Professor Elizabeth Cooper, faculty director of the Feerick Center for Social Justice, has co-authored an op-ed, published in Law360, examining the policies for menstrual products to the bar exam and the changes that need to be implemented.
The third week in February marks the biannual ritual of law graduates sitting for the grueling two-day bar exam, a prerequisite to being licensed to practice law that is run by each state’s board of law examiners.
This ritual also marks the boards’ ongoing use of menstruation-related barriers, such as lack of menstrual product and bathroom access, which likely violate the U.S. Constitution and state anti-discrimination laws. Despite urgent requests for reform, the examining boards continue use of their punishing policies.
We, along with others, have been advocating for change.[1] The American Bar Association this week passed a resolution,[2] citing our recommendations,[3] that demands boards of law examiners create a transparent policy that clearly permits examinees to carry their own menstrual products in opaque containers. Our model policy, set forth in our recent article, “Menstrual Dignity for Bar Examinees,” endorses this and proposes additional mechanisms to support dignity for menstruating test-takers.[4]
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Consequently, some examinees placed towels on their seats in case they bleed through their clothing, wore diapers, or pled forgiveness for leaving to use the bathroom.[20] Others actually started or adjusted birth control prescriptions to avoid menstruating during the exam.[21]
This is discrimination on the basis of sex — as menstruation is a basic biological function linked to reproductive organs — which is prohibited by the equal protection clause of the U.S. Constitution and countless state anti-discrimination statutes.