Addressing Gender Equality: Prison Feminine Hygiene Reform

I. Introduction 

The modern world is designed for men, not for women. Gender inequality continues to saturate our everyday lives, manifesting in countless aspects. At an initial glance, it may be difficult to recognize the impact of such gender disparities. However, upon closer examination, these disparities reveal how a lack of gender equality affects the outcomes in different situations. For instance, car crash tests are performed by using dummies with the body structure of an average male,1 overlooking how a crash could hypothetically affect a female in similar crash scenarios. This oversight can potentially pose a danger to women, as safety measures and standards might not adequately reflect physiological differences. Examples like these reflect and reveal the underlying gender disparities in our society, laying the groundwork for pressing issues that often go unnoticed. 

A commonly overlooked example of gender inequality is that which occurs in New York state prisons, primarily with limited feminine hygiene access. To truly encourage change in gender inequality, it is essential to look at our most marginalized groups, one of which is female prisoners. Female prisoners face unique challenges, including inadequate access to resources, and arguably, one of the most significant issues within the New York State women’s prison system is inadequate access to feminine hygiene products. This scarcity leads to inhumane conditions such as being forced to beg for pads or create unsafe substitute products, often made from unhygienic makeshift materials found in prison, as well as increased chances of developing diseases and health conditions. Inadequate care in female prisons is an issue of fundamental human rights; in advocating for female inmates, we can move our society one step closer to achieving gender equality. Additionally, this inadequacy violates the Equal Protection Clause of the 14th Amendment which ensures that people are not provided lesser protections due to certain characteristics such as race, nationality, and gender.2 Therefore, to comply with the US Constitution, new gender-responsive regulations must be instituted and enforced to both prevent unsafe and unfair conditions for incarcerated women and reform training programs for correctional officers. 

II. Gender Inequality in the New York Prison System

Limited resources already exacerbate the unfair treatment of women who are “often without equal access to treatment, programs, or services.”3 In most jurisdictions, incarcerated women are offered fewer rehabilitation programs and social services than incarcerated men. For example, only two women's prisons in eastern states like New York offer a parenting program that is available in twenty-seven men's prisons in the state.4 In the program, men are given video equipment to record messages for their families, while women are only allowed to use audio equipment. In many US prisons, men enjoy more freedoms than women, even in areas of personal expression such as haircuts, as they are allowed to “sign up for buzz cuts, while [women have] to trim each other’s hair with toenail clippers.” 5

With increasing levels of female incarceration6 and little available data on why women are jailed, there is a broader systemic neglect of gender considerations in the prison system.7 Since the majority of US inmates have historically been male,8 the government responded to increasing female incarceration by simply placing them in existing systems for men. Therefore, it is not surprising that prison reforms do not take women's lives and well-being into account when effectively managing male and female inmates requires different gender-specific considerations.

III. Analysis of Opposing Perspectives

Critics believe that further gender reform in prisons is unnecessary since New York State has passed legislation that requires jails and prisons to provide menstrual products to inmates. Specifically, Senate Bill S8821A regarding feminine hygiene products in prisons was instituted in 2018, stating that “feminine hygiene products… shall be provided at no cost to individuals housed in state and local correctional facilities.”9 However, this view neglects an important aspect of the bill that it does not ensure enforcement or the frequency at which inmates are given menstrual supplies. Senate Bill S8821A has not lowered the number of women in New York prisons struggling to obtain feminine hygiene products but only increased the amount of menstrual products available within those facilities. Although feminine products are available, “access to period supplies is still a widespread problem – partly because some facilities aren’t consistently complying with laws.”10 Some male guards may simply not understand the necessary frequency of providing these supplies, while others may be using their power as a point of leverage against female inmates. This results in degrading, inhumane treatment such as “making prisoners beg to get enough menstrual supplies… or letting people bleed for months instead of providing basic reproductive health care.”11

Other critics state that they either don’t view feminine hygiene products as a necessity or believe that inmates deserve such treatment as part of their punishment. For instance, former Maine Representative Richard Pickett stated, “Quite frankly, and I don’t mean this in any disrespect, the jail system and the correctional system was never meant to be a country club.”12 Viewpoints like this show the disregard for basic human rights and willful ignorance of some lawmakers as they seemingly do not understand or care about the importance of feminine hygiene for medical safety and instead view them as luxurious items. 

IV. The Necessity of Feminine Hygiene

Menstrual products are not “country club” luxuries but rather necessities for most women. Preventing female inmates' access to feminine hygiene products increases the likelihood of getting diseases and various vaginal infections13 both during and after their prison sentences. When women are not given sufficient feminine care in prisons, they are forced to make these products themselves from unsanitary materials found in prisons which are often unsafe and can even lead many women to require a hysterectomy after leaving prison.14 In terms of vaginal infections, studies show the association between unhygienic menstrual management practices and the prevalence of lower reproductive tract infections. It was found that 95% of women who had lower reproductive tract infections change feminine products less frequently.15 Furthermore, self-made menstrual products can lead to Toxic Shock Syndrome (TSS), which is caused by the release of toxins from an overgrowth of bacteria in the body; women who are unable to change their feminine products regularly become more susceptible to TSS.16 If women in prisons are not given enough pads to last them the entire day, how can they reasonably be expected to change them frequently enough to prevent TSS? Thus, enforceable action is necessary to ensure the safety of incarcerated women, since without access to adequate sanitary supplies, women are likely to face a slew of medical problems.

