Menstrual Equity in the Criminal Legal System

Abstract

Background:

Menstrual equity, that is, access to menstrual products and safe menstruating environments, is a basic human right not available to many vulnerable populations.

Methods:

We conducted a cross-sectional survey with a convenience sample of women involved in the criminal legal system to document experiences with access to hygiene and menstrual products while incarcerated.

Results:

Of the 156 respondents, 62.6% had to trade or barter to receive even basic hygiene products such as soap or shampoo; food and personal favors were used as the common currency. More than half (53.8%) received less than five menstrual products at intake/initial processing; 29.5% had to trade or barter menstrual hygiene products. Almost one-quarter (23.1%) suffered negative health consequences from prolonged use of products because of limited supply.

Discussion:

Findings document the lack of menstrual equity among women involved in the criminal legal system. Assuring the human right of menstrual equity in this population requires changes at the legal, the policy, the institutional, and the individual level.

Introduction

Achieving access to menstrual products and creating menstruating environments that are safe and free of stigma—otherwise known as “menstrual equity”—is an essential human right.¹ Menstruation is a defining physiological process impacting girls, women, and trans men around the world, with about 800 million people menstruating on any given single day.² The availability and use of products to capture the flow of blood from this naturally occurring physiological process—also known as menstrual hygiene management—varies around the world and is impacted by cultural practices, socioeconomic status, health literacy, and local environment.³

Specifically, menstrual hygiene is defined as the availability of “clean menstrual management material to absorb or collect blood that can be changed in privacy as often as necessary for the duration of the menstruation period, using soap and water for washing the body as required, and having access to facilities to dispose of used menstrual management materials.”⁴ Unfortunately, menstrual hygiene remains a frequently overlooked issue and its related needs are often not met.¹ In fact, among the people who menstruate daily, about 500 million lack adequate safety, support, and access to products and facilities for self-management.² A recent survey of low-income community-based women found that nearly two-thirds (64%) were unable to afford needed menstrual hygiene supplies during the previous year.⁵

Many of the women had used alternative solutions, cloth, rags, tissues, or toilet paper; some even used children's diapers or paper towels taken from public bathrooms.⁵ Nearly half (46%) could not afford to buy both food and menstrual hygiene products during the past year.⁵ A second study conducted with women receiving substance use disorder treatment found unmet menstrual hygiene needs to be common, despite having regular interactions with health care professionals.⁶ A third study on this topic with migrant women at the Brazilian–Venezuelan border found that 36% of the 177 surveyed felt that the menstrual hygiene products provided by humanitarian organizations were not enough for their needs.⁷

In the carceral system, that is, in jails and prisons, menstruators are frequently made more vulnerable and invisible, subjected to multiple humiliating practices to remind them of the lack of control over their bodies.² Firsthand accounts of incarcerated people describe additional layers of humiliation and indignities when managing their menstrual cycles through the additional barrier of the officers; one account states “Even though keeping inmates clean would seem to be in the prison's self-interest, prisons control their wards by keeping sanitation just out of reach. Stains on clothes seep into self-esteem …crystalliz[-ing] the power differential between inmates and guards.”⁸

Another account describes how the system sees “women and girls as correctional afterthoughts,” sharing that she created homemade tampons, refusing to beg the officers for products, but ended up needing a hysterectomy upon release.⁹ Tampons and pads are often sold to incarcerated people at inflated prices and are of poor quality, without wings or adhesives, falling out in public settings.⁹ A comprehensive study in New York state carceral institutions found that greater than 50% of incarcerated people in state prisons reported not getting sufficient menstrual supplies monthly, poor-quality and high-cost products, and coercion and control by prison officers.² Menstrual health and hygiene management is a basic human right that continues to be undermined by the policies and practices of the carceral institutions.

There is varying legal response addressing menstrual equity in the carceral system, which is largely due to the lack of a legal precedent ensuring access to menstrual products and menstrual safety paralleling existing frameworks for food, water, and basic hygiene needs.¹⁰ The First Step Act of 2018 federal legislation attempted to lead to the end of shackling pregnant women and remove restrictions on access to menstrual hygiene products. For those who are incarcerated in federal prisons, the Federal Bureau of Prisons (BOP) now must provide sanitary napkins and tampons at no charge.

