Photo: Daniel Acker/Bloomberg

Bar exam takers around the country are facing unprecedented uncertainty. In less than two weeks, thousands of recent law graduates will sit down in hotel ballrooms, convention centers and large classrooms to take the test that they have been training for three (or more years) to take. With little notice, several states have cancelled the bar exam because of COVID-19 health concerns. Some states like New Jersey and Florida announced an online bar exam in lieu of traditional testing that otherwise would require hundreds or thousands of people to crowd into enclosed spaces for several hours a day over a two-day period. Oregon and Utah canceled their exams and granted a "diploma privilege" to allow law graduates to practice without taking the bar exam. New York axed its test just seven weeks before the big day, with no plans for an alternate test administration. Other states, including those where COVID-19 infection rates continue to rise, are going full-speed ahead with plans to administer in-person tests later this month.

The judgment of bar examiners that plan to hold in-person tests this summer is seriously in question. Mississippi, a coronavirus "red zone" according to the White House, is requiring test-takers to sign a liability waiver if they want to sit for the exam. North Carolina, another "red zone," has informed test takers that sitting for the exam will be treated as a voluntary assumption of risk of exposure to COVID-19. Further strange news comes out of West Virginia and Texas. Test takers there may not bring tampons, pads or other menstrual products into the exam. Instead the bar examiners say that they will provide "feminine products" to candidates. Arizona had a similar policy, but wisely walked that back just a few days after a minor social media eruption. West Virginia and Texas should do the same.

Bar exam bans on menstrual products are discriminatory and should be lifted immediately. State boards of bar examiners, the gatekeepers for the legal profession, should be in the business of upholding the law and adopting policies that reflect its highest principles. Bans on bringing menstrual products are a form of gender bias. They are inconsistent with the legal profession's highest and best values of providing equal opportunity.

We applaud efforts to make menstrual products available in schools, places of employment and other places. These products are necessities just like toilet paper. Kudos to the West Virginia and Texas bar examiners for making sure that test takers have access to products. But depriving exam-takers of the option to bring their own tampons and pads goes too far. Putting out a supply of tampons in a communal basket, whether in restrooms or otherwise, invites the very high-touch scenario that increases public health risk right now. More broadly, the products supplied may not meet the needs of all test takers. (Superabsorbent tampons with cardboard applicators are not appropriate in all situations, after all.) As the test goes on, the supply may run out—forcing test takers to alert proctors and lose precious time. There is also the question of where precisely the products will be available. Arizona previously said it was making them available in "women's restrooms," but that does not account for trans and gender nonbinary test takers who do not use women's restrooms and may need products, too. The bar exam is stressful enough without having to worry about bleeding through one's clothes.

Bar examiners' bans on menstrual products likely violate equal protection, as well. Arguably, policies like West Virginia's and Texas' are gender neutral, prohibiting anyone from bringing "feminine products" to the bar exam. These rules are, nevertheless, sex-based. Just as Justice Scalia wrote in Bray v. Alexandria Women's Health Clinic that, "A tax on wearing yarmulkes is a tax on Jews," menstruation and the associated need for menstrual products is a proxy for female sex. Menstruation is a regular and unavoidable occurrence in the lives of approximately half the population (and slightly more than half of all recent law graduates) from, on average, the ages of 13 to 51. By not allowing test-takers to bring their own products, bar examiners put at a disadvantage those who are menstruating during the exam. There is no exceedingly persuasive justification for this type of sex-based classification. The failure to include menstrual products on lists of items permitted at the bar exam may not be the result of a secret discriminatory plot to keep the legal profession male. But the policy is the product of a culture that alternately ignores menstruation or treats it as something suspicious, dirty and secretive.

Menstrual product bans also reveal bar examiners' ignorance about how menstrual products work. It would be very difficult for a test taker to write a "cheat sheet" for the rule against perpetuities or state personal jurisdiction rules on a small piece of absorbent material or its wrapping. Test-takers do not show up for the bar exam thinking they have an extra opportunity to refresh their recollection by running to the bathroom to check what is written on a tampon or pad. The simple solution is to have a supply of menstrual products available in all restrooms and to allow test takers to bring their own tampons and pads. Most states already allow candidates to bring a clear bag with necessary items like keys, cash, credit cards and medicine in the original packaging. All other states need to do is add menstrual products to the list of permitted items.

To be sure, in the midst of a public health pandemic, bar examiners are scrambling to make adjustments to testing procedures. In states going forward with in-person exams, many recent law school graduates are making difficult decisions to put their health (and the health of family members) at risk by taking the test. Whether candidates can bring menstrual products to the bar exam may seem like a minor issue. But it's not—certainly not for menstruating test takers, and not for the rest of society either. The bans belie a suspicion and ignorance about the biological needs of half of our future colleagues. They are discriminatory, irrational and send a hostile message.

If the legal profession is committed to holding up equality for all, regardless of a biological fact like menstruation, test takers must be allowed to bring tampons and pads with them to the bar exam.

Bridget J. Crawford is a professor at the Elisabeth Haub School of Law at Pace University. Follow her on Twitter @profbcrawford

Emily Gold Waldman is a professor and the associate dean for faculty development and operations at the Elisabeth Haub School of Law at Pace University. Follow her on Twitter @egwaldman.

Crawford and Waldman are the co-authors of Menstruation Matters: Making Law and Society Responsive to Human Needs (forthcoming in 2021 from NYU Press).