on
Period Equity? Far Behind, Experts Say, USA TODAY (Feb. 19, 2021),
https://www.usatoday.com/story/news/nation/2021/02/19/united-states-period-poverty-free-products-tampontax-new-zealand/6797036002/ [https://perma.cc/YC5G-78VH]; Jennifer Weiss-Wolf, The Fight for
Menstrual Equity Continues in 2021, MARIE CLAIRE (Jan. 27, 2021),
https://www.marieclaire.com/politics/a35280718/menstrual-equity-2021-goals/ [https://perma.cc/6V9CHBJC]; MENSTRUAL EQUITY, ACLU, https://www.aclu.org/report/menstrual-equity [https://perma.cc/P2S8AJTS].
9

ACLU, THE UNEQUAL PRICE OF PERIODS 2–4 (Dec. 2019),
https://www.aclu.org/sites/default/files/field_document/111219-sj-periodequity.pdf [https://perma.cc/KJ8ZRW27].
10

TAX FREE. PERIOD., https://www.taxfreeperiod.com/ [https://perma.cc/A8V7-LYJ2] (Despite progress
towards eliminating the “tampon tax” in several states over the past few years, 30 states still tax menstrual
hygiene products despite the fact that they are life necessities for people who menstruate. Notably, states
exempt items such as gun club memberships (WI), doughnuts (MI), private jet parts (CO), billboard
advertising (AR), and licorice (AZ) but still consider tampons taxable).
11

30 States Still Have Until Tax Day 2021 to Eliminate Their Tampon Tax, TAX FREE. PERIOD. (Apr. 15,
2020), https://www.taxfreeperiod.com/blog-entries/were-demanding-that-30-states-become-tax-free-periodby-tax-day-2021 [https://perma.cc/B8T9-T9AK].
12

Issues, PERIOD EQUITY, https://www.periodequity.org/issues [ https://perma.cc/8WMY-DPM5].

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and discrimination that menstruators face most squarely falls on those least able to defend
themselves in our society and our economy.
Not surprisingly, poverty plays a leading role in determining who pays the greatest
costs for the lack of menstrual equity in our society. Women are the majority of the
people living in poverty in this country.13 They are often responsible not only for their
own economic support, but also for the support of children and families. And tampons
and pads are expensive—most women in America will pay more than $6,000 over the
course of a lifetime for menstrual products.14 For too many, this cost will necessitate a
choice between basic necessities, like food for themselves and their families, and basic
menstrual hygiene. These choices are exacerbated for people in poverty due to the fact
that government programs, such as the Women, Infants, and Children program (WIC)
and Supplemental Nutrition Assistance Program (SNAP) benefits, do not cover menstrual
hygiene products.15 Due to these unsupported needs, too often low-income women report
using products for unhealthily extended amounts of time or being forced to use cloth,
rags, diapers, or paper as a substitute for clean tampons or pads.16 There are obvious
health problems with inadequate menstrual hygiene, including urinary tract infections and
bacterial vaginosis,17 but there are also social costs.
Such social costs are illustrated by the plight of students in our public schools, which
largely fail to provide free and open access to menstrual hygiene products. Many poor
families struggle to provide these basic items, like pads and tampons, to their children.
Indeed, one in five American teenagers lives in poverty, so that lack of menstrual
products can lead to compromised health, loss of classroom time, and lack of social
13

Robin Bleiweis et al., The Basic Facts About Women in Poverty, CTR. FOR AM. PROGRESS (Aug. 3, 2020),
https://www.americanprogress.org/issues/women/reports/2020/08/03/488536/basic-facts-women-poverty/
[https://perma.cc/HH4F-ZRSW] (noting that, according to the most recent U.S. Census Bureau data, of the
38.1 million people living in poverty in 2018 in the United States, fifty-six percent were women.) Notably,
this data pre-dates the coronavirus pandemic, which has created unprecedented and disproportionate
unemployment for women.
14

New Research Reveals How Much the Average Woman Spends per Month on Menstrual Products, SWNS
DIGITAL (Nov. 27, 2019), https://www.swnsdigital.com/2019/11/new-research-reveals-how-much-theaverage-woman-spends-per-month-on-menstrual-products/ [https://perma.cc/EJM7-LKFX].
15

Ashley Rapp & Sidonie Kilpatrick, Changing the Cycle: Period Poverty as a Public Health Crisis, UNIV.
(Feb. 4, 2020), https://sph.umich.edu/pursuit/2020posts/period-poverty.html
[https://perma.cc/H7UP-ZUGQ].
OF MICH., SCH. OF PUB. HEALTH

16

See id.

17

Id.

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interaction.18 Where researchers have actually investigated this problem, girls report
missing school due to lack of access to menstrual products, being forced to use toilet
paper to staunch bleeding, and bleeding through clothes and being forced to leave school
or miss classes as a result. The lifelong consequences of school absenteeism are well
established—they often exacerbate performance gaps that already exist due to poverty
and racism—and they raise the specter of the social disengagement and alienation that
often limit overall chances in adulthood.19
Public schools are not the only government or public institutions that fail to provide
for menstrual equity. The growing problems of housing instability in the United States,
roughly estimated to impact over 500,000 people on any given night in 2019,20 translates
into an urgent need for access to menstrual hygiene products at homeless shelters and
other temporary housing establishments. Lack of access to sanitary products for people
who are experiencing homelessness and the need to secure scarce soap, water, and
laundry facilities at the same time, are a devastating and overlooked factor in housing
instability across America.21 Serious public health concerns are created by this lack of
access to basic hygiene items for people experiencing homelessness—yet this issue
remains largely unaddressed in most states and cities.22
Using a menstrual equity lens in our laws, policies, and practices will allow us to
both expose and solve many of the underlying challenges and problems faced by
vulnerable populations. For too long, the basic fact of menstruation has undermined the
health and possibilities of women, girls and all people who have periods. These are
social, fiscal, and human costs invisible to most of the public and previously too
18

Anna North, Schools Don’t Know How to Handle Girls’ Menstrual Periods and Their Education Is
Suffering Because of It, VOX (May 4, 2018), https://www.vox.com/2018/5/4/17311168/noble-networkcharter-schools-dress-codes-periods-chicago-menstruation [https://perma.cc/VQ4X-YLV5].
19

ACLU, THE UNEQUAL PRICE OF PERIODS 2-3 (Dec. 2019),
https://www.aclu.org/sites/default/files/field_document/111219-sj-periodequity.pdf [https://perma.cc/XNU4JA8U].
20

NAT’L ALLIANCE TO END HOMELESSNESS, THE STATE OF HOMELESSNESS IN AMERICA (2020),
https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness-2020/
[https://perma.cc/T3PK-8SD8].
21

Allegra Parrillo & Edward Feller, Menstrual Hygiene Plight of Homeless Women, a Public Health
Disgrace, R.I. MED. J., Dec. 2017, at 14–15.
22

Liz Farmer, Menstruating While Homeless: An Ignored, Inescapable Issue, GOVERNING (April 2, 2015),
https://www.governing.com/archive/gov-homeless-women-georgia-fells-femme.html
[https://perma.cc/QQZ6-FA3K].

