Pink Tax and the Law

Discriminating Against Women Consumers

Alara Efsun Yazıcıoğlu

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429944574
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The emergence of the terms 'pink tax' and 'tampon tax' in everyday language suggests that women, who already suffer from an economic disadvantage due to the gender wage gap, are put in an even more detrimental position by means of 'discriminatory consumption taxes'. This book is the first conducting a legal analysis to establish to what extent this public perception is accurate.

Does the practice of 'pink tax' effectively amount to a tax in the legal sense? Does the so-called 'tampon tax' genuinely constitute an anomaly within the general consumption tax system? Most importantly, can these two 'taxes' be legally qualified as discriminatory?

This book provides scientific answers to these questions. It first cuts through the existent information clutter by elucidating the pertinent economic, sociological and psychological components of the practices referred to as 'pink tax' and 'tampon tax'. It then proceeds with a thorough legal analysis of all relevant aspects to determine whether women are indeed subject to discriminatory consumption taxes.

It is well-established that women earn less than men. This book investigates if they simultaneously pay more due to 'discriminatory consumption taxes'.

1 Introduction

Women earn less than men, and not only due to lack of proper education, heavy burden of unpaid housework they mostly carry alone, low-skilled (and thereby low-wage) jobs that are made predominantly available to them or gender stereotypes constantly undermining their qualities while inflating their ‘flaws’. Women earn less even when they overcome all the social, economic and psychological disadvantages, work in high-skilled jobs and provide services, the quality of which is considered to be ‘equal’ to the ones provided by men. This phenomenon is referred to as the ‘gender wage gap’. As established by the indicators prepared by the OECD,¹ the gender wage gap exists in almost every country, may it be as consequential as 36.7%² or as ‘minor’³ as 1.8%.⁴ In January 2018, Iceland has become the first country in the world to enact a specific law aiming to counteract the gender wage gap. The practice is expected to be entirely eradicated in the country by 2022. Other countries do not seem to follow its example, at least for the moment.⁵

The emergence of the terms ‘pink tax’ and ‘tampon tax’ in everyday language suggests that women may also be paying more than men. The terms refer to the additional amounts paid by women to purchase goods and services that are substantially similar to the ones acquired by men at lower prices and to the consumption tax collected on women’s sanitary protection products, which are deemed to be ‘luxury items’.

To examine whether the public perception is accurate, this book begins by elucidating the proper terminology that needs to be used in the analysis of the two ‘taxes’. First, a demarcation of the terms ‘gender’ and ‘sex’, which are commonly, yet inaccurately, used as equivalents, is made. The distinction is important, especially in the area of discrimination (Chapter II). Second, the different terms used in everyday language to designate the ‘taxes’ concerned are examined one by one. It is established that a variety of terms are used interchangeably in relation to two different practices which cannot possibly be designated by the same name and/or regrouped under an umbrella term. The terms ‘pink tax’ and ‘tampon tax’ are deemed to be more appropriate than the other terms used, i.e. ‘women tax’ and ‘gender tax’. It is stated that ‘pink tax’ should be exclusively used to refer to the additional amounts collected from women consumers during the purchase of a wide range of products and services available on the market and ‘tampon tax’ should be adopted as the proper term designating the consumption tax levied on women’s sanitary protection products (Chapter III).

The second stage consists of examining the two concepts separately. First, the rationale behind ‘pink tax’ is established by means of the underlying social, economic and psychological factors (Chapter IV). Once the intrinsic characteristics of the concept are determined with certainty, a tax law analysis is conducted to figure out whether the so‑called ‘pink tax’ can legally be qualified as a ‘tax’. It is concluded that ‘pink tax’ is not a tax in the legal sense but produces the same economic effect as a fully hidden selective consumption tax (Chapter V). Second, ‘tampon tax’, which clearly is a consumption tax, is examined in the light of the main specificities of consumption taxes. It is demonstrated that the public reaction against the tax concerned is justified (Chapter VI).

The last part of the analysis concentrates on government intervention. Such an intervention is revealed to be necessary, since the practices concerned are untenable, they constitute ‘bad taxes’ and, most importantly, they amount to unlawful sex discrimination. A pink tax, expressly targeting women on the sole basis of their sex, amounts to direct sex discrimination. A tampon tax, submitting one sex (female) at a higher rate on purpose, constitutes an implicit bias inherent to the organizational structure of the tax. Both practices violate the principle of non-discrimination protected by constitutional norms and/or provisions of international treaties. Non-discrimination is also considered to constitute one of the general principles of law (Chapter VII).

This book concludes with the examination of the possible means of government intervention. It is argued that the pink tax can effectively be eliminated by adoption of a ‘Sex-Based Pricing Repeal Act’, and the tampon tax can be either alleviated or eliminated simply by reducing the consumption tax rate applied to women’s sanitary protection products. Depending on the concrete circumstances in a given country, it may also be advisable to keep the tampon tax and use the funds collected to support women in need (Chapter VII).