As of 2018, 12 state and local jurisdictions have introduced or passed legislation to provide free menstrual products to this population, but only four states and NYC have passed legislation that actual give access to such products. Unfortunately, there are still problems in distribution, delays in getting these products and a lack of access to free tampons. Kansas, the site of this study, has no legislation targeting menstrual hygiene care for the incarcerated population. It is this physical and cultural invisibility of the menstrual cycle that leads to its absence from human rights declarations and policies despite being integral to climate justice, carceral justice, and human dignity.

This study aims to highlight the need for legal and health policy changes at all levels to ensure this basic human right to all menstruators. This study is an exploratory research project to provide a baseline of menstrual health and hygiene practices and experiences for incarcerated menstruators, from which advocacy around both menstrual hygiene and equity for women confined in the criminal legal system can be developed. Of note, terminology in the field of menstrual hygiene management is evolving, with terms such as “menstruators” to represent all people who menstruate and replacing terms such as “hygiene,” which biases menstrual health toward a sense of uncleanliness and shame, with terms such as “menstrual equity” that address the systemic problem in these institutions.² This article will aim to use these terms going forward.

Methods

This study was a secondary data analysis of baseline data collected between 2020 and 2022 as part of a web-based literacy intervention focused on cervical, breast, sexually transmitted infection, and reproductive goal planning (www.shewomen.org).

Sample derivation

We used respondent-driven sampling (RDS), with information about the study e-mailed to participants in the original intervention and posted on the study's Facebook page.

The parent study (shewomen.org) was designed to recruit women as they were leaving Kansas City jails with community delivery of a web-based health literacy intervention. Although our goal was to recruit from three women's facilities in the Kansas City metropolitan area, we did not exclude participants who enrolled but did not identify as women (N = 1). Recruitment in jails, however, occurred just as the SARS-CoV-2 pandemic was emerging, along with the March 2020 lockdowns in the United States. Thus, we were no longer able to effectively advertise the study in jails in person, and recruitment efforts posed a challenge. We then employed RDS, and our first participant was the result of a referral from another ongoing cohort study of women with criminal legal system involvement in November 2020. In total, there were 13 original seeds that were not referrals from within our current study: 7 referrals came from the other ongoing cohort study, 4 from community outreach organizations, 1 from the public library, and 1 from a county jail.

The biggest RDS yield, which has led to almost 300 women enrolled, was jump started by one participant referred by an original seed from the ongoing cohort study, who in early December 2020 not only posted the study contact information on a group carceral facility Facebook page but recommended it as well. At least 80% of the referrals to the program have been generated from that initial post that led to 39 direct respondents. Even though those who referred participants were compensated for the first five referrals at $10 per referral, several participants referred more than five.

Anywhere from 6 to 12 referrals were enrolled from five separate participants. Currently, we have received referrals that were removed as much as 11 seeds from the original seed referral. This has resulted in a baseline sample for this article of N = 235. The total recruitment goal for the intervention was 260 participants, which is aligned with power calculations to detect intervention effect and account for attrition. But for the present descriptive article, we are reporting on the current participants. Unfortunately, length of incarceration and other environmental confounders were not included in the demographic data collection.

Instruments/data management

For this study, we used 26 items adapted from a menstrual hygiene study conducted in Missouri state prisons.¹¹ Data were collected in Red Cap and transferred to SAS 9.4 statistical program.¹² Descriptive statistics were generated. Permission to conduct the study was provided by the Institutional Review Board of the University of Kansas Medical Center. All participants provided informed consent.

Results

Of the 235 respondents, 156 (66.4%) had periods and were included in the analysis. The average age of respondents was 34.8 (standard deviation [SD] = 9.3), 109 (66.9%) were White, 132 (84.6%) had at least a high school education, and 93 (59.6%) had health insurance before incarceration.