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stigmatized to gain sufficient attention. But this is changing as we hear more and more
from directly impacted people speaking out for change. The call for change is growing,
and the voices supporting it come from some of the most vulnerable and overlooked
menstruators in this country.
II. Addressing the Need for Menstrual Equity in Prisons, Jails, and Detention
Centers
The urgent need to apply a menstrual equity lens to our public institutions and our
larger public agenda is especially acute in prisons, jails, and places of detention, where
the needs of incarcerated and detained women and girls are often overlooked and their
rights frequently undermined as a result. As Adriene Kitcheyan, a woman formerly
incarcerated in the Arizona Department of Corrections, testified to the Arizona legislature
about her experience menstruating behind bars, “[b]loodstained pants, bartering, and
begging for pads and tampons was a regular occurrence.”23
Some of the most overlooked, vulnerable and invisible women in our society are in
prisons and jails. And, yet, their numbers have been growing for decades. In 2019,
approximately 222,455 women were incarcerated in prison or jail. This represents a
700% increase since 1980.24 Although women still represent a relatively small percentage
of the entire incarcerated population in America, the rate of growth of female
imprisonment has actually been twice as high as that of men since 1980.25 Despite this
historic rise, carceral institutions have often failed to address or even consider women’s
unique needs.
One of those obvious needs is menstruation. Yet few states or localities have laws
requiring adequate menstrual hygiene supplies in these institutions. As a result, tampons
and pads in prisons and jails are frequently of poor quality and often insufficient to
provide adequate hygienic protection. Women in federal custody, for example, report that
maxi pads were so thin that they had to wear several at a time to prevent bleeding through
their underwear. People in prison generally have limited numbers of underwear and are
23

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-andstate-prisoners-guarantee-feminine-hygiene-products/ [https://perma.cc/4RWT-R8XY] (explaining that Ms.
Kitcheyan testified before the Arizona legislature in support of H.B. 2222, a bill to ensure free feminine
hygiene products for incarcerated women).
24

THE SENTENCING PROJECT, INCARCERATED WOMEN AND GIRLS 1 (2020) (on file with author).

25

Id.

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only allowed to launder them on certain days, so the degrading prospect of being forced
to walk around in bloody underwear is a real threat.26
The failure to require free and easy access to menstrual hygiene products behind bars
also leads to inadequate supply. A first-of-its-kind, comprehensive study of women’s
reproductive health care in New York State correctional institutions conducted by the
Correctional Association of New York found that over fifty percent of incarcerated
women in the state prisons reported not getting sufficient menstrual supplies each
month.27 Women in other states report similar privation; for example, women in
Michigan report that a unit of thirty people was ordered to share a pack of twelve pads,28
while in an Indiana jail a woman was allowed only four pads and a tampon while she
menstruated for thirty-six hours.29 Similar problems with the supply, distribution and
deprivation of menstrual hygiene products were found by the Inspector General of the
U.S. Department of Justice in its review of the Federal Bureau of Prisons’ management of
women in federal custody.30
This menstrual privation for incarcerated women is enforced on a group of people
who are both vulnerable and incapable of changing their circumstances. The vast
majority of women in prisons and jails are indigent before they are incarcerated, and they
leave behind low-income families in the community.31 While incarcerated, women face

26

See supra note 23.

27

Dani McClain, Women in New York State Prions Don’t Have Enough Sanitary Pads, Not to Mention Other
Daily Indignities, THE NATION (Feb. 13, 2015), https://www.thenation.com/article/archive/women-new-yorkstate-prisons-dont-have-enough-tampons-not-mention-other-daily-indignitie/ [https://perma.cc/P5MNMCJS].
28

Semelbauer v. Muskegon Cnty., No. 1:14-CV-1245, 2015 WL 9906265, at *9–10 (W.D. Mich. Sept. 11,
2015).
29

Lexy Gross, Suit: Clark Jail Denies Women Hygiene Products, COURIER J.
(May 31, 2016), https://www.courier-journal.com/story/news/local/indiana/2016/05/31/suit-clark-jaildenied-woman-hygiene-products/85193988/ [https://perma.cc/4HBH-97YU].
30

See U.S. DEP’T OF JUSTICE, OFF. OF THE INSPECTOR GEN., REV. OF THE FED. BUREAU OF PRISONS’ MGMT. OF
ITS FEMALE INMATE POPULATION 29–30 (Sept. 2018), https://www.oversight.gov/sites/default/files/oigreports/e1805.pdf [https://perma.cc/QQF8-LR5T].
31

Bernadette Rabuy & Daniel Kopf, Prison of Poverty: Uncovering the Pre-incarceration Incomes of the
Imprisoned, PRISON POL’Y INITIATIVE (July 9, 2015), https://www.prisonpolicy.org/reports/income.html
[https://perma.cc/T2ZT-ZG3B]; Beryl Ann Cowan, Incarcerated Women: Poverty, Trauma and Unmet Need,

