Hot flash, p.17
Hot Flash, page 17
With antecedents in the women’s health movement of the 1970s, the contemporary menstrual advocacy movement in the United States dates back to roughly 2015. That year, New York lawyer Jennifer Weiss-Wolf—who coined the phrase “menstrual equity” and has become one of its leading advocates—joined with Cosmopolitan magazine to launch a Change.org petition to “Stop Taxing Our Periods. Period!” in the United States.12 The petition, aimed at the many states that imposed sales tax on menstrual products (often even while exempting other “necessities” from taxation), drew on similar petitions that had recently been brought in the U. K., Canada, and Australia. Shortly after the circulation of the petition—which garnered over 50,000 signatures—class action lawsuits were brought to challenge the tampon taxes in New York and Florida, arguing that comparatively unfavorable tax treatment of menstrual products amounted to an unconstitutional form of sex discrimination. Both states then changed their laws to eliminate the tampon tax, at which point the lawsuits were withdrawn.13
As a whole, the success of the tampon tax repeal effort has been striking, with numerous states legislatively eliminating the tax. Indeed, as of mid-2024, only 20 states still impose state sales tax on menstrual products, as compared to 40 in 2015. The tax has been eliminated in “blue” states like New York and California, “red” states like Texas and Nebraska, and numerous states in between.14
The tampon tax served as a gateway issue for the U.S. menstrual advocacy movement, which has since pursued a broad vision of “menstrual equity” on a number of fronts involving the accessibility and affordability of menstrual products. In addition to targeting the tampon tax, menstrual equity advocates have pushed to make menstrual products available for free in schools and correctional facilities. Students at both secondary schools and universities have emerged as leaders in urging the provision of free menstrual products at their institutions, an effort that largely began at the university level and then percolated to the school district level. Between 2015 and 2023, 15 states passed laws requiring some or all of their public secondary schools to provide free menstrual products, and others passed laws providing funding for schools that wish to do so.
Notable progress related to access to menstrual products has also been made in correctional facilities: the federal First Step Act of 2018, a sweeping criminal justice reform bill, included a mandate that federal prisons provide to prisoners “for free, in a quantity that is appropriate to the healthcare needs of each prison . . . tampons and sanitary napkins” that “conform with applicable industry standards.”15 Numerous states then followed suit with respect to their own correctional facilities.16
In keeping with the goals of affordability and accessibility of menstrual products, U.S. Representative Grace Meng (D-NY) has repeatedly proposed a Menstrual Equity for All Act, which she describes as a “whole-of-government approach to eradicate period poverty and achieve menstrual equity.”17 Her bill would, among other things, prohibit sales tax on menstrual products, require Medicaid to cover the cost of menstrual products, direct large employers to provide free menstrual products for their employees, and require all public federal buildings to provide free menstrual products in their restrooms. Although this bill has not moved forward so far, some of Representative Meng’s more targeted initiatives—such as treating menstrual products as qualified medical expenses for reimbursement from health flexible spending arrangements—have been successful.18
In focusing on these issues, the menstrual advocacy movement has helped effectuate real legal change. And, more broadly, it has chipped away at the silence and stigma that has historically surrounded all aspects of the menstrual cycle, by bringing phrases like “period poverty” into the popular lexicon. That dialogue, in turn, has helped set the stage for franker discussions about menopause as well.
Indeed, there is a strong overlap between menstrual and menopause advocacy. Menstruation and menopause are tightly linked, with menarche (the first menstrual period) and menopause serving as bookends of reproductive capacity in approximately half the population. Some cases—like those in which employees are terminated for unexpected perimenopausal bleeding, as described in Chapter 4—are simultaneously menstruation and menopause cases. Moreover, some of the menstrual equity initiatives, such as allowing for reimbursement for menstrual products, also benefit those experiencing perimenopause. Additionally, in contrast to pregnancy and breastfeeding, both menstruation and menopause signal the absence of procreation, a dynamic that has unfortunately contributed to their lack of prioritization within the law.
