BENEFITS AND CHALLENGES TO “PERIOD POLICIES” – MENSTRUATING INDIVIDUALS ARE EMPOWERED THROUGH INCLUSIVE DIALOGUE AND ADVOCACY

Despite the progress made since Judy Blume’s watershed novel, Are You There, God? It’s Me, Margaret, the topic of menstruation is still avoided, shamed, stigmatized, and misunderstood. One possibility to advance the rights of menstruating individuals and recognize these cyclical realities is menstrual leave, or “period policies.” The goal of this type of legislation is to address the intersectional indignities of menstrual injustice and normalize periods through more accommodating employment regulations.2 However, the dialogue surrounding these policies has been limited and risks leaving behind individuals who are already excluded from many workplace protections, compounding the discrimination and disparate treatment experienced.

Menstrual stigma has long resulted in exclusion and vulnerability, despite the fact that 800,000,000 people on the planet menstruate on any given day. 3 As COVID-19 disrupts global health care, there is a renewed focus on access to and quality of care for * Stevie Leahy, Assistant Teaching Professor, Northeastern University School of Law. With thanks for her research assistance to Jaclyn Blickley, 2022 Juris Doctorate candidate, Northeastern University School of Law.
vulnerable communities-and these vulnerabilities are increasing under the pandemic. 4 Period policies are one potential tool in a broader set of recommended practices to enhance menstrual equity, a concept that champions societal recognition, without shame or stigma, of the reality of having your period. 5 In the workplace, menstruation-related symptoms result in lost productivity, absenteeism, and a complicated array of tactics to avoid revealing the source of these symptoms. Menstruating individuals are often punished for their periods in the workplace (and at schools, in prisons, through the pink tax, etc.). 6 Advocates argue that period policies render these indignities avoidable and improve the experience within the workplace for menstruating individuals. 7 Yet, further research is needed within the United States to gauge whether period policies actually empower or impede menstruating individuals within the workplacesuch policies have seen uneven success internationally. 8 One company that is frequently cited as employing a progressive period policy is Nike, the U.S.-based sportswear supplier with over 75,000 employees globally. 9 Nike requires subcontractors to follow "local laws," which could include menstrual leave if the local laws have such a requirement. 10 But nowhere in the Code of Conduct does it state that Nike employees qualify for menstrual leave. The company may require compliance with all applicable local laws regarding menstrual leave (if such laws exist), but this type of policy has for the most part not been adopted within the United States. If a company like Nike released an inclusive policy for all menstruating individuals, it would set the stage for others to follow in its footsteps.
With no employer as a clear leader, the U.S. is still grappling with the social, religious, and practical implications of period legislation. As in Blume's tome, religion often plays an intersectional role in the utilization and success (or lack thereof) of period policies, particularly in countries where paternalistic sexism is tied to implementation of period policies. 11 For example, in 2017, Italy introduced a menstrual leave policy that was touted as "a standard-bearer of progress and social sustainability." 12 Yet, critics posit that the law might actually penalize women when they are already struggling to participate in the workforce: employers would be incentivized to hire non-menstruating individuals instead. 13 The legislation stalled. Period policies or laws will not improve working conditions "if women fear that using such leave will disadvantage their prospects of workplace advancement." 14 Finally, and most importantly, the use of menstrual leave policies risks reinforcing stereotypes or increasing disadvantage, especially for individuals with intersecting identities. 15 Most conversations or potential legislation surrounding period policies do not consider individuals who menstruate that are intersex, transgender, gender diverse, or other-these individuals must not be excluded from the protections of such policies, if enacted, and should be included in the dialogue. 16 Critical menstrual scholars note that gender inequality relating to menstruation "is exacerbated for women who are positioned outside of normative constructs of the white, able, middle-class woman." 17 There are serious safety and privacy implications for a menstruating individual within the workplace who is forced to reveal confidential health information that would result in discrimination and even danger in the workplace. 18 The question of whether to employ workplace period policies is layered, and one that has received far too little attention in the past. When scrutinized through an intersectional lens, the analysis becomes even more challenging-but no less urgent. There is insufficient scholarship, dialogue, and consideration of these unique issues, particularly 15 Goldblatt & Steele, supra note 15, at 308-309. , https://ca.finance.yahoo.com/news/2021-finally-achieve-fullmenstrual-202600197.html [https://perma.cc/2943-2B3U] ("At the same time, we owe deeper consideration to those for whom the costs of menstruation go beyond dollars and cents, but also extend to their safetysuch as transgender people, those in police custody, and domestic violence survivors. Many people who need support exist outside the societal safety nets where menstrual products are currently made available. While doing so, activists and lawmakers alike should use gender-neutral language as the default in order to be inclusive of trans and nonbinary individuals when advocating for and advancing menstrual policies.").
17 Goldblatt & Steele,supra note 15,at 309. 18 See, e.g., Johnson, supra note 3, at 27 ("Bleeding while trans comes with a lot of unique challenges that a cisgender person might not think about. For example, it can be difficult to know which bathroom is safe to use while menstruating, or to figure out how to smuggle a tampon into the men's room (and out of, since men's rooms don't have trash receptacles in the stalls) without being outed. We may experience swelling that makes our chests more noticeable, or we may feel forced to interact intimately with our vaginal openings. Both of these experiences can cause dysphoria (anxiety around our body not matching up with our identity). Remember that there isn't a single universal trans or nonbinary menstrual experience."). There have been some signs that employers are thinking critically about their workers' identities and experience. One company in India in 2020 instituted a policy of ten days of period leave for all menstruating individuals, including gender diverse employees. Alex Bollinger, Company Gives Transgender People 10 Days of "Period Leave" to Menstruate, LGBTQ NATION (Aug. 11, 2020), https://www.lgbtqnation.com/2020/08/company-gives-transgender-people-10-days-period-leave-menstruate/ [https://perma.cc/AH75-JE7V].
with respect to gender diverse individuals. 19 As the conversation on period policies continues, it must be reframed to allow for not only an accounting of menstruation broadly, but also the intersecting ways in which an individual can experience menstruation in the workplace. 20 The current pandemic has magnified the discrepancies present in healthcare in terms of quality and access. Hopefully, in turn, the country will show more willingness to take action to increase support and protections in the workplace, which might catalyze dialogue that is inclusive of all menstruating individuals. 21