Baker Botts Fights ‘Tampon Tax’ Imposed by Texas Comptroller

A Sugar Land woman and an organization calling itself the Texas Menstrual Equity Coalition are challenging the Texas comptroller’s interpretation that permits sales taxes to be collected on feminine-health products like tampons.

In a letter requesting a tax refund, sent more than a year ago to the comptroller, Baker Botts partner Meghan Dawson McElvy, on behalf of Sahar Punjwani of Sugar Land and the coalition, offered sales receipts from two Houston-area stores to argue that feminine-hygiene products were subject to state sales tax but comparable male-only products – and even a libido-enhancer – are not.

This policy, McElvy wrote, “favors the male sex drive and organs over the management of female menstruation. The current tax scheme suggests that the state of Texas, through the Comptroller, views over-the-counter libido enhancers as a higher medical priority than tampons.”

McElvy could not be reached for comment. But Laura Shoemaker McGonagill, a Baker Botts associate, said the comptroller denied the refund request in February. McGonagill said the firm, representing Punjwani and the coalition pro bono, will file an administrative appeal Friday to Comptroller Glenn Hager. If that’s denied, McGonagill said, the next recourse would be suing the comptroller in Travis County district court.

The comptroller’s office said pending sales-tax refund claims are confidential by statute so it would have no comment. But the comptroller’s spokesman did not answer a follow-up question, whether taxing feminine-hygiene products and not gender-neutral “wound care products” discriminates against women.

The comptroller’s failure to apply its rules to grant feminine-hygiene products tax-exempt status “constitutes impermissible gender-based discrimination” because only women use menstrual products,” McElvyt wrote. In seeking Punjwani‘s refund, McElvy noted that the comptroller’s rules exempt “wound-care dressings” like gauze and adhesive bandages but not such feminine-hygiene products that meet the same definition.

Staff reporter Bruce Tomaso contributed to this story.