But menopause is not just a subset of the menstrual equity agenda (and in fact, has been largely absent from menstruation-related advocacy to date). Rather, menopause raises unique issues of its own. The contemporary menstrual advocacy movement has largely been product-based. It kicked off with a focus on repealing the tampon tax, and expanded to other issues involving the affordability and accessibility of menstrual products, particularly in institutional settings like schools and correctional facilities. This emphasis is understandable: the product-based issues are salient, straightforward, and have clear solutions, like eliminating the tampon tax or providing free products in the settings in question. To be sure, menstrual advocacy is increasingly encompassing other issues, such as menstruation-based discrimination and menstrual education, but the clear “wins” so far have centered on products. Such products are not irrelevant to menopause; indeed, the menopausal transition is often marked by heavy and unexpected bleeding. But once that transition is complete, menstrual products are no longer needed.
Additionally, the menstrual advocacy movement has been somewhat youth-dominated. In fact, Representative Meng has stated that her own focus on menstrual advocacy began when she received a letter from a high school student from her congressional district in Queens about the lack of menstrual products in homeless shelters.19 To be sure, advancing the menstrual equity agenda has also required sophisticated legal advocacy and lawmaking by professionals, and the movement is an intergenerational one. But it has a youthful energy. And, of course, menstruation itself is associated with fertility and the potential for pregnancy. By contrast, menopause has different associations, sitting squarely at the intersection of infertility, aging, and, at least to some extent, disability. Situating menopause as a movement more broadly in the overall justice project, as well as within equality jurisprudence, thus involves exploring a variety of theoretical intersections that can offer insight for advocacy.
FEMINISM
Multiple feminist perspectives can inform an agenda for menopause equity. First, feminism invites scrutiny of the biases and assumptions that have long played a role in defining norms.20 It reveals the silence about menopause within workplace law as a reflection of gendered male assumptions about who the “typical” or “ideal” worker is. And it sheds light on how menopause is viewed in the healthcare setting as well, from the 1960s characterizations of menopause as a “tragedy” that robbed women of their feminine essence, to the current lack of attention to menopause within the medical education curriculum. Feminism supports reframing menopause as expected instead of unusual or problematic. Furthermore, in light of its grounding in lived experience, feminist theory emphasizes practical reasoning, calling for close attention to individual variations in the menopause transition.21
Additionally, feminist legal theory’s attention to what is sometimes referred to as the “sameness-difference” debate is especially helpful in thinking through an agenda for menopause equity. That debate asks whether the appropriate focus is on formal equality between men and women (a “sameness” approach), or on the need to accommodate differences, particularly biological differences (a “difference” approach). That debate particularly comes into play with reproduction-associated conditions like pregnancy, breastfeeding, menstruation, and, of course, menopause. Formal equality has intuitive appeal: everyone is treated the same, without regard to biological differences or gender identity.22 The problem with formal equality, however, is that it fails to address unequal baselines. This failure has been explored in earlier chapters, particularly in the workplace context. If, for example, the design of the physical workspace does not include easy access to restrooms, or the design of mandatory uniforms does not take hot flashes into account, that leads to differential impacts. Indeed, if approximately half of the population will experience menopause at some point, but the workplace is not designed with that in mind, treating all employees the same way will disadvantage many menopausal employees. The Mayo Clinic’s estimate of a $1.8 billion annual loss in work productivity from menopausal symptoms, due to fewer hours worked, resignations, and terminations, shows the magnitude of that gendered disadvantage.
In contrast to formal equality, “difference” theories acknowledge that people are not situated equally.23 Here we refer not to the claim that women have values that are different than men’s,24 but rather to the ways that gender functions as a vector for disadvantage.25 As Catharine MacKinnon has explained, biological differences should be the “first to trigger suspicion or scrutiny . . . . [I]s not the structure of the job market, which accommodates the physical needs, life cycle, and family expectations of men but not of women, integral to women’s inferior status?”26 Indeed, while helpful in framing the issues, the sameness-difference debate can sometimes risk diverting attention from the shared underlying goal of feminists of all perspectives, which is to call attention to “the deep structural factors that systematically disadvantage women,” as well as all other minoritized people.27
If one understands that power differences based on gender identity are baked into human relations (and the law itself), then it becomes clear that, in the context of menopause, consideration of biology-based distinctions is critical. The notion of individual one-off accommodations for those who are menopausal, however, raises concerns of its own. Design inclusivity, which grows out of disability theory (discussed next), responds to this tension and offers a pathway forward. Closely related is vulnerability theory, which focuses on the social construction of disability and other “intersecting forms of oppression” and recognizes the need for society to move toward universal accommodation of human embodiment.28 Ultimately, if the workplace is intentionally designed to take into account the full range of human needs and vulnerabilities, then the debate between sameness and difference becomes less relevant.