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many expenses, such as court fees, medical co-pays, and phone calls to children and
family. Paying jobs are not a given in prison; with rare exceptions, prison jobs are unpaid
in Alabama, Arkansas, Florida, Georgia, and Texas.32 Even if they are able to obtain a
paying job while incarcerated, the average daily wage in prison is $3.45, and many
jurisdictions pay less.33 Hourly wages are also telling, while not all states inflict slave
labor like Georgia or Texas, regular prison jobs in Arizona pay an hourly wage from 15
to 50 cents per hour; California is 8 to 37 cents; Illinois, 9 to 90 cents; and Connecticut
13 cents to a dollar per hour.34
In contrast to the artificially low wages in prisons and jails, the costs of basic items
can be astronomical. This includes the cost of menstrual products. In Colorado, for
example, a box of tampons in prison can cost a woman two weeks’ wages.35 In Florida, a
woman in prison may have to pay $4 for four tampons.36 The privation inflicted on
women and girls behind bars when it comes to their periods means that the state extracts
unnecessary cost from women by forcing them to choose between competing goals, such
as paying for medical co-pays so health can be maintained, making costly calls to
children and families in order to build and maintain social ties, and maintaining adequate
health and hygiene with enough pads and tampons to staunch the flow of monthly blood.
The fact that these are stark and routine choices for so many women in detention settings
is appalling.
Sadly, these are not even the greatest risks the lack of menstrual equity inflicts on
women in carceral institutions. Because tampons and pads are not provided in a
consistent and easily accessible way, products are used for too long or in unprescribed
AM. PSYCH. ASS’N (Apr. 2019), https://www.apa.org/pi/ses/resources/indicator/2019/04/incarcerated-women
[https://perma.cc/QP52-XQ5L].
32

Wendy Sawyer, How Much Do Incarcerated People Earn in Each State?, PRISON POL’Y INITIATIVE (Apr.
10, 2017),
https://www.prisonpolicy.org/blog/2017/04/10/wages/#:~:text=The%20average%20of%20the%20minimum,i
n%202001%20to%20%243.45%20today [https://perma.cc/47XY-MN5C].
33

Id.

34

Id.

35

Id.

36

Ben Conarck, Florida Prisons Roll Out More For-Profit Services While Weighing Visitation Cuts, FLA.
TIMES UNION (June 2, 2018), https://www.jacksonville.com/news/20180601/florida-prisons-roll-out-morefor-profit-services-while-weighing-visitation-cuts [https://perma.cc/Z368-HWAV].

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ways as women attempt to adapt to privation. Making homemade tampons out of toilet
paper or folded-up pads is common in women’s institutions. I’ve seen these techniques
demonstrated countless times and even taught a workshop on how to build a prison
tampon with menstrual equity advocates in Washington, D.C. What began as a slightly
startling exercise for the women in my workshop turned into a moment of horror as they
realized the implications of using scavenged materials to staunch the monthly flow of
menstrual blood. Indeed, the necessity of using unhygienic materials and wearing
tampons for too long is a reality for women denied the products they need behind bars.
All of this is degrading and unhygienic, but it is also dangerous, leaving incarcerated
people vulnerable to reproductive tract infections and toxic shock syndrome and
heightened susceptibility to STDs.37
Heightened and unnecessary health risks are a product of menstrual deprivation both
inside and outside carceral institutions, but the dehumanizing power imbalances at play in
places of confinement create even greater risks. Women repeatedly report having to beg
officers for menstrual hygiene products while incarcerated.38 In Delaware prisons, for
example, policy required women to ask officers for sanitary pads, but they were only
allowed up to six pads at a time and no tampons at all.39
This artificial scarcity and the humiliating power imbalance it engenders are a toxic
mixture in an institution where custody and control are already coercive—and often
lacking in proper oversight.40 Sadly, the types of abuse such situations create are
predictable. One high-profile example comes from the Department of Justice’s
investigation of Alabama’s Tutwiler Prison for Women, which found that correctional
officers routinely withheld menstrual hygiene products to coerce women into sex.

37

See supra note 15.

38

Chandra Bozelko, Prisons That Withhold Menstrual Pads Humiliate Women and Violate Basic Human
Rights, THE GUARDIAN (June 12, 2015), https://www.theguardian.com/commentisfree/2015/jun/12/prisonsmenstrual-pads-humiliate-women-violate-rights [https://perma.cc/Y4WC-LLPD].
39

Meredith Newman, Senator Wants State to Provide Free Tampons to Women in Prison, DEL. ONLINE (Apr.
16, 2018), https://www.delawareonline.com/story/news/health/2018/04/16/free-tampons-prison-delawarebill/506203002/ [https://perma.cc/KAQ5-DLAM].
40

See, e.g., Michele Deitch, The Need for Independent Prison Oversight in a Post-PLRA World, 24 FED.
SENT’G REP. 236 (2012); David Fathi, The Challenge of Prison Oversight, 47 AM. CRIM. L. REV. 1453
(2010); Michael Mushlin & Michele Deitch, Opening Up a Closed World: What Constitutes Effective Prison
Oversight?, 30 PACE L. REV. 5 (2010).

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Investigators found that women at the prison were forced to choose between being denied
basic hygiene items for months at a time or being raped by male officers.41
Essentially, government policy in Alabama and other states creates a hierarchy of
control and oppression that promotes safety and security risks for people in institutions
due to a lack of menstrual equity. As Kimberly Haven, a formerly incarcerated woman
from Maryland, put it, “[t]here is no dignity, no humanity, no compassion in a system
that makes a person have to beg, borrow, or even make her own basic hygiene items.
Pads and tampons have become weaponized.”42
Fundamentally undermining the human dignity of people behind bars by
weaponizing menstruation—their basic biological functions—against them is a recurrent
theme for incarcerated people. From being forced to wear bloody clothes to humiliating
strip searches while menstruating, the “normalization” of degradation predictably leads to
massive rights violations perpetrated by institutions. A recent ruling of the U.S. Court of
Appeals for the Seventh Circuit illustrates the type of extreme degradation and
unlawfulness that flourishes in our carceral institutions when basic dignity is denied to
people who are incarcerated. The case, Henry v. Hulett,43 involved a claim made by a
class of women over the violation of Fourth Amendment rights to bodily privacy during
strip searches. During the incident in question, over 200 women prisoners at the Illinois
Department of Corrections Lincoln Correctional Center were subjected to abusive strip
searches by a mix of correctional officers and cadets in a training exercise. During the
strip searches performed by female cadets, male officers and cadets would see the women
as they were strip searched and made demeaning remarks about them, calling the women
“dirty bitches” and making such comments as “[n]o man wants to be with you because
you smell like death,” “[y]our pussy stinks,” “[y]ou all are fucking disgusting,” and “I

41

Letter from Jocelyn Samuels, Acting Assistant Att’y Gen., to Robert Bentley, Gov. of Ala. (Jan. 17, 2014),
https://www.justice.gov/sites/default/files/crt/legacy/2014/01/23/tutwiler_findings_1-17-14.pdf
[https://perma.cc/3MLH-BAWA].
42

Kimberly Haven, Why I’m Fighting for Menstrual Equity in Prison, ACLU (Nov. 8, 2019),
https://www.aclu.org/news/prisoners-rights/why-im-fighting-for-menstrual-equity-in-prison/
[https://perma.cc/56VW-VR2Z].
43

Henry v. Hulett, 969 F.3d 769, 779 (7th Cir. 2020) (explaining that the Fourth Amendment protects a
prisoner’s right to bodily privacy during visual inspections, subject to reasonable intrusions that realties of
incarceration demand, and that “a diminished right to privacy in one’s body, unlike a right to privacy in one’s
property and surroundings, is not fundamentally incompatible with imprisonment and is an expectation of
privacy that society would recognize as reasonable”).

