Abstract

Excerpted From: Bridget J. Crawford , Pink Tax and Other Tropes , 34 Yale Journal of Law & Feminism 88 (2023) (437 Footnotes) (Full Document)

In both scholarly and popular literature, the phrase “pink tax” describes many of the gendered economic or fiscal inequalities illustrated by the Jane and Jerry hypotheticals. These include (1) the gender wage gap; (2) gender-based pricing differentials in goods or services; (3) extra expenses to secure transportation because of gender-related personal safety concerns; and (4) literal taxes on menstrual products. Through the lens of the “pink tax,” this Article catalogues and evaluates what makes for effective tax talk, in terms of impact on the law and day-to-day actions on the ground.

This Article makes three principal claims--one descriptive, one empirical, and one normative. First it develops a taxonomy of tax phrases, based on the object of critique and grammatical form. The purpose is not to engage in linguistic analysis, though; the aim is to understand how tax-related language is or is not linked to the law and taxpayer behavior. A comparative content analysis of multiple print source data sets facilitates analysis of the “success” of the phrases “nanny tax,” “death tax,” “soda tax,” “Black tax,” and “pink tax” as measured by frequency of use, links to legal reform, and impacts on taxpayer behavior. The Article argues that tax tropes that deploy suggestive modifiers to describe literal taxes are more effective than those that allude to identity axes associated with figurative taxes. For that reason, advocates for gender equality should be especially cautious in deploying the “pink tax” trope. Only some rhetorical deployments of “pink tax” talk are likely to lead to law reform.

For some critics, all “pink tax” rhetoric may seem hyperbolic. After all, the differences between Jane and Jerry's expenditures could be easily dismissed as mere pennies (in the case of the razors), attributable to an “inherent” difference ($10.98 pre-tax for menstrual products), or the product of personal choice ($4.56 for the taxi). And while the $25 price difference in the scooters is puzzling, it is mentally convenient to attribute that price disparity to either idiosyncratic practices (perhaps the store made a mistake) or some rational, market-based response (perhaps there is more demand for pink scooters than red scooters, or pink paint is more expensive than red paint).

Indeed, one can point to a variety of analogous situations where tax rhetoric is entirely absent. In common parlance, a classmate with poor eyesight does not pay a “myopia tax” when buying glasses. A coworker does not pay a “tissue tax” to manage their runny nose. The partygoer does not pay a “taxi tax” to arrive at the party on time when trains are running behind schedule. But when an artist with cerebral palsy purchases a wheelchair to allow him to leave the house, or when he pays out of pocket for medical massages that are not covered by insurance, he might call that a “crip tax.” And when a trans person has difficulty getting a bank to retitle her account, despite proof of a legal name change, she may call that a “trans tax.” Thus, tax talk is more than a mere description of economic disparities that one individual may experience at a single point in time. It attempts to capture expenses and economic inequalities that add up both longitudinally (over the course of one person's lifetime) and when aggregated across an entire population (looking at total differentials at a particular point in time). To label expenses, experiences, or conditions a part of a “Black tax,” “pink tax,” “crip tax,” or “trans tax” is to denounce them as unfair because they are based on one's identity as a member of a distinct and historically disadvantaged group.

In developing the taxonomy of tax talk, Part I does not attempt to catalogue all tax phrases or even the most familiar ones. “Sin tax” refers to actual government duties imposed on cigarettes and alcohol. Phrases like “stamp tax” and “whiskey tax” may ring a bell to students of American history, too. A frequent contributor to social media may have demanded or paid the tongue-in-cheek “cat tax” for failing to observe particular internet norms. Far from being exhaustive, however, Part I uses four representative tax phrases--the “nanny tax,” “death tax,” “soda tax,” and “Black tax”--to build a basic taxonomy of tax talk. Terms are classified both with reference to the type of inequality the phrase describes and its linguistic construction. At an initial level, tax talk may take aim at literal taxes: government-imposed duties. Conversely, tax talk may target figurative taxes: burdens akin to government-imposed duties, but either not imposed by the government or not financial, or both. After making this initial classification, one may discern synecdochic tax talk: the use of a word to modify “tax,” where the modifier is a constituent part of a larger relationship, event, or transaction subject to taxation (e.g., “nanny tax,” “death tax,” “soda tax”). Other tax talk is metonymic: it also deploys a word to modify “tax,” but the modifier is closely associated with the persons subject to tax (e.g., “Black tax”). Note that the metonymic “Black tax” can refer to literal or figurative taxes; thus discussion of this phrase sets the stage for Part II's analysis of the multiple uses of the phrase “pink tax,” many of which are illustrated by the Jane and Jerry hypotheticals above. All of these phrases together are what this Article calls tax tropes--grammatical constructions that use one of the words (either “tax” or the modifier) in a way that is not technically accurate.

