A right to menstrual health in a transition to a circular economy

Abstract

This article provides a perspective on whether articulating menstrual health as a human right can support a transition to the circular economy. The article analyses a positive right to menstrual health enacted through free product legislation and further analyses how this right can address stigma, education, sanitation and environmental barriers to using reusable menstrual products. The article can inform policymakers of complexities in the uptake of reusable menstrual products.

To address the environmental impacts of pollution and resource consumption, societies are increasingly recognising the need to transition to a ‘zero waste’ circular economy. This has been reflected, for example, in the phasing out of single-use plastics in some Australian jurisdictions. Circular economy systems aim to use products for as long as possible, to minimise waste, and regulation is the key to addressing pollution and waste. ¹ While not there yet, moving to a circular economy may require Australian law to address the environmental impact of other single-use products, such as menstrual products. Australians use millions of single-use menstrual products every year that end up mostly in landfill after one use, ² and include components that can take 500 years to break down. ³ Despite this, there is a lack of attention towards law and policy addressing the management of menstrual waste. ⁴ Transitioning to a zero-waste circular economy may require encouragement towards the uptake of reusable menstrual products (‘RMPs’), such as menstrual pads, underwear and cups. Washable pads can be used for around five years, period underwear around two years and menstrual cups up to 10 years. ⁵ However, there is virtually no regulation ensuring that a shift to RMPs is safe and equitable. Given menstruation is experienced by roughly a quarter of Australians, ⁶ it is critical to understand how the law can shape a transition to sustainable menstrual practices. There is substantial research on sustainable period products, menstrual equity, and the law and menstruation. However, there is limited research discussing how the law can support an equitable transition from single-use products to RMPs. Therefore, this article questions whether engaging with a right to menstrual health can encourage and protect menstruators in the uptake of RMPs, to support a transition to a circular economy.

While there is a recognised link between menstrual health and human rights, ⁷ menstrual health is not formally recognised as a human right. ⁸ This article will not be focused on the enforceability or efficacy of a right to menstrual health. Considering the wider social, economic and political implications of regulating menstrual health, this article argues that engaging with a right to menstrual health can support a more equitable transition to a circular economy. This article will analyse the positive enactment of a right to menstrual health through free product legislation and evaluate broader effects of such a right which calls to address stigma, improve menstrual education and sanitation, and protect the environment. This article recognises that some of the following discussion applies to menstrual products generally, however the focus in relation to a circular economy is on the shift towards RMPs. Menstruators must be a policy priority in a transition to a circular economy – a priority that can be promoted and safeguarded by a right to menstrual health.

Considering a right to menstrual health

Transitioning to zero-waste menstrual cycles requires an understanding of menstrual health, to ensure holistic policy approaches to RMPs. Menstrual health can be defined as the ‘state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity, in relation to the menstrual cycle’. ⁹ This incorporates many factors required to achieve menstrual health, including being able to access and use ‘effective and affordable menstrual materials and having supportive facilities and services’, ¹⁰ as well as other factors such as accessing information and experiencing positive environments free from stigma.

Menstruation is not only a biological process, but also a fundamental experience bridging personal, social and political norms. ¹¹ There is an intrinsic link between menstrual health and human rights, and a ‘need to recognise menstrual health as a key right within the right to health’. ¹² Therefore, although not formally recognised, this article distinguishes the right to menstrual health as being within or conditional to a general right to health. While addressing rights such as the right to education or the right to work can, in turn, address menstrual health, this article takes the perspective that instead:

menstrual health should be understood as a human right that is often a condition for other rights such as access to education, movement in public space, and the right to dignity and autonomy. ¹³

Menstruation is a critical bodily function that deserves recognition and protection, particularly in a transition to a circular economy. As such, this article considers a standalone right to menstrual health and how it can support an equitable transition to more circular periods, rather than how other rights (like the right to education) can be protected by providing menstrual healthcare.

While some jurisdictions in Australia have standalone human rights legislation (Victoria, the Australian Capital Territory (ACT) and Queensland), they do not directly provide for a right to health, and health determinants are ‘largely omitted’. ¹⁴ Human rights legislation does refer to other rights relating to health such as the right to privacy of home and family life which manifests through legislation on private medical records. ¹⁵ However, with no right to menstrual health, there are limited protections for menstruators generally, and particularly when transitioning to a circular economy. This was demonstrated by Australia’s celebrated but weak taxation reform surrounding menstrual products. ¹⁶ In 2019, the Goods and Services Tax (GST) was removed from menstrual products, including menstrual cups and menstrual underwear. ¹⁷ However, the removal of a 5 per cent tax on products that may only cost a few dollars did not significantly impact on consumers. ¹⁸ Further, the reforms failed to meaningfully assist menstruators with limited means to purchase menstrual products. ¹⁹ Critically, the reforms also did not address the environmental impacts of disposable menstrual products or the accessibility of RMPs. As such, there is a significant regulatory gap to be filled by a right to menstrual health.