DISABILITY THEORY
Disability jurisprudence provides a helpful lens for moving past the sameness-difference debate described above. This is not because menopause qualifies as a legal disability for all who experience it, or even because all symptoms of menopause are impairments. Rather, it is because disability jurisprudence offers a different model for framing menopause and thinking through workplace approaches to it.
As Chapter 5 describes, disability theory provides two models for framing difference. The first is the medical model, under which disability is framed as an individual deficit that needs not just diagnosis and treatment, but also remediation. Under that view, disability is an inherently limiting condition that must be legally accommodated in certain contexts and settings. The second is a social model that conceptualizes disability as constructed in the environment itself, not the individual.29 Pursuant to the social model, the goal of disability policies is not necessarily “accommodation,” but rather the redesign of the surrounding environment to ensure integration of all, without the need for special accommodation.30 In this way, disability theory echoes the feminist legal method of challenging certain norms (e.g., able bodies, cis male bodies) as default expectations for everyone.
Applying the social model of disability might mean considering how to use Universal Design, which involves designing and building environments that are accessible by anyone, regardless of age, sex, or disability.31 With respect to menopause, Universal Design in new construction or retooling existing buildings could mean, for instance, ensuring better climate control—whether through air conditioning, desk fans at each workstation, or cool break rooms—to enable employees to better cope with hot flashes.32 Flexible scheduling that takes potential sleep disruptions into account is another example that moves beyond physical design.33 In other words, the challenges of menopause can be addressed if workplaces and policies presume menopause’s existence—an approach that requires shifting baseline assumptions about who the typical worker may be.
AGING
The field of aging studies provides an additional lens for analyzing menopause, which is stigmatized in part because of its association with a loss of youth and fertility. Aging theories consider “how the law shapes aging,” how to allocate rights and responsibilities to respond to differing age-based needs, and how to analyze “what the legal significance of age is.”34 These theories also challenge society to consider healthcare challenges associated with aging, and to address ageist stereotypes, both by reducing their salience and by providing redress when they produce discrimination and disadvantage.
On a practical level, AARP’s growing interest in menopause is an encouraging development for menopause advocacy. This organization has approximately 38 million members, and is widely considered to be a “lobbying powerhouse” on issues related to older Americans. In conducting research about various aspects of the menopausal experience35—and in participating in events like the June 2023 Department of Labor Women’s Bureau roundtable—AARP is increasingly drawing attention to menopause as part of its policy agenda. The AARP “Innovation Labs” even sponsored a “Hacking Menopause” challenge, with prize money attached and a goal of finding tech-based solutions for the symptoms of menopause.36
At an initial level, it may seem obvious to treat menopause as an issue of healthy aging that should be accounted for, both in designing workplaces and in establishing a public health agenda. Indeed, menopause typically is the result of age-related loss of ovarian function, as discussed in Chapter 3, and so it clearly is an issue of aging. Furthermore, even if employees are not personally grappling with managing menopause’s symptoms while they are at work, menopause-friendly workplaces are consistent with more flexible work policies generally. AARP strongly supports paid family leave and parental leave, because these policies allow employees to “both attend to their own health needs and care for loved ones.”37 The challenge—and aging theories help in understanding why this is difficult—is ensuring that menopause is treated as part of healthy aging.
POVERTY STUDIES
Poverty studies are concerned with the structural components of poverty and, typically, social justice. Viewing menopause through a poverty lens is important in order to ensure that both its experience and its treatment account for socioeconomic factors. Here, healthcare is particularly salient. Medicaid, the federal health insurance available for low-income individuals, pays for a range of services, including many prescription medicines. Each state is free to set its own precise rules for Medicaid coverage, but generally speaking, menopausal hormone therapy (MHT) is covered by Medicaid if prescribed for the management of menopause symptoms.38 What Medicaid may not cover, however, are so-called alternative treatments for menopause, such as acupuncture, herbs, biofeedback, and meditation.39 A federal bill that would have extended Medicaid (and Medicare) coverage to alternative therapies, known as the Menopausal Hormone Replacement Therapies and Alternative Treatments and Fairness Act of 2011, did not advance out of committee and has not been reintroduced.40
Despite Medicaid’s coverage of MHT, those who are enrolled in public health insurance may not have access to informed menopause care.41 Compared to patients with private health insurance, a Medicaid patient is 1.6 times less likely to successfully schedule a primary care appointment and 3.3 times less likely to successfully schedule a specialty appointment.42 Because Medicaid is not as widely accepted as private insurance, its users have not only “less access to choices of primary care providers[,] but likely less access to providers who specialize in menopause treatment” as well.43 Relatedly, those experiencing perimenopause need menstrual products such as tampons and pads, which in many states are covered neither by Medicaid nor by Supplemental Nutrition Assistance Program (SNAP).