Building on the developed taxonomy of tax tropes, Part III then engages in an empirical evaluation of the frequency with which each tax phrase is used. Part IV extends that analysis to additional data sets in order to provisionally evaluate the comparative “success” of each tax trope. While there are many possible measures of a tax trope's “success,” including how well the average person understands the term's meaning, this study instead engages in a content analysis of two databases of print sources to determine how frequently each tax trope appears in popular and scholarly literature. It then considers what impact, if any, the trope has had on legal reform and taxpayer behavior. Measured along these three axes, this Article concludes that synecdochic tropes for literal taxes tend to be more “successful” than metonymic tropes for figurative taxes.

Part V then turns to normative recommendations for how gender equality advocates might cautiously deploy “pink tax” tropes; it offers related suggestions for advocates for allied movements for disability rights and trans rights. Given the multiple meanings of the “pink tax” and its lack of connection to direct legal change, though, advocates might consider dropping this form of tax talk in favor of more precise language and specific legislative proposals. For journalists, scholars, and others, the “pink tax” can be an effective shorthand; phrases like “Black tax,” “pink tax,” “crip tax,” and “trans tax” can also foster a sense of community awareness. Yet concrete legal change requires greater clarity than figurative tax talk can provide in naming and norming a vision for the future.

[ . . .]

Whether describing literal or figurative taxes, the “pink tax” trope is both consistent with, and more complicated than, tropes like the “nanny tax,” “death tax,” “soda tax,” and “Black tax.” Only one form of the “pink tax,” the one that is synonymous with the “tampon tax,” has a clear and ready solution: repeal the sales tax on menstrual products. The other forms of the “pink tax” persist despite applicable laws, as is the case with the gender wage gap, have far less clear legal solutions, such as spending for safety-related travel or other “extras,” or they might not properly be subject to direct legislation at all, as in the case of disproportionate time burdens on those responsible for households or caregiving or gender-based price differentials (at least for those who consider the phenomenon a reflection of the realities of the marketplace, not a manifestation of discrimination).

Given that “pink tax” tropes are useful shorthand for some manifestations of gender inequality, it is not necessary to spurn them entirely. In both popular and academic literature, they have communicative value. At the same time, though, it is important to recognize the limited instrumental legal value of tax talk about figurative taxes (e.g., the claim that something is like a tax), as opposed to metonymic references to literal taxes, where single words like “nanny,” “death,” “soda,” or “tampon,” for example, gesture in a concrete and provocative way toward the larger event, relationship or product being (literally) taxed.

Consider also whether even as an in-group term, equality advocates might want to drop entirely labels like “Black tax,” “pink tax,” “crip tax,” or “trans tax.” After all, as synecdochic tax tropes, these terms rely on associations that are reductive of a full range of human experiences. Moving to a more neutral trope, such as “gender tax” instead of “pink tax,” would have the salutary impact of slipping free of the presumption that pink is for “girls” and “women” and blue is for “boys” and “men,” or that those gender binaries have significant ongoing utility. In the case of the “pink tax,” rejecting the term itself might be one step toward gender equality.

Gender equality jurisprudence, broadly understood, necessarily and properly rejects deeply rooted stereotypes about what “men” and “women” are capable of doing or accomplishing. Just as gender equality jurisprudence evolves, so does the language it uses. What was initially known as “sex discrimination” came to be known as “gender discrimination.” And in 2020, the Supreme Court ruled that, at least in the context of Title VII, an employee's protection from discrimination on the basis of “sex” includes protection against discrimination on account of sexual orientation or being transgender. Reasoning in the same vein, advocates should consider untethering the “pink tax” metaphor from the gender binary so as to avoid association with gender stereotypes. More precise language to target specific harms is possible. So is inclusion.

*****

Bridget J. Crawford is a University Distinguished Professor of Law at the Elisabeth Haub School of Law at Pace University.