Staining International Law

“Women are born with pain built in. It’s our physical destiny – period pains, sore boobs, childbirth. We carry it within ourselves throughout our lives.”

Belinda in Fleabag, Series 2, Episode 3, written by Phoebe Waller-Bridge

International human rights law has been slow to catch up with the visibility and rise of menstruation-based activism, policy, and legislation, which concerns tax reduction for menstrual products or the distribution of free products. This delayed international shift is a testament to the continuing stigmatization and taboo nature of the issue. However, menstruation and the menstrual cycle remain a factor in persisting gender inequality. Thus, this blog post argues that to ensure equality for women, girls, and all persons with a menstrual cycle, international human rights must become “stained”, i.e. ensure that everyone with a menstrual cycle can fully enjoy their human rights.

A Persisting Factor for Inequality

Period poverty, societal and cultural stigmas, and taboos limit women’s, girls’, and all persons’ with a menstrual cycle’s access to education, work, and public life. Period poverty is the inability to manage one’s menstruation because of limited access to menstrual products, menstrual education, and adequate hygiene facilities, especially water and sanitation. In the Global North, the concept is more limited, referring to the inability to afford menstrual products due to financial constraints. Internationally, period poverty gained new salience during the Covid-19 pandemic  (Crawford and Waldman, pp. 1576-1589, 1601-1604) and has been also exacerbated by climate change (Kuhlmann, pp. 8-10).

Without the tools and the structural setting to adequately manage one’s menstruation, girls and women miss school and work (Colussi, Hill and Baird, pp. 13-17). Societal stigmas and taboos may keep girls from going to school entirely after their menarche (the first occurrence of menstruation), or exclude persons from public life, while they are on their period (Mahon and Fernandes p. 104). Beyond this, period poverty and the inability to properly manage one’s menstruation have broader health repercussions: women and girls are forced to use improper and unhygienic items, like rags, newspaper, plants, improperly cleaned reusable products to absorb or collect menstrual blood. This can have severe health impacts ranging from infections of the reproductive and urinary tract to toxic shock syndrome, and infertility (Mahon and Fernandes p. 105).

Framing Menstruation and Menstrual Cycle within International Human Rights Law

The menstrual cycle and menstruation encompass the right to health, the rights to water and sanitation, non-discrimination, and gender equality (Winkler and Roaf, pp. 18-28). Yet, international human rights bodies have been slow in addressing menstrual matters and their approach remains limited and inadequate to address the menstrual cycle holistically.

Early assertions on menstrual matters by international human rights bodies only picked up on elements of menstruation as a human rights concern. Their ensuing approach cited the prevalence of stigmatization and exclusion (Working Group on the Issue of Discrimination against Women in Law and Practice, paras. 68-70);  prejudices and taboos of menstruation in society (Committee on Economic, Social and Cultural Rights, para. 48); and unsafe menstrual hygiene management for vulnerable groups [UN General Assembly, paras. 5(e)-(f), Committee on the Elimination of Disclination against Women, paras. 42, 43(h), 85(b)]. Menstrual hygiene management is the ability of women and adolescent girls to use clean menstrual management materials to absorb or collect menstrual blood, that can be changed in privacy as often as necessary for the duration of a menstrual period, to use soap and water for washing the body as required, and to have access to safe and convenient facilities to dispose of used menstrual management materials (WHO and UNICEF Joint Monitoring Programme for Water Supply and Sanitation, p. 16).