While incarcerated, ∼80% (n = 125) of respondents had to purchase basic hygiene products such as soap or shampoo, and 97 (62.6%) needed to trade or barter to meet their needs (Table 1). Out of those 97 who had to trade, food was the most common currency as 77 (79.4%) using food as a barter item, followed by exchanging hygiene items (44.3%), and personal favors (21.6%).

Table 1.

Frequency of Responses to Hygiene Questions (n = 156)

Question	Response
	n	%
Had purchase basic hygiene products (n = 156)	125	80.1
Have to trade/bartered basic hygiene products (i.e., soap, shampoo) (n = 97)	97	62.2
Trade/bartered fooda	77	79.4
Trade/bartered hygiene itemsa	43	44.3
Trade/bartered personal favorsa	21	21.6
No access to basic hygiene products at last incarceration (n = 156)
Soap	14	9.0
Toothpaste	18	11.5
Shampoo	26	16.7
Deodorant	36	23.1
Have to purchase menstrual hygiene products (n = 156)	58	37.2
Have to trade/bartered menstrual hygiene products (n = 46)	46	29.5
Trade/bartered fooda	43	93.5
Trade/bartered hygiene itemsa	29	63.0
Trade/bartered personal favorsa	14	30.4
Products used during menstruation while incarcerateda (n = 156)
Pads	129	82.7
Tampons	85	54.5
Disposable underwear	15	9.6
Homemade products	66	42.3
Menstrual products received at intake (n = 156)
<5	84	53.8
6–10	25	16.0
11–20	14	8.9
>20	11	7.1
Did not have enough menstrual products when needed (n = 156)	84	53.8
Also used to control bleeding (n = 156)
Rags	12	7.7
Other clothing	7	4.5
Toilet paper	55	35.3
Paper towels	16	10.3
Other	14	8.9
Used menstrual products for longer than wanted (n = 156)	75	48.1
Had negative health outcomes for longer use of menstrual products (n = 156)	36	23.1
Had to give up activities because of inadequate menstrual supplies (n = 156)	38	24.4

^a Questions were only posted to those who answered Yes when asked if they have to trade/barter basic/menstrual hygiene products.

At intake/initial processing, 84 (53.8%) of respondents received <5 menstrual products and only 11 (7.1%) received >20 items. More than one-third of respondents (37.2%) indicated the need to purchase more menstrual products because they did not have enough during the time of incarceration; 46 (29.5%) said they had to trade or barter to get any menstrual products. Out of the 46 who had to trade, food was the main resource in trading, used by 43 (93.5%); 29 (63.0%) traded with other hygiene products, and 14 (30.4%) bartered personal favors.

Whereas regular menstrual hygiene products such as pads (82.7%) and tampons (54.5%) were used by many respondents, 66 (42.3%) also needed to use homemade products. Toilet paper was the most common solution for adjunct bleeding management used by 55 (35.3%); paper towels (10.3%) and rags (7.7%) were other alternatives. Almost half (48.1%) of respondents had to prolong the use of a product because of limited supply, with 36 (23.1%) suffering negative health consequences from prolonged use and 38 (24.4%) having to give up activities because of this inadequacy.

Discussion

These results of unmet needs of menstrual hygiene, which found that more than half of the menstruators surveyed had inadequate menstrual products, are similar to those of the few other studies conducted with vulnerable populations.

In the free community, inadequate access to menstrual products impacts the daily lives of menstruators, especially in low- and middle-income countries, preventing them from going to school or work. Unique within the carceral system, however, is the artificial scarcity created to preserve the power hierarchy. Especially concerning is the reality that many respondents had to use adjunct methods, such as toilet paper and rags, for bleeding management and overused their products at risk of their personal health.

Respondents also described the bartering system—of personal favors, food, and other hygiene items—for products, which clearly violates basic human rights and dignity. Several firsthand accounts of managing menses in the carceral system echo these statistics, raising concern for the weaponization of menstruation and normalization of degradation facing incarcerated people.² This discriminatory ethos further brutalizes incarcerated people, inadvertently revealing a larger systemic devaluation of menstruating people that needs to be immediately addressed.

