“As a matter of policy, compassion and common sense, most states explicitly exempt ‘necessities of life’ from sales tax, with food and medicine at the top of the list. In some states, necessity exemptions include things such as bingo supplies, cotton candy, erectile dysfunction pills, gun club memberships and tattoos. Menstrual products certainly rank as a necessity for most women, for much of their lives. They are essential for attending school, working and functioning in society.
But as a matter of law, the argument extends far deeper. The tampon tax amounts to sex-based discrimination in violation of the equal protection clause, both under state and federal constitutions — making it more than merely unfair or inequitable, but unconstitutional and therefore illegal.”