Given the importance and magnitude of issues like food insecurity and lack of affordable housing that poverty lawyers and advocates are attempting to address, it is understandable that issues such as access to effective treatment for menopause might lack salience. Menopause is not, of course, a life-or-death issue in the same way that adequate food and housing are. At the same time, given the relative ease of access to traditionally “male” products like Viagra under state Medicaid programs,44 the de facto difficulties that low-income people have in accessing informed menopause care and even menstrual products is noteworthy. Greater access to healthcare—in perimenopause, menopause, and beyond—is part of a robust antipoverty agenda.
INTERSECTIONALITY
As this overview of jurisprudential theories and social movements indicates, fully taking account of menopause-based discrimination requires a distinctly intersectional approach. As Chapter 4 describes, Professor Kimberlé Crenshaw uses the metaphor of a traffic intersection to explain that discrimination can occur along multiple identity axes, all of which meet at one point.45 And, as Crenshaw explains, intersectional discrimination is not merely additive, but synergistic.46
Menopause is a perfect illustration of this phenomenon, and menopause policy therefore requires an intersectional approach along axes of sex and age, and other factors such as disability, race, gender, and socioeconomic status. To discriminate on the basis of menopause is to discriminate on the basis of sex, age, and often disability (in addition to, possibly, gender identity and other factors) simultaneously. Yet current U.S. antidiscrimination law requires the disaggregation of claims, rather than recognizing them as cumulative.
In particular, given evidence of racialized differences in the experience of menopause (while acknowledging that any individual’s experience is unique),47 an agenda for menopause equity must take race into account. Labor force data supports the importance of this approach.48 First, the likelihood of having workplace flexibility to address menopause may depend on the type of job one has, which in turn may be correlated to race or class. For example, Asian and white women are more likely than Black and Hispanic women to be employed in management, professional, or related occupations that offer greater workplace flexibility.49 By contrast, Black and Hispanic women are more likely than Asian and white women to work in lower-wage service industries, which have less flexibility and fewer benefits.50 Thus, Black and Hispanic women are more likely than Asian or white women to be in roles that require uniforms, limit breaks, or lack healthcare insurance and paid leave.51 Because of these racialized labor-force differentials, laws or policies designed to achieve menopause equity should explicitly take into account different workplace settings, ensuring access to the same means for managing menopause.
As a whole, the success of the tampon tax repeal effort has been striking, with numerous states legislatively eliminating the tax. Indeed, as of mid-2024, only 20 states still impose state sales tax on menstrual products, as compared to 40 in 2015. The tax has been eliminated in “blue” states like New York and California, “red” states like Texas and Nebraska, and numerous states in between.14
The tampon tax served as a gateway issue for the U.S. menstrual advocacy movement, which has since pursued a broad vision of “menstrual equity” on a number of fronts involving the accessibility and affordability of menstrual products. In addition to targeting the tampon tax, menstrual equity advocates have pushed to make menstrual products available for free in schools and correctional facilities. Students at both secondary schools and universities have emerged as leaders in urging the provision of free menstrual products at their institutions, an effort that largely began at the university level and then percolated to the school district level. Between 2015 and 2023, 15 states passed laws requiring some or all of their public secondary schools to provide free menstrual products, and others passed laws providing funding for schools that wish to do so.
Notable progress related to access to menstrual products has also been made in correctional facilities: the federal First Step Act of 2018, a sweeping criminal justice reform bill, included a mandate that federal prisons provide to prisoners “for free, in a quantity that is appropriate to the healthcare needs of each prison . . . tampons and sanitary napkins” that “conform with applicable industry standards.”15 Numerous states then followed suit with respect to their own correctional facilities.16
In keeping with the goals of affordability and accessibility of menstrual products, U.S. Representative Grace Meng (D-NY) has repeatedly proposed a Menstrual Equity for All Act, which she describes as a “whole-of-government approach to eradicate period poverty and achieve menstrual equity.”17 Her bill would, among other things, prohibit sales tax on menstrual products, require Medicaid to cover the cost of menstrual products, direct large employers to provide free menstrual products for their employees, and require all public federal buildings to provide free menstrual products in their restrooms. Although this bill has not moved forward so far, some of Representative Meng’s more targeted initiatives—such as treating menstrual products as qualified medical expenses for reimbursement from health flexible spending arrangements—have been successful.18
In focusing on these issues, the menstrual advocacy movement has helped effectuate real legal change. And, more broadly, it has chipped away at the silence and stigma that has historically surrounded all aspects of the menstrual cycle, by bringing phrases like “period poverty” into the popular lexicon. That dialogue, in turn, has helped set the stage for franker discussions about menopause as well.