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can’t believe women smell like this.”44 If the women were menstruating, they were
ordered to remove their hygiene products and toss them on the floor and in overflowing
garbage bins in the full view of others. Women were then forced to stand barefoot on the
floor dirty with menstrual blood and other bodily fluids.45 Women did not receive
replacement feminine hygiene products but instead “were left to bleed on themselves for
several hours, soaking through their clothes and getting blood on their legs and feet.”46
The facts of Henry v. Hulett evoke revulsion for their sheer pointless brutality and
routinized inhumanity and misogyny directed at the incarcerated women. The fact that
the case arose from a “training” exercise is notable. But this brutality is not the product of
an isolated incident in Illinois or even an especially brutal corrections system in America.
Instead, it betrays the larger devaluation of women and girls in an institution that often
operates outside the usual constraints of our society—but nonetheless reflects its values.
III. Promoting a Movement for Menstrual Equity Nationwide
Explicitly challenging these values and the misogynist and discriminatory ethos that
supports them in prisons and beyond is the first triumph of the emerging movement for
menstrual equity nationwide. As noted by Jennifer Weiss-Wolf in her seminal work,
Periods Gone Public, “[h]ow can we imagine gender equality without menstrual
equity?”47 This call for equity and equality is a notable departure from the manner in
which most activists in the early twentieth century dealt with menstruation. Those efforts
focused on reclaiming periods as a natural process informed by a scientific and healthfocused approach, but were still concerned with contravening the popular notions of
menstruation as a dirty process designed to rid the body of impurities or “bad blood.”48
Today, advocates seek to go beyond the issues of hygiene and biological process in a
much more public and vocal manner that works to frame menstruation as both a dignity
44

Id. at 775.

45

Id.; see also Matt Clarke, Seventh Circuit Holds Illinois Prisoners Retain Fourth Amendment Rights to
Bodily Privacy, Overruling Circuit Precedents, PRISON LEGAL NEWS (Jan. 1, 2021),
https://www.prisonlegalnews.org/news/2021/jan/1/seventh-circuit-holds-illinois-prisoners-retain-fourthamendment-rights-bodily-privacy-overruling-circuit-precedents/ [https://perma.cc/8VBK-CSJY].
46

Henry, 969 F.3d at 775.

47

See supra note 6, at XI.

48

LARA FREIDENFELDS, THE MODERN PERIOD 38–39 (2009) (discussing the early twentieth century movement
to combine science and health education as part of the public and private narrative around menstruation in
America).

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and a civic participation issue. At the same time, these campaigns continue to focus on
removing the remaining stigma of menstruation by empowering menstruators to speak up
and speak out about their experience in a society that continues to ignore and marginalize
their needs.49
The movement for menstrual equity in the United States focuses broadly on making
safe and affordable menstrual hygiene products available by removing sales tax on those
products known as the “tampon tax,” as well as the provision of free and easily accessible
menstrual hygiene products in public spaces and government institutions such as schools,
jails, prisons, and homeless shelters.50
The fight against the “tampon tax” in the states is the fastest moving part of the
menstrual equity campaign. In 2020, twenty-one states introduced bills to remove the
sales tax on menstrual hygiene products; now, there are twenty states that don’t tax these
products, but thirty that still do.51 Efforts to bring free and accessible menstrual hygiene
products to vulnerable populations and public spaces have not moved as quickly, but
momentum is clear. Thirteen states now mandate free and accessible menstrual hygiene
products in correctional institutions. Six have laws on free access in public schools, and
one mandates such access in shelters.52 Most of these gains were made in just three years
between 2016 and 2019 with the legislative cycle in the states largely consumed by the
COVID-19 pandemic in 2020. Fortunately, in 2021, menstrual equity campaigns are
again moving forward, with twenty bills introduced in nine states by March 2021.53
There is also growing support for menstrual equity among voters. Indeed, polling
research in 2018 by the Justice Action Network found that an overwhelming ninety

49

See, e.g., supra note 6, at 121–55.

50

Notably, other nations are addressing menstrual equity with a broader lens. In 2020, Scotland became the
first nation in the world to mandate that all period products in the country will be free for anyone who needs
them. Li Cohen, Scotland Becomes 1st Country to Make Period Products the Law, CBS NEWS (Nov. 25,
2020), https://www.cbsnews.com/news/free-period-product-scotland/ [https://perma.cc/2E5Z-URGX].
51

See PERIOD EQUITY, http://www.periodequity.org [https://perma.cc/4HRJ-5TU3].

52

See supra note 19, at 7.

53

Jamie McConnell, Updates on Menstrual Equity Policies, WOMEN’S VOICES FOR THE EARTH (Jan. 11,
2021), https://www.womensvoices.org/2021/01/11/period-health-policies-is-your-state-working-to-makemenstrual-equity-a-priority/ [https://perma.cc/4LFL-ZU2U].