V. The Constitutional Issue at Play

New York State’s inadequacies in providing essential healthcare to female inmates violates the Equal Protection Clause of the 14th Amendment. This clause states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”17 One case regarding prisoner’s rights under the Equal Protection Clause was the 1974 Supreme Court case Wolff v. McDonnell. Robert McDonnell, a man imprisoned in Nebraska, filed a lawsuit against Charles Wolff Jr., a correctional officer in the Nebraska facility McDonnell was housed in. McDonnell claimed that Wolff and his colleagues were biased in their inspection of mail, violating the Equal Protection Clause of the 14th Amendment.18 In a 6-3 decision, the court decided that while prisoners are not entitled to full protections, the Equal Protection Clause extends to US prisoners as “there is no iron curtain drawn between the Constitution and the prisons of this country.”19 Thus, this case acts as precedent for access to sanitary products in prisons as it confirms that US prisoners do retain rights under the Equal Protection Clause.

The Equal Protection Clause of the 14th Amendment has also been applied to specific prison practices in the United States. The 2005 Supreme Court case Johnson v. California argued whether the California Department of Corrections violated this clause by using race to segregate its inmates.20 Garrison Johnson claimed that the racial segregation put in place by his state prison was a violation of his rights. However, the California Department of Corrections stated that these temporary segregations were necessary in order to prevent racial-based violence within their prisons. In a 5-3 decision, the court decided that under the 14th Amendment, racial classifications must receive strict scrutiny regardless of their intent.21 This case acts as precedent for strict scrutiny applications to specific inequalities prisoners face during their incarceration, such as inadequate access to necessary items. However, gender is not considered a suspect classification for strict scrutiny in the United States. Therefore, intermediate scrutiny should be applied to the discussion of feminine hygiene products in the prison system.

While inmates in male facilities are provided with necessary hygiene kits that can even include razors, feminine hygiene products are seen as “country club” luxuries for female inmates.22 There is legal precedent for differences in medical access meeting the standard of unequal treatment, in this case due to gender. The 1976 case Estelle v. Gamble found that the government has an “obligation to provide medical care for those whom it is punishing by incarceration.”23 Since basic hygiene is a form of medical care, New York State must provide adequate care to female inmates. Similarly, in the 1999 case Olmstead v. L.C., the Supreme Court decided that unjust treatment, specifically segregation, of prisoners with medical or mental disabilities is a form of discrimination.24 This unjust segregation extends to gender as incarcerated women are forced to struggle in ways that their male counterparts do not. Therefore, by disproportionately denying female inmates access to necessary healthcare products—services that are provided for male inmates—New York State has effectively created an unequal discriminatory system in which one's gender determines the quality of healthcare they receive. Therefore, to comply with US constitutional mandates, significant reforms must be implemented to ensure that female inmates are receiving equal treatment under the law.

VI. Recommendations

A potential remedy to these 14th Amendment claims would be for prisons to evolve their training practices. Guards in New York state prisons are not properly trained to interact with inmates, especially female ones. Training for corrections officers in New York State occurs in 8-weeks, nearly 70% of which consists of classroom instruction.25 The training program teaches new guards how to correctly count inmates, respond to bomb threats, use a portable radio, and other information they may need to use during their time as a correctional officer.26 Additionally, this program dedicates two hours to learning about ethnic awareness, three to learning about adolescent inmates, and another three to learning about “special inmates,” encompassing those who are “mentally ill, suicidal, epileptic, etc…”27 Yet, there is no mention of gender-informed training throughout this program. Guards are not trained on how the interactions and needs of female inmates may differ from those of male inmates; they are not taught the importance of feminine hygiene or how to react when asked for menstrual products by female inmates.

New York State needs to expand upon regulations like Senate Bill S8821A to ensure access to feminine hygiene in prison. It also must follow through on such legislation and ensure its implementation to uphold existing laws. Moreover, New York State should follow in the footsteps of states like Illinois and Iowa, which now require their prison guards to go through specific training about how to be “gender-responsive” and better handle incarcerated women.28 These gender-responsive approaches “account for the unique challenges faced by females who are incarcerated”29 which New York’s current system does not acknowledge. Gender-responsive officers become better equipped to care for female inmates. Specifically, they can better understand that menstrual supplies are just as important for female inmates as toilet paper, toothpaste, and soap because they are basic hygiene products.