Limitations of this study include a lack of knowledge about where respondents were incarcerated, a sample with limited heterogeneity, and an incomplete survey. The survey did not include specific questions on the quality of menstrual supplies, such as the thickness or the composition of pads. The survey also did not include questions on institutional accommodations to increased laundry access or increased supplies for people suffering from conditions causing heavier bleeding, such as a miscarriage, perimenopause, or fibroids. Further studies should include qualitative interviews to further clarify our preliminary survey results and include random sampling across multiple carceral systems for increased generalizability of the results. However, findings identify a clear need for a population currently being denied their basic human rights. Both the population of women in the criminal legal system and the topic of menstrual equity are understudied.

Implications for practice and policy

This exploratory study highlights how inadequate and inequitable access to menstrual products can carry important clinical implications and emphasizes existing gaps in serving equitable carceral clinical care. The scarcity of basic necessities, particularly those related to menstruation, and dependence on others for access to these necessities noted in this study have the potential to serve as a trigger for the traumatization of incarcerated menstruators.^13,14 For nonbinary or trans people, managing menstruation further reinforces cis-normativity and physical reminders of a bodily function they may or may not identify with; offering safe ways for transgender and nonbinary folks to access menstrual products in the prison system ensures protection and improves mental and emotional health.¹⁵ The taboos, stigma, and lack of knowledge on the diversity of menstrual experiences compounds ongoing emotional trauma.

The lack of access to menstrual products noted in our study can lead to physical health consequences. Wearing a tampon for longer than the recommended duration or using unclean materials in or near the vagina to absorb menstrual blood increases risk for intravaginal dysbiosis, infection, and toxic shock syndrome.^16,17 Extended use of menstrual pads beyond the recommended duration frequently results in vulvar irritation or fungal infection.^16,17 When menstrual products are withheld, some menstruators may also experience exacerbation of the physical and emotional symptoms associated with menses.¹⁸

The severe health risks taken on by incarcerated menstruators to avoid the additional emotional trauma of asking for subpar menstrual products is a violation of the United Nations Declaration of Basic Principles for Treatment of Prisoners and a clear example of gendered discrimination.^9,19 Forcing incarcerated people who menstruate to make impossible choices between their autonomy and basic human needs is akin to violating the basic principles for the treatment of prisoners. Therefore, if access to food, clean sanitation, safety, and water is considered an inviolable human right, so too is access to the correct amount of quality menstrual products, acquired without gendered power plays, and utilized in safe environments.¹⁰ Addressing this human rights violation requires multiple changes at varying levels of the system.

At the systemic level, the Eighth Amendment (or the 14th Amendment for pretrial detainees) of the U.S. constitution requires prisons to provide for prisoners' basic hygiene needs.²⁰ However, although courts often dismiss lack of access as the rare inconveniences of a complex system, a few cases have been successfully upheld as a violation of a constitutional right and have led to menstrual equity policies in the carceral system.²⁰ The American Civil Liberties Union reports that only 15 states have any laws mandating access to menstrual products in at least one of three types of institutions (correctional facilities, schools, or shelters); the need for more legislation is painfully apparent.²⁰

At the institutional or prison level, educating correctional officers on menstrual experiences and needs, with prison expectations on unrestricted access enforced, will reduce the emotional trauma at the individual level.

At the individual level, bringing this previously hidden human right to light means talking about menstrual experiences and diversity of these experiences—with providers, with officers, and with incarcerated people.

This study hopefully highlights the ongoing needs of a community to serve as a foundation for future advocacy.

Conclusion

Our findings provide an initial view of the dearth of menstrual equity in the criminal legal system. Addressing this human rights violation requires multilevel change by a broad coalition of stakeholders.

Authors' Contributions

All authors contributed to the initial ideas, formulation of outline, discussion of issues to be included, and review of final document.

Author Disclosure Statement

The authors declare that they have no conflict of interest in their publication of this article.

Funding Information

Data collection was supported by funding from the National Institutes of Health/National Cancer Institute, grant 2R01CA181047 “Sexual health empowerment for jail-involved women's health literacy and prevention” to Megha Ramaswamy, PI.