A positive right: Access to RMPs

Menstruators who cannot afford RMPs may be excluded from fully participating in a circular economy. A transition to a zero-waste circular economy would arguably require a shift towards RMPs. However, RMPs may not be affordable and therefore not accessible to all menstruators. Not being able to access RMPs could breach the right to menstrual health, where being able to access affordable menstrual materials is part of achieving menstrual health. A right to menstrual health could protect menstruators in a transition to a circular economy by safeguarding access to RMPs. This section will consider legislation that engages a positive right to menstrual health by mandating the provision of free RMPs.

Menstrual products are a personal financial burden, meaning menstruators who cannot afford period products are forced into ‘period poverty’. Australians experiencing period poverty cannot afford suitable menstrual products, and may instead improvise (eg, by using toilet paper). ²⁰ Unlike toilet paper, period products are not generally publicly available, so menstruators who cannot afford or access period products may simply have to go without. Montano suggests the current ‘bring your own tampon’ policy (where, unlike toilet paper, it is considered ‘necessary and common sense for all menstruators to carry menstrual hygiene products at all times’) is a violation of the right to health. ²¹ This may be exacerbated in a shift towards RMPs, considering reusable products are generally more expensive than disposable ones and, like tampons but unlike toilet paper, are not generally available for free in public spaces. While the ongoing costs of RMPs are relatively low, and therefore seen as a solution to period poverty, the upfront cost can be difficult to fit in a monthly budget. For example, one menstrual cup can cost $35 ²² or even $70, ²³ and a five pack of period underwear can cost $95 ²⁴ or even $180. ²⁵

This article proposes that if a future circular economy requires the use of RMPs, then those who cannot afford to purchase RMPs will be driven into period poverty. Even now, affordability prevents menstruators from participating in a circular economy future, with the uptake of RMPs considered a class-based movement. ²⁶ RMPs require purchasing power and private sanitary facilities, resources often limited for menstruators experiencing homelessness. ²⁷ In a transition to a circular economy shifting towards RMPs, menstruators who cannot afford RMPs may find their right to menstrual health has been violated, unless RMPs are made more accessible. Without government intervention, a transition to circular periods may interfere with, or totally deny, the ability to sustainably manage menstrual hygiene for those who cannot afford RMPs. A positive right to menstrual health, where the right encompasses the right to access menstrual products, would demand that RMPs are available to all menstruators in a transition to a circular economy. However, without positively enacting a right to menstrual health, a transition to RMPs leaves the less privileged behind in a transition to a circular economy.

Free product legislation to improve accessibility

While a right to menstrual health may lack litigious enforceability, ²⁸ the law is considered a key actor in eliminating period poverty ²⁹ and should ensure that RMPs are accessible. For instance, the ACT introduced the Period Products and Facilities (Access) Act 2023 (ACT) (the ‘Access Act’), which mandates that those experiencing period poverty can access period products at ‘suitable places’. ³⁰ The Access Act defines period products to include menstrual cups and period underwear. ³¹ In other Australian jurisdictions, however, there are virtually no legislative mechanisms attempting to eradicate period poverty or ensure equitable participation in more circular periods. Governments have engaged in policy-based initiatives to provide free period products in public schools across Australia. ³² While these are welcome and necessary initiatives, the program’s ambits are limited. The policy focus is on the right to education (school absenteeism), rather than ensuring everyone has access to period products. Policy that is based in a right to menstrual health could justify the expansion of the program to spaces outside of schools, allowing more menstruators to access period products, including RMPs.

Legislation can ensure access to RMPs, regardless of economic status. Scotland famously became the first country to introduce legislation making period products free – the Period Products (Free Provision) (Scotland) Act 2021 (the ‘Free Provision Act’). The Free Provision Act mandates that free period products be made available through ‘responsible bodies’ such as education providers. Similarly to the ACT Access Act, while the legislation does not require products to be ‘environmentally safe’, ³³ period products defined in the Free Provision Act include RMPs. This is a relatively simple but powerful legislative mechanism engaging with the right to menstrual health that makes RMPs, although generally more expensive, more accessible. Implementing this legislation Australia-wide would minimise the experience of period poverty and enable menstruators of any economic status to participate in the transition to a circular economy. Notably, Scotland’s legislation also accommodates for rural and remote communities by embedding delivery options. ³⁴ This would be of significant advantage in Australia where, in remote communities, it is often difficult to access period products, and product prices are significantly higher than in metropolitan areas. ³⁵ Positive recognition of a right to menstrual health through legislation is essential to enabling the uptake of RMPs and in ensuring economic factors do not leave menstruators behind in a transition to a circular economy.