VII. Conclusion 

A constitutional issue exists in the New York prison system due to the fact that the quality of healthcare an inmate receives during their incarceration is determined by their gender. Senate Bill S8821A is a step in the right direction, but it is not enough without strict enforcement and other laws to follow. Taking action to address the unique challenges that female inmates face is a necessary step towards equity within the prison system and equality throughout society. While prison reform occurred in male facilities in the past, many female inmates were left as an afterthought. Although it is easy to disregard individuals who are serving time for their crimes, it is important for prison reform to extend to the unique needs of female inmates as they are also members of our society. A female inmate’s consequence should be their prison sentence, not being refused basic necessities while completing it. Furthermore, without equal standards for male and female prison facilities, New York State is not upholding the Equal Protection Clause of the 14th Amendment. Thus, New York State must begin training its prison guards with a gender-responsive approach while both instituting and enforcing more regulations to prevent gender inequality within our justice system.

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1 Nicola Erdmann and Sophia Ankel,“How the Design of IPhones, Toilets, and Crash Test Dummies Has Ignored Women - and Sometimes Put Their Lives at Risk,” Business Insider (Oct. 12, 2019) www.businessinsider.com/design-details-show-the-world-been-built-for-men-2019-10. 

2 U.S. Const. amdt. 14 § 1.

3 Elizabeth Swavola, Kristi Riley, and Ram Subramanian, “Overlooked: Women and Jails in an Era of Reform,” Vera Institute of Justice (Aug. 2016), www.vera.org/publications/overlooked-women-and-jails-report. 

4 Jared C. Clark,“Inequality in Prison.” Monitor on Psychology, American Psychological Association (Oct. 2009), www.apa.org/monitor/2009/10/recidivism. 

5 Keri Blakinger, “Opinion: Why I'll Never Forget Having My Period in Prison.” CNN, Cable News Network, (Aug. 23, 2022), www.cnn.com/2022/08/23/opinions/women-in-prison-period-reproductive-health-blakinger/index.html.

6 Nazish Dholakia, “Women’s Incarceration Rates Are Skyrocketing. These Advocates Are Trying to Change That,” Vera Institute of Justice (May 17, 202), www.vera.org/news/womens-incarceration-rates-are-skyrocketing. 

7 Swavola, Riley, and Subramanian, supra note 2

8 Prison Policy Initiative. “The Gender Divide: Table 2.” Table 2 | Prison Policy Initiative, www.prisonpolicy.org/reports/women_overtime_table_2.html. Accessed 22 Apr. 2024. 

9 “NY State Senate Bill S8821a,” NY State Senate, (Dec. 12, 2018),  www.nysenate.gov/legislation/bills/2017/S8821.

10 Blakinger, supra note 4

11 Ibid.

12 Samantha Michaels, “Getting Your Period in Prison Is Hell. These Numbers Prove It,” Mother Jones, (May 3, 2019), www.motherjones.com/crime-justice/2019/05/getting-your-period-in-prison-is-hell-these-numbers-prove-it/. 

13 Hannah Sparks, “Homemade Tampons Are a Dangerous Trend: Gynecologists.” New York Post, New York Post (Feb. 26 2020), nypost.com/2020/02/20/homemade-tampons-are-a-dangerous-trend-gynecologists/. 

14 imberly Haven, “Why I'm Fighting for Menstrual Equity in Prison: News &amp ;Commentary,” American Civil Liberties Union (Nov. 8, 2019), www.aclu.org/news/prisoners-rights/why-im-fighting-for-menstrual-equity-in-prison.

15 Torondel, Belen, et al. “Association between Unhygienic Menstrual Management Practices and Prevalence of Lower Reproductive Tract Infections: A Hospital-Based Cross-Sectional Study in Odisha, India.” BMC Infectious Diseases, U.S. National Library of Medicine (Sept. 21, 2018), www.ncbi.nlm.nih.gov/pmc/articles/PMC6150969/.

16 Ibid. 

17 U.S. Const. amdt. 14 § 1.

18 Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974).

19 Ibid.

20 Johnson v. California, 543 U.S. 499 (2005).

21 Ibid.

22 “Family Guide: Allowable Items.” Department of Corrections and Community Supervision, doccs.ny.gov/family-guide-allowable-items.  

23 Estelle v. Gamble, 429 U.S. 97 (1976).

24 Olmstead v. L.C., 527 U.S. 581 (1999). 

25 Paula Odellas, “Training Academy Brochure: Recruit Officer Training Program.” City of New York Department of Corrections (Jan. 1,1980), www.ojp.gov/pdffiles1/Digitization/63764NCJRS.pdf. 

26 Ibid.

27 Ibid. 

28 Joseph Shapiro, et al. “In Prison, Discipline Comes down Hardest on Women.” NPR, NPR (Oct. 15, 2018),www.npr.org/2018/10/15/647874342/in-prison-discipline-comes-down-hardest-on-women. 

29  Holly Ventura Miller, “Female Reentry and Gender-Responsive Programming: Recommendations for Policy and Practice.” National Institute of Justice (May 19, 2021), nij.ojp.gov/topics/articles/female-reentry-and-gender-responsive-programming.