1âIntroduction
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 âflawsâ. 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 âequalâ to the ones provided by men. This phenomenon is referred to as the âgender wage gapâ. 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 âminorâ3 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 âpink taxâ and âtampon taxâ 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 womenâs sanitary protection products, which are deemed to be âluxury itemsâ.
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 âtaxesâ. First, a demarcation of the terms âgenderâ and âsexâ, 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 âtaxesâ 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 âpink taxâ and âtampon taxâ are deemed to be more appropriate than the other terms used, i.e. âwomen taxâ and âgender taxâ. It is stated that âpink taxâ 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 âtampon taxâ should be adopted as the proper term designating the consumption tax levied on womenâs sanitary protection products (Chapter III).
The second stage consists of examining the two concepts separately. First, the rationale behind âpink taxâ 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 soâcalled âpink taxâ can legally be qualified as a âtaxâ. It is concluded that âpink taxâ is not a tax in the legal sense but produces the same economic effect as a fully hidden selective consumption tax (Chapter V). Second, âtampon taxâ, 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 âbad taxesâ 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 âSex-Based Pricing Repeal Actâ, and the tampon tax can be either alleviated or eliminated simply by reducing the consumption tax rate applied to womenâs 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).
2 Gender versus sex
A Need for distinction
The terms âgenderâ and âsexâ tend to be used as equivalents. To many, âmaleâ and âmasculineâ are interchangeable words, just like âfemaleâ and âfeminineâ 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, âsexâ and âgenderâ may simply be covered by a single term.1 Last but not least, the term âgenderâ may be considered as âmore convenientâ. For instance, Ruth Bader Ginsburg, one of the first litigators of US Supreme Court sex discrimination cases in the 1970s, stated that â[f]or impressionable minds the word âsexâ may conjure up improper imagesâ.2 Ginsburg thereby found it more fitting to use the term âgenderâ, which â[would] ward off distracting associationsâ while remaining grammatically correct.3
Regardless of the underlying reasons, it is clear that such a use is far from being accurate. âGenderâ and âsexâ are entirely different concepts, and not distinguishing between them creates an âunfortunate terminological gapâ.4 Such a âgapâ 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 âsexâ and âgenderâ 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 âa surgical procedure involving the alteration of a personâs reproductive organsâ. It derives from this definition that âsexâ is to be determined only in accordance with a personâs 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: âThe term âsexâ [âŠ] refers to an individualâs distinguishing biological or anatomical characteristics, whereas the term âgenderâ refers to an individualâs sexual identityâ.8
The elucidation made by the Court is compliant â to a great extent â with the meanings attributed to the terms by other social sciences. Although âsexâ and âgenderâ 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 âbiological labelsâ 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 âgenderâ is built upon this bipolar construct: two different sexes give rise to two different genders: masculine and feminine. What is being understood by âmasculineâ and âfeminineâ 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 âproper genderâ. Needless to state, there are exception...