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percent of voters across the political spectrum were in favor of providing free menstrual
products in prison.54
Federal legislation is also driving change. Notably, the First Step Act of 2018 ensures
that people incarcerated in federal prisons have adequate access to menstrual hygiene
products.55 Building on this recognition of menstrual hygiene products as a medical
necessity rather than a “luxury” item, the CARES Act of 2020 reclassified menstrual
products as “qualified medical expenses” under the IRS tax code so that they can now be
bought with FSAs and HSAs pre-tax, like other long-eligible expenses such as contact
lens solution and sunscreen.56 Finally, legislation introduced by U.S. Representative
Grace Meng (D-NY), the Menstrual Equity for All Act, requires comprehensive and
expanded support for menstruation, including provisions that require Medicaid to finally
cover menstrual products, the inclusion of menstrual products as part of school budgets,
the mandatory provision of menstrual products for certain employers, and requirements
that states provide menstrual products in correctional institutions in order to receive
federal criminal justice funding.57
The emphasis of these largely legislative campaigns is social equity and a recognition
that vulnerable populations suffer the most in systems of inequality.58 This is notable in
54

Grace Meng, Julissa Ferreras-Copeland & Jennifer Weiss-Wolf, Women Are Finally Winning the Period
Rights Fight, NEWSWEEK (Jan. 25, 2018), https://www.newsweek.com/women-finally-winning-period-rightsfight-790990 [https://perma.cc/7M7Z-QEXQ].
55

P.L. 115-391; see also Anjana Samant, The First Step Act is a Small Step for Incarcerated Women, ACLU
(Dec. 27, 2019), https://www.aclu.org/blog/prisoners-rights/women-prison/first-step-act-small-stepincarceratedwomen#:~:text=The%20First%20Step%20Act%20moves,period%20thereafter%2C%20with%20some%20ex
ceptions [https://perma.cc/2QDS-S6LN].
56

IRS Outlines Changes to Health Care Spending Available Under CARES Act, IRS (June 17, 2020),
https://www.irs.gov/newsroom/irs-outlines-changes-to-health-care-spending-available-under-cares-act
[https://perma.cc/3BFX-MXHM].
57

Menstrual Equity for All Act of 2019, H.R. 1882; see also Press Release, Grace Meng, Member, U.S.
House of Representatives, Meng Unveils Bold Proposal to Provide Menstrual Equity to All, (Mar. 26, 2019),
https://meng.house.gov/media-center/press-releases/meng-unveils-bold-proposal-to-provide-menstrualequity-to-all [https://perma.cc/MHD9-TXHV].
58

See, e.g., Jennifer Weiss-Wolf, U.S. Policymaking to Address Menstruation: Advancing an Equity Agenda,
25 WM. & MARY J. RACE, GENDER & SOC. JUST. 493, 495–501, 505–514 (2019); Jennifer Weiss-Wolf, The
ERA Campaign and Menstrual Equity, 43 N.Y.U REV. L. & SOC. CHANGE 168, 169–173 (2019); Emily
McCarty, Let It Flow! NYC Funds Free Pads and Tampons for All Schools, Jails, and Shelters, BITCH MEDIA
(June 29, 2016), https://www.bitchmedia.org/article/let-it-flow-nyc-funds-free-pads-and-tampons-all-schools-

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the statements of law makers who introduce and support menstrual equity legislation
requiring government to provide free and easy access to menstrual hygiene products. For
example, in a statement proposing New York City’s first-of-its-kind legislation in 2015
providing free menstrual hygiene products in schools, shelters, and jails, New York City
Council member Julissa Ferreras-Copeland stated, “When over half of New York City’s
residents experience menstruation, it is crucial to acknowledge their needs and show
value and respect for their bodies by making menstrual hygiene products widely and
easily available. . . . No student, homeless individual or inmate should have to jump
through hoops, face illness or feel humiliated because they cannot access pads or
tampons.”59
This framing of the menstrual equity movement that centers dignity issues is
increasingly part of the messaging coming from state and local movements that are being
led and driven by directly impacted people. One such example is the Maryland
Reproductive Justice Inside Coalition, which worked for passage of the state’s law
mandating the provision of free and adequate tampons and pads to incarcerated women in
state and local correctional facilities.60 The Coordinator of that coalition, Kim Haven, a
formerly incarcerated woman who personally experienced severe health consequences
from the state’s refusal to provide adequate menstrual hygiene products, spoke
passionately for women on the inside. Part of that campaign featured Ms. Haven
demonstrating exactly how incarcerated women put together homemade prison
tampons.61 Today’s menstrual equity activism uses frank and unapologetic statements to
counter the stigma and shame that silenced discussion of menstruation in earlier times.

jails-and-shelters [https://perma.cc/K2VH-PMMJ]; Melissa Jeltsen, Providing Free Pads and Tampons to
Incarcerated Women Is About More than Hygiene, HUFF. POST (June 23, 2016),
https://www.huffpost.com/entry/new-york-prisons-periods_n_576bfcade4b0b489bb0c901b
[https://perma.cc/6WA7-Z2H7].
59

Melissa Jeltsen, Providing Free Pads and Tampons to Incarcerated Women Is About More than Hygiene,
HUFF. POST (June 23, 2016), https://www.huffpost.com/entry/new-york-prisonsperiods_n_576bfcade4b0b489bb0c901b [https://perma.cc/CM3L-BQQ6].
60

K. Haven, Incarcerated People Deserve the Dignity of Menstrual Equity, MS. (Nov. 15, 2019),
https://msmagazine.com/2019/11/15/incarcerated-people-deserve-the-dignity-of-menstrual-equity/
[https://perma.cc/DLH4-M5EC].
61

See NARAL Pro-Choice Maryland, Turning a Pad into a Tampon, YOUTUBE (Apr. 3, 2018),
https://www.youtube.com/channel/UCPY-Zz3AlpRjHcJWuh3cMkg/videos [https://perma.cc/C572-L4YC].
The author wishes to express her personal thanks to Ms. Haven for coaching her through various tampon
making techniques in prison.

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Dignity and the full civic participation that dignity requires can only be achieved with an
end to shame.
Another example of the type of robust organizing to end menstrual shame and
emphasize dignity as part of state legislative efforts is the #LetItFlow social media
campaign that emerged in Arizona. A menstrual equity bill introduced by Representative
Athena Salman in 2018 was meant to provide adequate and unhampered access to
menstrual hygiene products in state prisons. In introducing the bill, Rep. Salman stated,
“This issue speaks to the basic dignity of being a woman. By denying women additional
pads and no free tampons, that is violating a woman’s dignity and that’s fundamentally
wrong.” In her introduction, the lawmaker further noted that the state’s current policy
allowed for only twelve pads a month—regardless of need—and that incarcerated women
in the state were paid just fifteen cents an hour, so buying a 16-pack of pads from the
prison commissary at $3.20 or a 10-pack of tampons at $2.05 was beyond the means of
most people.62
The bill first had a hearing in front of an all-male legislative committee, during
which the committee chair, Jay Lawrence, expressed his apparent inability to understand
the seriousness of menstrual hygiene and the problems deprivation and the resulting
coercion created in prison settings. He stated, “I’m almost sorry I heard the bill. . . . I
didn’t expect to hear pads and tampons and the problems of periods.”63 Fortunately, not
everyone on the committee reacted in such a puerile fashion, and the bill passed out of
committee 5-4. It then stalled, however, when the Chair of the Rules Committee, Rep.
Thomas “T.J.” Shope, refused to give the bill a hearing, claiming that the Department of
Corrections was voluntarily changing its policy.64 As a result of Rep. Shope’s actions, the
#LetItFlow campaign emerged, with women across Arizona sending tampons and pads to

