On May 23, 2023 the Texas Legislature voted in favor of SB 379—a bill that eliminates the “Tampon Tax” and makes feminine hygiene products (as well as other medical necessities such as adult and child diapers) exempt from sales tax. The bill was signed by Governor Abbott on June 16, 2023 and goes into effect September 1, 2023. Baker Botts trial attorneys Kelly Hanen and Laura McGonagill, along with tax attorneys Ali Andrews and Renn Nielson, represented the Texas Menstrual Equity Coalition—a group of individuals whose mission is to eradicate the tampon tax and end period poverty—in its endeavor to make feminine hygiene products tax-free in Texas.

“We are thrilled with this result,” said trial attorney Laura McGonagill, “it is a great day for women of Texas.” 

Baker Botts was first approached by the Texas Menstrual Coalition in 2020 to determine if there was a legal avenue to eliminate the tampon tax under the current regulations at the time. There was. Baker Botts attorneys filed an administrative proceeding against the Comptroller—a refund claim for sales tax paid for feminine hygiene products—urging that under elementary principles of administrative law, the comptroller’s own regulations already prohibited the taxation of menstrual products. Baker Botts argued that feminine hygiene products should be included under tax-exempt “wound care dressings.” At the time, Comptroller Rule 3.284 defined a wound-care dressing as “an item that absorbs wound drainage, protects healing tissue, maintains a moist or dry wound environment (as appropriate), or prevents bacterial contamination.” On behalf of its client, Baker Botts argued that menstrual products fit that definition to a tee, submitting expert testimony from Dr. John Irwin, an obstetrician and gynecologist and the former chief of surgical service from 2000 to 2016 at the Women’s Hospital of Texas in Houston’s Texas Medical Center, in support. 

The Comptroller denied the refund claim. Baker Botts appealed that decision through all required administrative channels and was prepared to appeal the Comptroller’s decision further by filing suit and taking the case all the way to the Texas Supreme Court if necessary. Instead, the legislature took action and passed legislation to exempt menstrual products from sales tax. “We have no way of knowing if our refund proceeding against the Comptroller and the press coverage surrounding that claim inspired the legislature to act, but we like to think it did,” said trial attorney Kelly Hanen. “The text of SB 379 suggests the legislature heard our arguments,” added tax attorney Ali Andrews—referring to the bill’s clarification of the definition of “wound care dressing.”

Ultimately, the end result is the same for women of Texas—feminine hygiene products are tax exempt beginning September 1, 2023. “This is one of those career-defining cases,” said trial attorney Laura McGonagill, “I’ve never been more proud. It’s an incredible honor to be associated with the Texas Menstrual Equity Coalition and to see all their hard advocacy work pay off.”

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