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Prisons at both the state and federal levels routinely deny or severely restrict access to menstrual supplies for those who need them. 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. Muskegon County , 7 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.
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. 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. 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.