62

Amir Vera, Why Women in Arizona Are Sending a State Representative Pads and Tampons, CNN (Feb. 13,
2018), https://www.cnn.com/2018/02/13/health/women-pads-arizona-state-representative-trnd/index.html
[https://perma.cc/8NRM-8B7J].
63

Jimmy Jenkins, Pads and Tampons and the Problems with Periods: All-Male Committee Hears Arizona
Bill on Feminine Hygiene Products in Prison, KJJZ (Feb. 5, 2018), https://kjzz.org/content/602963/pads-andtampons-and-problems-periods-all-male-committee-hears-arizona-bill-feminine [https://perma.cc/3G8RUVCE].
64

Amy Held, Arizona Department of Corrections Changes Sanitary Pad Policy Following Backlash, NPR
(Feb. 15, 2018), https://www.npr.org/sections/thetwo-way/2018/02/15/586134335/arizona-department-ofcorrections-changes-sanitary-pad-policy-following-backlash [https://perma.cc/B6RS-AH9Y].

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his office and calling him out—often with pictures of themselves holding menstrual
hygiene products—on Twitter using the #LetItFlow hashtag.65
The outrage and creativity of this effort is a hallmark of the fearless organizing that
has emerged around menstrual equity. But the result is also a cautionary tale. There is
still no menstrual equity law in Arizona. Lawmakers conceded to the reassuring words of
the Department of Corrections rather than establishing a legal right for people who
menstruate to receive adequate hygiene products that are a basic necessity for their health
and dignity. As former counsel for all women incarcerated in state prisons in Arizona in
the case Parsons v. Ryan, which alleges constitutionally inadequate health care and
conditions,66 I can also say that implementation of the menstrual products policy was
spotty at best. Women incarcerated in those facilities continue to face health, hygiene and
dignity problems because there is no law to protect them or hold the prisons accountable
for recognizing their right to menstrual equity.
The growing strength of the menstrual equity movement nationwide is a welcome
sign for increased gender equity and social inclusion for all people in America. Building
and sustaining these state level movements until rights are established and menstrual
equity becomes a basic fact in the culture will be necessary. At the moment, however,
menstrual equity is more about what state or jurisdiction you live in than it is a bedrock
principle of our republic. The Constitution has yet to play a leading role as part of this
movement.
IV. Litigating Menstrual Equity in Prisons and Jails – Evolving Standards of
Decency and Dignity
In a republic, such as the United States, justice by geography is a recurrent
problem—too often rights depend more upon the state or locality you live in than
underlying notions of universal human rights or dignity or indeed the social good. Are
you “lucky” enough to live in a jurisdiction that cares for your rights and well-being, or
are you trapped by birth or circumstance in a place that cares little for you or actively
seeks to undermine your rights and deny you dignity? At present, location remains too
much a factor in the fight for menstrual equity. As discussed in Part III, supra, some
states and jurisdictions are enacting legislation to protect menstruators and ensure that
people who menstruate in public institutions, such as jails, prisons, homeless shelters, or
65
66

Vera, supra note 62.

Case Page, Parsons v. Ryan, ACLU, https://www.aclu.org/cases/parsons-v-ryan [https://perma.cc/HG8DJXTK].

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public schools, have ready access to menstrual hygiene products. Yet the majority still
offer no protection and rights remain patchy at best. This is the scenario in which
litigation, and constitutional challenges in particular, can play a significant role in
ensuring that rights for some become rights for all.
Places of incarceration in particular often need the force of law and constitutional
standards to evolve away from brutal, unjust, and inhumane practices. But what might a
civil rights litigation strategy to support menstrual equity in jails and prisons look like?
The Eighth Amendment to the U.S. Constitution prohibits the infliction of “cruel and
unusual punishment” on prisoners,67 and long-established caselaw makes clear that the
deprivation of prisoners’ “basic human needs,” such as shelter, food, clothing, sanitation,
and hygiene, can violate Eighth Amendment prohibitions.68 It’s clear that menstrual
hygiene is a basic need for all people who menstruate. Similarly, the Eighth Amendment
also requires that prisoners be given adequate medical care for serious medical needs.69
Notably, the Eighth Amendment also protects prisoners from conditions that put them at
serious risk of injury.70 As discussed supra in Parts I and II, there are well-established
and severe health risks for people who are forced to use inadequate, unsanitary products

67

Notably, pretrial detainees in jails have not been convicted of any crime so they are not prisoners. The
Supreme Court established a means for pretrial detainees to challenge conditions of confinement under the
substantive Due Process Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520 (1979).
Although the Bell standard is well-established, courts are not in agreement as to whether the standard is
different than the Eighth Amendment or affords any additional protections. See, e.g. Board v. Farnham, 394
F.3d 469, 478 (7th Cir. 2005) (finding it “convenient and entirely appropriate” to apply the same standard to
claims arising under the Fourteenth Amendment (detainees) and the Eighth Amendment (convicted
prisoners)); Cook v. Sheriff of Monroe County, 402 F.3d 1092, 1115 (11th Cir. 2005) (holding that in regard
to providing pretrial detainees with basic necessities, the minimum standard allowed by the due process
clause is the same as that allowed by the eighth amendment for convicted prisoners); A.M. v. Luzerne County
Juvenile Detention Center, 372 F.3d 572, 584 (3d Cir. 2004) (acknowledging that pretrial detainees claims
are properly analyzed under the Fourteenth Amendment yet indicating that due process obligations with
respect to medical care had not been defined by the Supreme Court and holding that what is clear is that
detainees are entitled to no less protection than a convicted prisoner is entitled to under the Eighth
Amendment); but see Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015) (applying an objective reasonableness
standard for pre-trial detainee’s use of force claim under the Fourteenth Amendment’s Due Process Clause in
contrast to the more onerous subjective standard for convicted prisoners under the Eighth Amendment).
68

See, e.g., Rhodes v. Chapman, 452 U.S. 337, 346 (1981).