Indeed, there is a strong overlap between menstrual and menopause advocacy. Menstruation and menopause are tightly linked, with menarche (the first menstrual period) and menopause serving as bookends of reproductive capacity in approximately half the population. Some cases—like those in which employees are terminated for unexpected perimenopausal bleeding, as described in Chapter 4—are simultaneously menstruation and menopause cases. Moreover, some of the menstrual equity initiatives, such as allowing for reimbursement for menstrual products, also benefit those experiencing perimenopause. Additionally, in contrast to pregnancy and breastfeeding, both menstruation and menopause signal the absence of procreation, a dynamic that has unfortunately contributed to their lack of prioritization within the law.
But menopause is not just a subset of the menstrual equity agenda (and in fact, has been largely absent from menstruation-related advocacy to date). Rather, menopause raises unique issues of its own. The contemporary menstrual advocacy movement has largely been product-based. It kicked off with a focus on repealing the tampon tax, and expanded to other issues involving the affordability and accessibility of menstrual products, particularly in institutional settings like schools and correctional facilities. This emphasis is understandable: the product-based issues are salient, straightforward, and have clear solutions, like eliminating the tampon tax or providing free products in the settings in question. To be sure, menstrual advocacy is increasingly encompassing other issues, such as menstruation-based discrimination and menstrual education, but the clear “wins” so far have centered on products. Such products are not irrelevant to menopause; indeed, the menopausal transition is often marked by heavy and unexpected bleeding. But once that transition is complete, menstrual products are no longer needed.
Additionally, the menstrual advocacy movement has been somewhat youth-dominated. In fact, Representative Meng has stated that her own focus on menstrual advocacy began when she received a letter from a high school student from her congressional district in Queens about the lack of menstrual products in homeless shelters.19 To be sure, advancing the menstrual equity agenda has also required sophisticated legal advocacy and lawmaking by professionals, and the movement is an intergenerational one. But it has a youthful energy. And, of course, menstruation itself is associated with fertility and the potential for pregnancy. By contrast, menopause has different associations, sitting squarely at the intersection of infertility, aging, and, at least to some extent, disability. Situating menopause as a movement more broadly in the overall justice project, as well as within equality jurisprudence, thus involves exploring a variety of theoretical intersections that can offer insight for advocacy.
FEMINISM
Multiple feminist perspectives can inform an agenda for menopause equity. First, feminism invites scrutiny of the biases and assumptions that have long played a role in defining norms.20 It reveals the silence about menopause within workplace law as a reflection of gendered male assumptions about who the “typical” or “ideal” worker is. And it sheds light on how menopause is viewed in the healthcare setting as well, from the 1960s characterizations of menopause as a “tragedy” that robbed women of their feminine essence, to the current lack of attention to menopause within the medical education curriculum. Feminism supports reframing menopause as expected instead of unusual or problematic. Furthermore, in light of its grounding in lived experience, feminist theory emphasizes practical reasoning, calling for close attention to individual variations in the menopause transition.21
Additionally, feminist legal theory’s attention to what is sometimes referred to as the “sameness-difference” debate is especially helpful in thinking through an agenda for menopause equity. That debate asks whether the appropriate focus is on formal equality between men and women (a “sameness” approach), or on the need to accommodate differences, particularly biological differences (a “difference” approach). That debate particularly comes into play with reproduction-associated conditions like pregnancy, breastfeeding, menstruation, and, of course, menopause. Formal equality has intuitive appeal: everyone is treated the same, without regard to biological differences or gender identity.22 The problem with formal equality, however, is that it fails to address unequal baselines. This failure has been explored in earlier chapters, particularly in the workplace context. If, for example, the design of the physical workspace does not include easy access to restrooms, or the design of mandatory uniforms does not take hot flashes into account, that leads to differential impacts. Indeed, if approximately half of the population will experience menopause at some point, but the workplace is not designed with that in mind, treating all employees the same way will disadvantage many menopausal employees. The Mayo Clinic’s estimate of a $1.8 billion annual loss in work productivity from menopausal symptoms, due to fewer hours worked, resignations, and terminations, shows the magnitude of that gendered disadvantage.
