Sunday, December 9, 2018

Progress on Providing Dignity to Menstruating Inmates

Prof. Margaret Johnson brings us this piece written with her clinic students from University of Baltimore Law School who worked on the disturbing problem of  women prisoners being denied basic menstruation provisions. The students conducted thorough research.  If any reader would like a copy of the post with footnotes, please contact Margaret Drew, contact information below. Guest authors are Katherine Haladay, J.D. ‘19, Alexis Holiday, J.D. ‘19, Alexis Sisolak, J.D. ‘19, and Makeda Curbeam, J.D. ’19, student attorneys, and Margaret E. Johnson, Professor of Law and Director, Bronfein Family Law Clinic, University of Baltimore School of Law

Since 1978, the Maryland female prison population has increased by more than 300% - a trend that is not localized only to Maryland. In fact, women are the fastest growing segment within the prison population in the United States. Jails, prisons, and other facilities lack in their response to the needs of this changing population. In Maryland, we hear stories of women who desperately need menstrual products. Some women on the inside go as far as making tampons from toilet paper and the insides of panty liners or mattresses. Other women tear up bedsheets to use as pads or choose to decline family visits because they have bled through their uniforms due to a lack of and/or the poor quality of menstrual products. Unfortunately, for one woman, this makeshift product led to toxic shock syndrome and an emergency hysterectomy.

The Bronfein Family Law Clinic at the University of Baltimore School of Law represents clients and engages in community-based projects regarding legal family issues. The Clinic joined the Reproductive Justice Inside (RJI) Coalition, a Maryland-wide project to address the needs of incarcerated individuals seeking quality and timely sexual and reproductive healthcare.

As of February 2018, Maryland did not have a law requiring the provision of menstrual products to those who were incarcerated. As a result, residents of the prisons complained to RJI of product shortages and the prison itself requested that RJI donate products. Due to the need for products in Maryland’s prison and jails, legislators sponsored a bill in the Maryland General Assembly requiring the provision of menstrual products for persons who are incarcerated.

We and other clinic student attorneys jumped into action because the provision of menstrual products is a basic human right for those who menstruate. The student attorneys, in conjunction with RJI and past residents of Maryland prisons, provided both written and oral testimony to the Maryland General Assembly in February 2018 in support of the proposed bill.

In support of our testimony, we conducted a national survey of the fifty states’ and the District of Columbia’s laws regarding menstrual products for persons in correctional facilities. When we first conducted our study in February 2018, we found that only eighteen states had any provision identifying the issue of providing menstrual products to inmates. Of those eighteen states, eleven states required the facility to provide inmates with these products whereas the other seven states did not specify how inmates would access the products; of those eleven, only two specifically required that those products be provided at no cost. Of the eighteen states, nine states required the state to provide menstrual products only upon demand so they were not freely available. Two states provided unspecified access to menstrual products.

The bill unanimously passed the Maryland House and the Senate and on April 24, 2018, Governor Hogan signed the bill into law. As of October 1, 2018, Maryland correctional facilities are required legally to have a written policy and sufficient supply of free menstrual products.

With this new law, Maryland became a leader in the country with this initiative of making menstrual products available, at no cost, and with unfettered access. This fall, the Clinic student attorneys have filed multiple public information act requests with each Maryland county facility to obtain their policies to ensure compliance with this new law. We have also drafted a model policy to provide to the facilities should they need assistance.

As of November 2018, even more states - for a total of twenty - now require the provision of menstrual products to incarcerated persons and they offer even more access to the products than previously. Of those twenty-one states, fifteen states now require that inmates be provided with menstrual products. Seven states now provide menstrual products free of cost as opposed to two.

In the 2017-2018 legislative session on the federal level, The Dignity for Incarcerated Women Act (Senate Bill 1524) would have guaranteed menstrual products to all inmates, as well as other important rights to incarcerated persons, such as outlawing shackling of persons while giving birth. The proposed bill did not make it out of the Senate Judiciary Committee.

Like much legislation, there are areas to improve regarding Maryland’s menstrual products law.  First, while the law is inclusive of transgender men and nonconforming persons who menstruate by calling the products “menstrual hygiene” products and not “feminine” products, it is not inclusive because it requires the provision of products only to female inmates. Therefore, this legislation does not provide access for transgender men or non-binary persons who menstruate. In this way, it differs from the pending federal law.

Second, the legislation does not address the quality of the products. Previously, inmates bled through pads that were previously provided because they were so thin. This could still be the case with the products provided under the new law as it does not specify the product quality. Overall, this legislation is hugely positive – it provides products, both pads and tampons, to incarcerated women. Before, inmates only received pads. The products are now provided free of charge. This is impactful because most women incarcerated have limited economic means and this legislation provides a little bit of dignity and safety to inmates.

Also, the institution must provide the products not only on demand but also provide them at intake and make them freely available. Giving free access to products also addresses the coercion that may exist if an incarcerated person needs to beg for a pad from a correctional officer. Further, the bill requires a policy for proper disposal of the products. This addresses the prior health issues of the lack of a proper way to throw away a used product.

Moreover, this legislation paved the way for other states to provide incarcerated persons with menstrual products – a basic human right for all.

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