1OECD (2018), Gender wage gap (indicator), available online on the following link: https://data.oecd.org/earnwage/gender-wage-gap.htm [last accessed on 16 January 2018].

2Korea.

3The term ‘minor’ is exclusively used to demonstrate the contrast between the two countries. It is by no means intended to underestimate the wage gap.

4Costa Rica.

5March 2018.

2 Gender versus sex

A Need for distinction

The terms ‘gender’ and ‘sex’ tend to be used as equivalents. To many, ‘male’ and ‘masculine’ are interchangeable words, just like ‘female’ and ‘feminine’ are. This mostly holds true in the area of law as well. Attorneys, courts, and legislators as well as academic writers do not always proceed to a precise demarcation of these two terms.

This tendency may be due to several reasons. First, it may reveal to be more challenging to pinpoint whether a certain legal issue relates to sex, gender or both. Second, not all countries distinguish between the two notions in their own languages; accordingly, ‘sex’ and ‘gender’ may simply be covered by a single term.¹ Last but not least, the term ‘gender’ may be considered as ‘more convenient’. For instance, Ruth Bader Ginsburg, one of the first litigators of US Supreme Court sex discrimination cases in the 1970s, stated that “[f]or impressionable minds the word ‘sex’ may conjure up improper images”.² Ginsburg thereby found it more fitting to use the term ‘gender’, which “[would] ward off distracting associations” while remaining grammatically correct.³

Regardless of the underlying reasons, it is clear that such a use is far from being accurate. ‘Gender’ and ‘sex’ are entirely different concepts, and not distinguishing between them creates an “unfortunate terminological gap”.⁴ Such a ‘gap’ is highly likely to undermine the comprehension of the reasoning followed by academic authors and courts as well as the grasp of the exact scope of the laws and regulations enacted by legislators. In other words, the gap provokes confusion. This holds especially true in the area of discrimination. For this reason, the terms ‘sex’ and ‘gender’ will be carefully distinguished and be given their genuine meaning throughout this book.

B Definitions of gender and sex

The terms gender and sex are used in a number of domestic acts and statutes, most commonly in birth, death and marriages registration acts and gender recognition acts as well as non-discrimination provisions present in a variety of other acts and statutes, including constitutions. Nonetheless, these terms are not expressly defined in the acts and statutes incorporating them.⁵ Indirect definitions may, however, be given. For instance, article 32A of the Australian Births, Deaths and Marriages Registration Act⁶ defines sex affirmation procedure as “a surgical procedure involving the alteration of a person’s reproductive organs”. It derives from this definition that ‘sex’ is to be determined only in accordance with a person’s reproductive organs.

The lack of a definition given by the law compels the courts to provide for the definitions of these two terms in order to distinguish between them in cases where the delineation is essential to the case at hand. Such a necessity occurred, for instance, in Dobre v National RR Passenger Corp. (Amtrak).⁷ The competent court defined the concepts concerned as follows: “The term ‘sex’ […] refers to an individual’s distinguishing biological or anatomical characteristics, whereas the term ‘gender’ refers to an individual’s sexual identity”.⁸

The elucidation made by the Court is compliant – to a great extent – with the meanings attributed to the terms by other social sciences. Although ‘sex’ and ‘gender’ definitions adopted by different social sciences vary to a certain degree,⁹ all social sciences seem to agree on the basics. In a nutshell, sex refers to biological differences. Gender, on the other hand, refers to the cultural and social elements that are expected to be fulfilled by the members of a certain sex.¹⁰

Sex consists of the ‘biological labels’ put on human beings at the time of their birth on the basis of a number of anatomical criteria.¹¹ There are only two such biological labels: female and male.¹² This bipolar construct is universally acknowledged and does not diverge from country to country.¹³ The notion of ‘gender’ is built upon this bipolar construct: two different sexes give rise to two different genders: masculine and feminine. What is being understood by ‘masculine’ and ‘feminine’ derives from culture and social influences.¹⁴ Consequently, the behaviours and traits assigned to women and men may vary, at least to a certain extent, from country to country.¹⁵

As per the social constructionist view, gender is not an attribute of the person (i.e. it is not linked to biological factors) but a performance.¹⁶ In other words, gender is not something we are but something we do.¹⁷ Doing gender requires the fulfilment of both signifying elements and performance elements. A person assumes the signifying elements, such as clothing and hair style, and exhibits the performance elements, such as ways of talking and walking.¹⁸ While sex is something that a person has without making an effort, gender needs to be signalled and performed.¹⁹

It is traditionally assumed that females should demonstrate feminine characteristics and males should exhibit masculine characteristics. The majority of individuals opt for satisfying this social expectation related to their ‘proper gender’. Needless to state, there are exception...