Addressing the questions of cost and inclusion

Concerns around the cost of providing menstrual products for free ³⁶ is comparable to providing and maintaining public bathrooms, ³⁷ a service generally seen as necessary. While it may seem counterintuitive to compare toilet facilities with the provision of RMPs, to a significant portion of the Australian population, menstrual products, whether reusable or disposable, are just as essential as toilet paper. Although RMPs may be more expensive than disposable products, since RMPs are not generally disposed of after one use, this could reduce maintenance of the required sanitary bins in public toilets. Further, there appears to be funding avenues for free products in communities. For example, the Australian government has announced funding for a 4-year, $12.5 million program to provide period products (including menstrual cups and period underwear) in remote Indigenous communities. ³⁸ Further, comparisons to the toilet paper industry indicate no need for concern that mandating free period products will diminish their market value. ³⁹ Even so, menstrual products are a necessity, not just a market product and, considering the supply of RMPs is part of transitioning to a circular economy, the costs are worthwhile.

Nonetheless, exclusively supplying RMPs may not always be preferred by menstruators. While environmental factors influence product choice, ⁴⁰ not all menstruators can use RMPs, whether due to lack of privacy spaces, safety or other cultural factors. A right to menstrual health would require that, even in a transition to a circular economy, menstruators should not be forced to use RMPs – rather, a right to menstrual health would ensure menstruators can choose between reusable or disposable products. This could be incorporated in legislation; for example, guidelines to the Free Provision Act recommend that one of each product types is provided – a tampon, pad and reusable product. ⁴¹ The guidelines also outline that responsible bodies are encouraged to consider ways to make RMPs free, but to not pressure menstruators to use them. ⁴² Further, being able to choose between disposable and reusable products will not necessarily prevent a transition to a circular economy. For example, legislation could mandate that ‘environmentally safe’ disposable products are also provided. ⁴³ This could be implemented in current school-based initiatives, by awarding contracts to sustainable manufacturers, or for sustainable products. Engaging with a right to menstrual health is a flexible and powerful mechanism that can ensure free product legislation provides for an inclusive transition to a circular economy.

Beyond the products

Despite the advantages of free product legislation, it only addresses one aspect of menstrual health. A right to menstrual health requires scrutinising current policies by acknowledging ‘the broader environmental, economic, and structural determinants of the quality of health’. ⁴⁴ Therefore, this section will catalogue how the right to menstrual health can increase the uptake of RMPs by addressing other menstrual health factors such as stigma, education and sanitation. This part of the article also considers the intersection of health and the environment.

Stigma and education

Achieving menstrual health requires positive experiences in relation to the menstrual cycle, free from stigma. ⁴⁵ A right to menstrual health arguably requires that RMPs can be used without stigma. However, menstruation still carries a stigma which may impede the uptake of RMPs. ⁴⁶ RMPs such as menstrual cups (which are inserted and later removed) require menstruators to intimately navigate their body which, while it can be a body-positive experience, can also be a confrontation with menstrual blood. ⁴⁷ Stigmatised notions of blood being a ‘pollutant’, ⁴⁸ and the wavering cultural acceptability ⁴⁹ of RMPs requires intervention to ensure a transition to a zero-waste economy. While the law alone cannot undo stigma, it can trigger social change. ⁵⁰ For example, an established right to menstrual health could justify reform of anti-discrimination legislation to better consider menstruation as an attribute for discrimination. ⁵¹ Although this may not eradicate menstrual stigma, it could spark critical conversations about menstrual health in Australian society, ⁵² providing space for discussion of RMPs. This is critical for the uptake of RMPs, particularly where menstruators have become accustomed to the convenience of single-use products. ⁵³ Engaging with a right to menstrual health, on any regulatory level, can assist in facilitating conversations about menstruation and using RMPs.

Achieving menstrual health requires having information about menstruation and hygiene practices ⁵⁴ and therefore, even if RMPs gain acceptance, menstruators should have the available information to know how to safely use and clean RMPs. While learning about menstruation at school could be one way to be educated about RMPs, the current Australian curriculum is lacking, with ‘gaps in how and when menstrual education is taught’. ⁵⁵ In Australia, there is a clear need for education on the use of period products. ⁵⁶ While the Therapeutic Goods Administration (TGA) requires items such as menstrual cups to have an ‘information leaflet’, ⁵⁷ this may not be enough. Therefore, a right to menstrual health would call for reforms to increase awareness and education on the safe use of RMPs. A right to menstrual health also calls on the creation of informative menstrual education; such education must be culturally appropriate and cater for remote and regional Indigenous population. ⁵⁸ Ultimately, engaging with a right to menstrual health requires adequate information and education around RMPs to allow for and encourage their safe use.