69

See, e.g., Estelle v. Gamble, 429 U.S. 97, 103 (1976).

70

See, e.g., Helling v. McKinney, 509 U.S. 25 (1976).

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to deal with menstruation, and these conditions are common in American prisons and
jails.71
Despite the fact that menstrual hygiene would seem to fit squarely within the existing
boundaries of Eighth Amendment jurisprudence as either a basic human need or serious
medical need, very few lawsuits have addressed the denial of menstrual products, and
even fewer have been successful. An older case, Dawson v. Kendrick, out of the federal
district court in West Virginia, did find an unconstitutional denial of hygiene products
including sanitary napkins at a county jail, but without much analysis of the issue.72 More
recently, a federal district court in Michigan found that denying menstrual products to
incarcerated women for up to two days, which caused them to bleed through their clothes
and remain in blood-stained uniforms until the weekly laundry day, was not a violation of
the Eighth Amendment but rather a minor “delay in delivery.”73 In addition to claims
about lack of access to menstrual hygiene products, that case, Semelbauer v. Muskegon
County, included claims related to male officers routinely viewing naked and partially
naked women detainees while they attempted to shower, dress, or use the toilet, and the
jail’s failure to provide women exercise outside their cells.74 This typifies the fact that
where institutions deny women the basic dignity of menstrual hygiene, there is often a
larger context of gender-based oppression and coercion in the institution, as well as other
unconstitutional conditions. The failure to treat people with human dignity is a systemic
problem that manifests itself in all aspects of prison and jail administration; it is rarely
ever a one-off.

71

It should be noted that the legal test for finding a violation of the Eighth Amendment has both an objective
and a subjective component. In order to meet objective requirement a claimant must show that the condition
or conditions being challenged seriously affect health or safety, e.g., that you are being deprived of a basic
human need or exposed to serious harm, as discussed above. The subjective part of the test requires that a
claimant show that the officials being sued acted with “deliberate indifference” meaning that the official
knew of the condition and did not respond in a reasonable manner. This seminal test is set forth in Farmer v.
Brennan, 511 U.S. 825 (1994). In the context of menstrual equity issues, one can imagine demonstrating that
prison officials are aware that their policies and practices related to menstrual hygiene products for
menstruating prisoners were inadequate, putting people at risk, and actually causing harm. Notably,
“deliberate indifference” can be inferred by the very fact that the risk of harm is obvious. Id. at 842.
72

Dawson v. Kendrick, 527 F. Supp. 1252, 1288–89 (S.D.W. Va. 1981).

73

Semelbauer v. Muskegon Cnty., No. 1:14-CV-1245, 2015 WL 9906265, at *9–10 (W.D. Mich. Sept. 11,
2015).
74

Complaint, Semelbauer, No. 1:14-CV-1245 (W.D. Mich Dec. 4, 2014).

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The lack of existing caselaw—or even challenges to the problem of menstrual
hygiene in prisons in jails—is likely in part because of the issue I addressed at the
beginning of this Essay. Simply put, lawyers weren’t asking about this issue until
recently, and incarcerated people weren’t talking about it—at least not to lawyers. It is
also true that litigation on behalf of women in women’s prisons is fairly rare. For
example, as the former Deputy Director of the ACLU’s National Prison Project (NPP),
the only national legal organization that focuses solely on prison litigation, I know that
NPP brought only one class action case against a women’s prison from 2001 to 2020. We
did represent women class members in statewide cases or in units in jails, but these cases
did not tend to focus on women’s particular issues—at least at the outset of the litigation.
This is not an uncommon pattern in prison litigation generally. Litigators have tended to
focus on men’s prisons. Part of this is just a numbers game—there are so many more men
in prison and hence so many more men’s prisons as potential litigation targets.75 But there
is likely more going on here than just numbers. Corrections in the United States is built
by and for men, and the concerns of those institutions reflect the larger society’s
concerns. Menstrual equity, or even the provision of adequate pads or tampons, was not a
concern of prisons or jails or the community at large—until now.
That shift can be seen in the actual result of the Semelbauer case. Despite the district
court’s dismissal of the menstrual hygiene claim, the parties were able to reach a
settlement that included access to menstrual products on a daily basis at the Muskegon
County Jail in addition to addressing other systemic problems.76 It’s pure speculation as
to why this remedy was included in the settlement. Perhaps it was the negative press the
facility received for denying adequate pads and tampons? Or maybe dedication to the
issue on the part of the plaintiffs’ attorneys? Or simple recognition by jail administrators
or community leaders that the practice was inhumane, disgusting, or bad for security?
Perhaps it was a combination of all of these. Regardless of the motivations, the change in
policy and practice in Muskegon County Jail happened against the backdrop of the
growing public recognition that menstrual hygiene and the human dignity issue it
represents must be addressed. This is significant for the law and litigation strategy.

75

Women make up a little over ten percent of the incarcerated and detained population in adult prisons and
jails in the United States. See Danielle Kaeble & Lauren Glaze, Correctional Populations in the United
States, 2015, BUREAU OF JUST. STAT. (Dec. 2016), https://www.bjs.gov/content/pub/pdf/cpus15.pdf
[https://perma.cc/MJL9-6TSJ].
76

Mistreatment of Women at the Muskegon County Jail, ACLU OF MICH.,
https://www.aclumich.org/en/cases/mistreatment-women-muskegon-county-jail [https://perma.cc/K2V49K2B].

