Bar Exam Policies On Menstruation Still Fall Short

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Professor Elizabeth Cooper, and co-authors Margaret Johnson and Marcy Karin, examine the policies surrounding menstruating and the bar exam and discuss the changes that have been implemented over the past few years.

In 2020, a vocal social media movement, #bloodybarpocalypse, exploded to highlight long-standing menstruation-related problems connected to the bar exam.[4] That summer, we formed Menstrual Policies and the Bar to research and push back against the disparities in bar exam conditions that menstruating individuals face.

We analyzed the publicly available policies of the National Conference of Bar Examiners and all 56 Boards of Law Examiners, or BOLEs, for three exam administrations; conducted a survey of bar exam test takers; reviewed social media postings; and researched applicable constitutional and statutory discrimination law.[5]

The complete picture revealed a setting in which menstruating individuals — cisgender women, transgender men, and nonbinary, genderqueer and intersex individuals — were placed at a distinct disadvantage compared with their nonmenstruating colleagues.

Although many BOLEs continue to fall short of full equality and persist in employing policies that hinder menstruating individuals’ entry to the profession, others have revised existing rules to create more equal footing on the bar exam.

For example, 23 jurisdictions that have posted their July 2022 bar exam policies now explicitly and transparently address menstruation. This alleviates a huge stress for menstruating test takers, saving them from wasting precious study time tracking down existing policies and facilitating their choosing among multiple potential jurisdictions for the exam.[11]

Twenty-two of these jurisdictions explicitly allow test takers to bring their menstrual products into the exam room. This means they need not worry about being forced to use any ill-fitting BOLE-supplied or makeshift products that could distract them from the exam or cause unnecessary infections. In addition, transgender, nonbinary, genderqueer and intersex test takers need not worry about having access to menstrual products, that BOLEs typically placed solely in women’s restrooms, if they provided them.

Read the full article in Law360.

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