In contrast to formal equality, “difference” theories acknowledge that people are not situated equally.23 Here we refer not to the claim that women have values that are different than men’s,24 but rather to the ways that gender functions as a vector for disadvantage.25 As Catharine MacKinnon has explained, biological differences should be the “first to trigger suspicion or scrutiny . . . . [I]s not the structure of the job market, which accommodates the physical needs, life cycle, and family expectations of men but not of women, integral to women’s inferior status?”26 Indeed, while helpful in framing the issues, the sameness-difference debate can sometimes risk diverting attention from the shared underlying goal of feminists of all perspectives, which is to call attention to “the deep structural factors that systematically disadvantage women,” as well as all other minoritized people.27
If one understands that power differences based on gender identity are baked into human relations (and the law itself), then it becomes clear that, in the context of menopause, consideration of biology-based distinctions is critical. The notion of individual one-off accommodations for those who are menopausal, however, raises concerns of its own. Design inclusivity, which grows out of disability theory (discussed next), responds to this tension and offers a pathway forward. Closely related is vulnerability theory, which focuses on the social construction of disability and other “intersecting forms of oppression” and recognizes the need for society to move toward universal accommodation of human embodiment.28 Ultimately, if the workplace is intentionally designed to take into account the full range of human needs and vulnerabilities, then the debate between sameness and difference becomes less relevant.
DISABILITY THEORY
Disability jurisprudence provides a helpful lens for moving past the sameness-difference debate described above. This is not because menopause qualifies as a legal disability for all who experience it, or even because all symptoms of menopause are impairments. Rather, it is because disability jurisprudence offers a different model for framing menopause and thinking through workplace approaches to it.
As Chapter 5 describes, disability theory provides two models for framing difference. The first is the medical model, under which disability is framed as an individual deficit that needs not just diagnosis and treatment, but also remediation. Under that view, disability is an inherently limiting condition that must be legally accommodated in certain contexts and settings. The second is a social model that conceptualizes disability as constructed in the environment itself, not the individual.29 Pursuant to the social model, the goal of disability policies is not necessarily “accommodation,” but rather the redesign of the surrounding environment to ensure integration of all, without the need for special accommodation.30 In this way, disability theory echoes the feminist legal method of challenging certain norms (e.g., able bodies, cis male bodies) as default expectations for everyone.
Applying the social model of disability might mean considering how to use Universal Design, which involves designing and building environments that are accessible by anyone, regardless of age, sex, or disability.31 With respect to menopause, Universal Design in new construction or retooling existing buildings could mean, for instance, ensuring better climate control—whether through air conditioning, desk fans at each workstation, or cool break rooms—to enable employees to better cope with hot flashes.32 Flexible scheduling that takes potential sleep disruptions into account is another example that moves beyond physical design.33 In other words, the challenges of menopause can be addressed if workplaces and policies presume menopause’s existence—an approach that requires shifting baseline assumptions about who the typical worker may be.
AGING
The field of aging studies provides an additional lens for analyzing menopause, which is stigmatized in part because of its association with a loss of youth and fertility. Aging theories consider “how the law shapes aging,” how to allocate rights and responsibilities to respond to differing age-based needs, and how to analyze “what the legal significance of age is.”34 These theories also challenge society to consider healthcare challenges associated with aging, and to address ageist stereotypes, both by reducing their salience and by providing redress when they produce discrimination and disadvantage.
On a practical level, AARP’s growing interest in menopause is an encouraging development for menopause advocacy. This organization has approximately 38 million members, and is widely considered to be a “lobbying powerhouse” on issues related to older Americans. In conducting research about various aspects of the menopausal experience35—and in participating in events like the June 2023 Department of Labor Women’s Bureau roundtable—AARP is increasingly drawing attention to menopause as part of its policy agenda. The AARP “Innovation Labs” even sponsored a “Hacking Menopause” challenge, with prize money attached and a goal of finding tech-based solutions for the symptoms of menopause.36
At an initial level, it may seem obvious to treat menopause as an issue of healthy aging that should be accounted for, both in designing workplaces and in establishing a public health agenda. Indeed, menopause typically is the result of age-related loss of ovarian function, as discussed in Chapter 3, and so it clearly is an issue of aging. Furthermore, even if employees are not personally grappling with managing menopause’s symptoms while they are at work, menopause-friendly workplaces are consistent with more flexible work policies generally. AARP strongly supports paid family leave and parental leave, because these policies allow employees to “both attend to their own health needs and care for loved ones.”37 The challenge—and aging theories help in understanding why this is difficult—is ensuring that menopause is treated as part of healthy aging.
