A lawsuit arguing that Kentucky’s tax on menstrual products is unconstitutional will be allowed to proceed through the courts, Jefferson Circuit Court Judge Melissa Logan Bellows ruled Thursday. 

This comes roughly a month after the judge heard arguments over the state’s motion to dismiss the case that Alex Baldon and Skylar Davis filed in March. 

These women assert that Kentucky is discriminating against women on the basis of sex by taxing period products like tampons and pads when no comparable product for males is thus taxed. 

When Bellows heard arguments over the motion to dismiss the case, Lucas Roberts, representing the state through the Office of Legal Services for Revenue, argued not against the merits of the case, but said the women had not exhausted their administrative recourses. They should have first lodged complaints through the Department of Revenue and Board of Taxes, Roberts told the judge. 

The lawyers representing the two women who filed the lawsuit countered, saying the administrative option would not be appropriate since the board can’t consider the constitutionality of a tax and because the women are not seeking refunds. 

In her Thursday ruling denying the motion to dismiss, Judge Bellows acknowledged that “exhaustion is the ordinary rule in tax disputes and that an as-applied challenge often requires agency process so the constitutional injury can be framed by administrative action.” 

But, she said: “Kentucky also recognizes that exhaustion is not required — and would be futile — where the complaint attacks a statute as void on its face and the agency cannot decide that constitutional question.” 

“The Department and the Board of Tax Appeals enforce and review tax determinations; they do not sit as constitutional courts to invalidate statutory classifications,” Bellows wrote. “Sending every menstruating consumer through a refund pipeline the complaint does not invoke would not produce the declaration sought and would not conserve judicial resources.” 

Kentucky is one of 18 states that still tax period products, according to Period Law. 

The Lantern has asked the Finance and Administration Cabinet for comment on the ruling. 

Laura Landenwich, one of the attorneys for the women suing, said typically cases like this would move into a discovery phase, but in this case, the facts are minimal and simple: That the clients both menstruate and buy the products they need for that. The remaining arguments relate to Kentucky’s law. In the coming months attorneys will likely file motions for summary judgement, which is a way of asking a judge to rule on claims.

For now, Landenwich said, “We’re super excited that we got a ruling just 100% in our favor.”

This story may be updated. 

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