In 2021, the Human Rights Council (HRC) adopted its resolution on menstrual hygiene management, human rights, and gender equality. The Human Rights Council calls upon states that women and girls have access to adequate facilities, information and products for optimal and effective menstrual hygiene management (HRC Resolution, para. 1). The resolution remains the first and only international document that is solely focused on menstruation. It represents the long overdue integration of menstruation into international human rights and confirms menstruation as a gender equality issue. It tackles – prima facie – the most pressing issues of period poverty: access to affordable menstrual products, access to clean water, and adequate sanitation [HRC Resolution, paras. 1(a-d)]. Providing access to affordable menstrual products, water, and sanitation will provide much-needed support to ensure the affected women can partake in public life and mitigate negative health outcomes. Menstrual products should be sensitive to cultural and personal preferences [HRC Resolution, para. 1(a)]. This relates to insertable products, like tampons or menstrual cups, and the idea that they can destroy the hymen as the so-called physical proof of virginity claims. Products should also be environmentally friendly [HRC Resolution, para. 1(a)]. However, reusable products do not provide a universal solution. Cloth pads, period underwear, or menstrual cups avoid the trash produced by single-use products, but they require proper and sanitary washing, drying, and storage. Thus, where the latter cannot be guaranteed, especially in humanitarian settings, single-use products may be the safer choice. Additionally, while reusable products are more cost-effective in the long run, they have higher up-front costs and may remain unfordable when financial constraints apply.

A Human Rights Approach Based on Menstrual Health

Nevertheless, the current approach does not incorporate a holistic view of the menstrual cycle. The focus on menstrual hygiene management perpetuates stigma and misconceptions of menstruation as something unclean and unhygienic. The emphasis on menstruation limits the issue to three to five days of the menstrual cycle. Furthermore, it does not sufficiently consider the public health aspect of the menstrual cycle and period poverty (Babbar et al). While the HRC Resolution specifies that women and girls with disabilities and those in vulnerable situations should have free access to medical care and medicines to prevent, identify, and treat health issues relating to menstrual hygiene [HRC Resolution, para. 1(e)], it omits the broader menstrual health context for all persons with a menstrual cycle (Hennegan et al, p. 4). This neglects pain management, hormonal imbalances, and disorders like premenstrual dysphoric disorder (PMDD), endometriosis, or polycystic ovary syndrome (PCOS). Lastly, the resolution does use inclusive language.

To ensure a holistic approach to menstrual experiences and ensure the basic human rights of those with a menstrual cycle, international human rights law should address menstrual health instead of menstrual hygiene management. Menstrual health is 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’ (Hennegan et al, p. 2). Achieving menstrual health implies the ability of women, girls, and persons with a menstrual cycle to (1) access accurate, timely, age-appropriate information about the menstrual cycle and menstruation and related self-care and hygiene practices; (2) care for their bodies during menstruation such that their preferences, hygiene, comfort, privacy, and safety are supported; (3) access to timely diagnosis, treatment and care for menstrual cycle-related discomforts and disorders; (4) experience a positive and respectful environment in relation to the menstrual cycle, free from stigma and psychological distress; and (5) decide whether and how to participate in all spheres of life during all phases of the menstrual cycle, free from menstrual-related exclusion, restriction, discrimination, coercion, and/or violence (Hennegan et al, p. 2). While menstrual health is an integral part of reproductive and sexual health and rights, menstrual health must not be just seen as an extension of fertility. Health implications of the menstrual cycle, including amenorrhea, go beyond infertility and can also have long-term effects on bone health or increase the risk of breast cancer.

There are first signs of a shift embracing menstrual health within the UN human rights regime. The Working Group on the Discrimination of Women and Girls has adopted the concept in its 2021 report, which calls for measures to address menstrual health and pain management within humanitarian contexts (Report 2021, paras. 16, 32, 62). At the 2022 panel discussion on menstrual hygiene management convened by the Human Rights Council, the WHO and the then High Commissioner for Human Rights, Michele Bachelet, have explicitly used ‘menstrual health’, emphasizing its nature as an integral part of  sexual and reproductive health and rights and going beyond the hygiene frame.

Overall, international human rights bodies must continue to embrace menstrual health as the basis for their work on menstruation across the rights to health, water and sanitation, and gender equality. International human rights law can contribute to achieving menstrual health by confirming state obligations to remove barriers to menstrual health (Winkler, p. 41). Achieving menstrual health will enable the person with the menstrual cycle to fully enjoy their human rights.