POVERTY STUDIES
Poverty studies are concerned with the structural components of poverty and, typically, social justice. Viewing menopause through a poverty lens is important in order to ensure that both its experience and its treatment account for socioeconomic factors. Here, healthcare is particularly salient. Medicaid, the federal health insurance available for low-income individuals, pays for a range of services, including many prescription medicines. Each state is free to set its own precise rules for Medicaid coverage, but generally speaking, menopausal hormone therapy (MHT) is covered by Medicaid if prescribed for the management of menopause symptoms.38 What Medicaid may not cover, however, are so-called alternative treatments for menopause, such as acupuncture, herbs, biofeedback, and meditation.39 A federal bill that would have extended Medicaid (and Medicare) coverage to alternative therapies, known as the Menopausal Hormone Replacement Therapies and Alternative Treatments and Fairness Act of 2011, did not advance out of committee and has not been reintroduced.40
Despite Medicaid’s coverage of MHT, those who are enrolled in public health insurance may not have access to informed menopause care.41 Compared to patients with private health insurance, a Medicaid patient is 1.6 times less likely to successfully schedule a primary care appointment and 3.3 times less likely to successfully schedule a specialty appointment.42 Because Medicaid is not as widely accepted as private insurance, its users have not only “less access to choices of primary care providers[,] but likely less access to providers who specialize in menopause treatment” as well.43 Relatedly, those experiencing perimenopause need menstrual products such as tampons and pads, which in many states are covered neither by Medicaid nor by Supplemental Nutrition Assistance Program (SNAP).
Given the importance and magnitude of issues like food insecurity and lack of affordable housing that poverty lawyers and advocates are attempting to address, it is understandable that issues such as access to effective treatment for menopause might lack salience. Menopause is not, of course, a life-or-death issue in the same way that adequate food and housing are. At the same time, given the relative ease of access to traditionally “male” products like Viagra under state Medicaid programs,44 the de facto difficulties that low-income people have in accessing informed menopause care and even menstrual products is noteworthy. Greater access to healthcare—in perimenopause, menopause, and beyond—is part of a robust antipoverty agenda.
INTERSECTIONALITY
As this overview of jurisprudential theories and social movements indicates, fully taking account of menopause-based discrimination requires a distinctly intersectional approach. As Chapter 4 describes, Professor Kimberlé Crenshaw uses the metaphor of a traffic intersection to explain that discrimination can occur along multiple identity axes, all of which meet at one point.45 And, as Crenshaw explains, intersectional discrimination is not merely additive, but synergistic.46
Menopause is a perfect illustration of this phenomenon, and menopause policy therefore requires an intersectional approach along axes of sex and age, and other factors such as disability, race, gender, and socioeconomic status. To discriminate on the basis of menopause is to discriminate on the basis of sex, age, and often disability (in addition to, possibly, gender identity and other factors) simultaneously. Yet current U.S. antidiscrimination law requires the disaggregation of claims, rather than recognizing them as cumulative.
In particular, given evidence of racialized differences in the experience of menopause (while acknowledging that any individual’s experience is unique),47 an agenda for menopause equity must take race into account. Labor force data supports the importance of this approach.48 First, the likelihood of having workplace flexibility to address menopause may depend on the type of job one has, which in turn may be correlated to race or class. For example, Asian and white women are more likely than Black and Hispanic women to be employed in management, professional, or related occupations that offer greater workplace flexibility.49 By contrast, Black and Hispanic women are more likely than Asian and white women to work in lower-wage service industries, which have less flexibility and fewer benefits.50 Thus, Black and Hispanic women are more likely than Asian or white women to be in roles that require uniforms, limit breaks, or lack healthcare insurance and paid leave.51 Because of these racialized labor-force differentials, laws or policies designed to achieve menopause equity should explicitly take into account different workplace settings, ensuring access to the same means for managing menopause.