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Longstanding precedent establishes that the Eighth Amendment’s prohibition against
cruel and unusual punishment is not static. Rather, its jurisprudence must be informed by
“the evolving standards of decency that mark the progress of a maturing society.”77 These
“evolving standards of decency” are subject to an increasingly sophisticated analysis by
the courts, and the U.S. Supreme Court in particular, which has looked at a number of
objective factors including legislative change, states laws, expert opinions and social
science research, professional standards, geographic isolation of practices, and
international and comparative law.78
The growing movement nationwide, and in particular states, to demand menstrual
equity and pass laws to enforce the availability of safe, affordable, and free menstrual
hygiene products for vulnerable populations like incarcerated people, is certainly a
marker of “evolving standards of decency.” This argues for a litigation strategy that is
tied to local and state organizing for menstrual equity laws and practices, as well as the
larger national movement to expose and promote the need for menstrual equity in our
society writ large.
At the same time, the menstrual equity movement’s emphatic emphasis on concepts
of human dignity for women, girls, and all people who menstruate79 is particularly
pertinent in the context of Eighth Amendment litigation strategy and the rights of
incarcerated people. In the context of prisoner rights jurisprudence, the concept of human
dignity in the Eighth Amendment80 has been used to place limits on punishment, such as

77

Trop v. Dulles, 356 U.S. 86, 101 (1958).

78

See, e.g., Hall v. Florida, 134 S. Ct. 1986, 1993–2000 (2014) (finding Florida law’s restrictive approach to
recognizing an individual’s intellectual disability when seeking execution to be unconstitutional under the
Eighth Amendment in light of both current standards, other state practices, research, and principles and the
court’s independent judgment in order to implement the court’s prior holding in Atkins that people with
intellectual disabilities should not be subject to the death penalty); see also Matthew C. Matusiak et al., The
Progression of “Evolving Standards of Decency” in U.S. Supreme Court Decisions, 39 CRIM. JUST. REV. 253,
260–61 (2014).
79
80

See supra Part III.

The concept of “human dignity” is a surprisingly recent concept in constitutional jurisprudence in this
country. It first emerged as a value relevant to interpreting the Constitution and vindicating individual rights
in the post-World War II era in the wake of the horrors of the Holocaust, the evolution of the international
human rights movement, and the United States’ commitment to the United Nations and the Universal
Declaration of Human Rights. See Benjamin F. Krolikowski, Brown v. Plata: The Struggle to Harmonize
Human Dignity with the Constitution, 33 PACE L. REV. 1255, 1257–68 (2013) (outlining the emergence of
human dignity in Supreme Court jurisprudence in the post-World War II era).

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the death penalty,81 and establish certain affirmative rights for prisoners, such as the right
to medical care.82 In the twenty-first century, the concept of human dignity has perhaps
most strongly been expressed in relation to prisoner rights in Brown v. Plata, a case
dealing directly with the humanitarian consequences of overcrowding and mass
incarceration in California leading to serious harm, death, and degradation of incarcerated
people in the state. 83 In Plata, human dignity received explicit and important emphasis.
Writing for the majority, Justice Anthony Kennedy concluded, “Prisoners retain the
essence of human dignity inherent in all persons. Respect for that dignity animates the
Eighth Amendment prohibition against cruel and unusual punishment.”84
The Court in Plata reasserted the fact that when the state incarcerates people, it
deprives them of their ability to provide basic life necessities to themselves. As a result,
the state’s failure to provide such necessities “may actually produce physical torture or a
lingering death.”85 Importantly, the Court observed that where the state has failed to live
up to its duty to provide for basic human needs, the courts must step in to protect the
rights of incarcerated people.86 The Plata decision both underscores the fact that human
dignity animates the Eighth Amendment and that courts must step in when the
government undermines and endangers that dignity through its acts and omissions.
I do not want to suggest that litigating for menstrual equity rights in carceral settings
is a simple matter or a slam-dunk win. Americans—and by extension the courts—have
repeatedly treated the rights of people deprived of their liberty in prisons and jails as less
worthy of care and respect.87 Indeed, it is hard to imagine that a nation with the world’s
highest incarceration rate—the United States has less than five percent of the world’s
81

Furman v. Georgia, 408 U.S. 238, 258, 270 (1972) (Brennan, J., concurring) (explaining that punishment is
“cruel and unusual” under the Eighth Amendment when “it does not comport with human dignity”).
82

Estelle v. Gamble, 429 U.S. 97, 102 (1976) (noting that the Eighth Amendment “embodies broad and
idealistic concepts of dignity, civilized standards, humanity, and decency . . .”).
83

Brown v. Plata, 131 S.Ct. 1910, 1923 (2011).

84

Id.

85

Id. at 1928.

86

Id. at 1929.

87

See generally Sharon Dolovich, Exclusion and Control in the Carceral State, 16 BERKELEY J. CRIM. L. 259
(2001) (pointing to connections between America’s system of mass incarceration and the general view in
public and legal discourse that prisoners are less worthy of protection and care; essentially that they are
allotted a sub-human status in our society).

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population but incarcerates about twenty percent of the world’s incarcerated people88—
actually embodies human dignity in our law, policy and practice on a consistent basis.
And, certainly, the failure of the courts to protect incarcerated people from the ravages
and mass deaths of the COVID-19 pandemic, despite the many lawsuits brought to force
systems to decarcerate and take appropriate measures to stop the spread of the disease, is
symptomatic of a troubling abdication of responsibility and concern for the health, safety,
and rights of vulnerable populations.89 There are giant hurdles to any litigation strategy
on behalf of incarcerated people.
But the menstrual equity movement provides a possible model for social change and
legal development that both centers the rights of the many—women and girls and all
people who menstruate—with a particular concern and focus on the rights of the uniquely
vulnerable within the larger group, such as incarcerated people, poor youth, and people
without housing. The overlay is recognizing the worth of human dignity and the
government supports necessary to ensure that such dignity can be achieved by everyone.
Pairing this social movement with a social critique and a robust commitment to social
change through legislation, litigation, and activation of the community is how we evolve
to a better standard of decency.

88

Peter Wagner & Wanda Bertram, “What Percent of the U.S. Is Incarcerated” (And Other Ways to Measure
Mass Incarceration), PRISON POL’Y INITIATIVE (Jan. 16, 2020),
https://www.prisonpolicy.org/blog/2020/01/16/percent-incarcerated/ [https://perma.cc/77VP-BUKZ].
89

See generally Roni Caryn Rabin, Vulnerable Inmates Left in Prison as Covid Rages, N.Y. TIMES (Feb. 27,
2021), https://www.nytimes.com/2021/02/27/health/coronavirus-prisons-danbury.html; Andrea Woods,
Federal Judges Are Failing Incarcerated People During the Pandemic, ACLU (Sept. 20, 2020),
https://www.aclu.org/news/criminal-law-reform/federal-judges-are-failing-incarcerated-people-during-thepandemic/ [https://perma.cc/2C7D-BFY7].