August 27th, 2020
By: Megan Hakopian
Bar exam takers this year are facing uncertainty in many different ways. All over the country, students will be or have sat in their rooms, or in large convention rooms to take an exam they have been prepping for, for over three years. Some states like New Jersey and Florida announced an online bar exam in lieu of traditional testing that otherwise would require hundreds or thousands of people to crowd into enclosed spaces for several hours a day over a two-day period. States like Oregon and Utah have given recent grads “diploma privilege” allowing all recent grads to practice without passing the bar exam, and states like New York just “axed its test just seven weeks before the big day, with no plans for an alternate test administration. Other states, including those where COVID-19 infection rates continue to rise, are going full-speed ahead with plans to administer in-person tests later this month.”
Strange news comes out of the state of West Virginia stating that, “Test takers there may not bring tampons, pads or other menstrual products into the exam. Instead the bar examiners say that they will provide “feminine products” to candidates. Arizona had a similar policy, but wisely walked that back just a few days after a minor social media eruption.” West Virginia and Texas must adopt the same attitude.
The adoption of rules such as these are in direct violation of what the law stands for. State Boards of Bar examiners themselves should, the very gatekeepers of the law must be in the business of upholding it and ensuring that the policies that are adopted reflect their highest principles. These bans on menstrual hygiene products are a form of gender bias that must be eliminated and are inconsistent with the legal profession’s direct duty to provide equality for all.
These policies arguably violate equal protection acts. Just as Justice Scalia wrote in Bray v. Alexandria Women’s Health Clinic that, “A tax on wearing yarmulkes is a tax on Jews,” menstruation and the associated need for menstrual products is a proxy for female sex. Menstruation is a regular and unavoidable occurrence in the lives of approximately half the population (and slightly more than half of all recent law graduates) from, on average, the ages of 13 to 51. By not allowing test-takers to bring their own products, bar examiners put at a disadvantage those who are menstruating during the exam. There is no exceedingly persuasive justification for this type of sex-based classification. The failure to include menstrual products on lists of items permitted at the bar exam may not be the result of a secret discriminatory plot to keep the legal profession male. But the policy is the product of a culture that alternately ignores menstruation or treats it as something suspicious, dirty and secretive.”
Fordham Law School’s Faculty Director, Elizabeth Cooper stated: “Distrust of people who menstruate needs to stop. For too long, menstruation has been an after-thought or something to be ignored and hidden. This long-standing taboo against those who bleed monthly results in cruel policies and practices. For example, decisionmakers have allegedly fired employees who leak during their cycle. People who are incarcerated have worn blood-stained clothing because they do not have free access to appropriate menstrual products. Students have been denied necessary bathroom breaks or have had to use code names for menstrual products. And it means 30+ states continue to charge an unconstitutional sales tax despite a nationwide campaign against taxing menstrual products. The distrust of menstruators is front and center with the July bar exams that take place next week, and those that follow. The multi-day bar exam is the legal licensing requirement needed to practice law and is understandably extremely stressful. Imagine adding to this pressure a ban on bringing in one’s own menstrual products or uncertainty about the ability to do so because a state does not expressly or publicly disclose if they are permitted. Outraged over state bars’ menstrual products restrictions, people started exchanging the information on Twitter. Many people taking bar exams in the coming months—women, transgender men, and nonbinary persons—will be menstruating. It is critical that they have access to their own menstrual products. Menstrual products are not “one size fits all.” Persons who menstruate require different sizes and levels of absorbency in their products to best fit their body and menstrual flow. This is why products come in different sizes and absorbency levels. Use of the wrong size can lead to everything from pain and discomfort to toxic shock syndrome (if too large) and time-consuming, disruptive leaks (if too small). Further, some individuals require hypoallergenic products to protect against allergic reactions. If not provided, applicants may experience vaginal itching or other problems caused by inserting allergen-containing tampons or pads inside or adjacent to their bodies.”
This type of inequality has no place in society, especially in the legal world. We will not tolerate this especially for future generations of lawyers. I urge all states who are considering making these products inaccessible during this test to rethink their strategy. As gatekeepers of the law, you must work stronger to protect everyone that the law serves.