Sanitation

A key barrier to using RMPs may be a menstruator’s inability to facilitate washing of the product. Without being able to properly wash RMPs, menstruators are denied menstrual health which requires the provision of

supportive facilities and services, including water, sanitation and hygiene services, for washing the body and hands, changing menstrual materials, and cleaning and/or disposing of used materials. ⁵⁹

Many menstruators do not have access to these facilities and services. For example, research by Krusz et al highlighted that Indigenous girls in remote locations cannot change their pad at school as there is often no rubbish bin, soap, running water, toilets that flush or privacy. ⁶⁰ Further, some women experiencing homelessness or other unstable circumstances may have difficulty in cleaning RMPs due to a change in living situation, and a lack of privacy in shared facilities. ⁶¹ It is critical to be able to access suitable facilities to clean RMPs, as the improper use or washing of RMPs may result in health complications (such as infection), ⁶² interfering with the ability to achieve menstrual health. Inadequate sanitation facilities clearly contravene a right to menstrual health; addressing issues of sanitation and privacy will allow the dignified and hygienic use of RMPs.

Sanitation can be addressed through legislative and soft-law mechanisms. As an example, the Access Act aims to improve ‘access to toilets, handwashing facilities and sanitary waste facilities’. ⁶³ The Access Act, however, does not explicitly mandate suitable facilities for menstruators but incites ‘principles of dignity’ to be considered. ⁶⁴ These principles align with and reflect not only the health but socioeconomic complexities of legislating around menstrual health. Further, soft-law mechanisms that are part of a positive right to health, such as reporting, policy or capacity building, ⁶⁵ can hold institutions accountable under a right to menstrual health. If legislation mandated the provision of RMPs, a right to menstrual health would also require that building standards and codes accommodate this and would ensure bathrooms have suitable wash facilities for RMPs such as menstrual cups. Engaging with a right to menstrual health can address basic sanitation and privacy needs required to use RMPs, promoting a safe and dignified transition to a circular economy.

Accountability: Health and the environment

Linked to the concept of a right to a healthy environment, transitioning to a circular economy is futile if the environmental effects of RMPs in turn harm the health of menstruators and further deny their right to menstrual health. A right to menstrual health requires accountability for the use and production of RMPs to ensure the effects of using such products do not impede menstrual health. Even if accessibility, stigma, education and sanitation are addressed, the uptake of RMPs must still be accountable to environmental impacts. RMPs produce a different kind of environmental impact, particularly through water usage (washing, boiling, etc) and then the eventual disposal of the product. ⁶⁶ Of particular concern is the disposal of RMPs; products like reusable menstrual cups are made from silicone, which eventually end up in landfill and, if made of medical-grade silicone, are difficult to decompose, ⁶⁷ or recycle. Improper disposal of RMPs may lead to the release of other pollutants associated with health problems. ⁶⁸ If disposing of RMPs results in health problems for menstruators, this interferes with their right to menstrual health. Engaging with a right to menstrual health can hold to account regulatory measures over waste management and improve the environmental impact of disposing RMPs. This in line with the overarching goals of a circular economy.

There are also concerns of possible toxins or irritating ingredients found in both disposable period products and RMPs that may harm users and the environment. ⁶⁹ Despite this, the TGA does not require menstrual products to list ingredients, and most menstrual products are excluded from TGA regulatory frameworks as they are considered ‘low-risk’. ⁷⁰ Engaging in a right to menstrual health would require that accountability be taken, and transparency of ingredients provided so menstruators can make informed decisions about the environmental and health impacts of RMPs (or any period product). Therefore, while RMPs do have a significantly lower environmental impact than their disposable counterparts, ⁷¹ a right to menstrual health requires accountability for the safety of menstruators and therefore consideration of the environmental health effects of RMPs. Nonetheless, it is essential not to thoughtlessly mandate the use of RMPs, particularly when they may have harmful environmental and health effects. It is critical for further research to investigate the environmental impacts of manufacturing and discarding reusable products. ⁷² Ultimately, a right to menstrual health draws critical attention to issues that, if addressed, can ensure the safe uptake of RMPs to promote a transition to circular menstruation, and the broader circular economy – a policy framework with universal benefits.

Conclusion

A right to menstrual health ensures menstruators are not overlooked by law and policymakers in the transition to a circular economy. Recognising that cost is a key barrier to accessing RMPs, this article has examined how free product legislation can address violations of a right to menstrual health. However, engaging with a right to menstrual health requires addressing issues beyond product accessibility. The normative characteristics of a right to menstrual health can assist in addressing stigma, education and sanitation barriers. Critically, the accountability mechanism of a right to menstrual health brings attention to whether environmental impacts on RMPs may in turn harm menstrual health. Ultimately, engaging with a right to menstrual health ensures consideration of the complexities associated with the uptake of RMPs. This article has outlined a critical perspective on transitioning to a circular economy and ultimately calls for mechanisms to ensure that menstruators are at the forefront of legal and policy frameworks.