The New York City Department of Consumer Affairs (“DCA”), the organization responsible for maintaining a fair and vibrant marketplace, conducted its first-ever study of the gender pricing of goods in New York City across multiple industries and the results are particularly damning for women. The DCA compared nearly 800 products with clear male and female versions from more than 90 brands sold at two dozen New York City retailers, both online and in brick and mortar stores. Such goods consisted of clothing (from retailers including American Apparel, Abercrombie, Banana Republic, Club Monaco, Gap, H&M, J. Crew, Levi’s, Uniqlo, and Urban Outfitters, etc.), cosmetics, and accessories, among others. 

According to the DCA’s study: “Over the course of a woman’s life, the financial impact of gender-based pricing disparities is significant. In 1994, the State of California studied the issue of gender-based pricing of services and estimated that women effectively paid an annual ‘gender tax’ of approximately $1,351 for the same services as men. While the DCA’s study does not estimate an annual financial impact of gender pricing for goods, the findings of this study suggest women are paying thousands of dollars more over the course of their lives to purchase similar products as men.”

In all but five of the 35 product categories that the DCA analyzed, products for female consumers were priced higher than those for male consumers, and across the sample, women’s products cost more almost half of the time. According to the DCA’s findings: “Babies’ and children’s products had the least pricing discrepancies, adult personal care products the most, and adult clothing was in the middle.” With this in mind, “over the course of a female consumer’s lifetime, these discrepancies would have a much larger financial impact, given that, on average, personal care products cost 13 percent more for women than men.”

Across all five industries, the DCA found that women’s products cost 7 percent more than similar products for men. In particular, women’s versions retail for 7 percent more for toys and accessories than their male equivalents; 4 percent more for children’s clothing; 8 percent more for adult clothing; 13 percent more for personal care products; and 8 percent more for senior/home health care products.

Such differentiations do not exist solely in terms of retail price, however. Prior to even hitting shelves, goods are subject to gender-specific import taxes. As noted by the DCA, the difference in import taxes that exist between men’s and women’s apparel, in particular, is quite significant. Women in the U.S. pay systematically higher tariffs (the fees the U.S. charges to import goods from other countries and which are set by the U.S. government) for imported apparel than their male counterparts, according to a 2015 study from the Bush School of Government and Public Service at Texas A&M University. While not all tariffs favor men, most do.

On average, women pay taxes that are 3 percent higher (15.1 percent) than those paid by men (11.9 percent). Lori Taylor, an associate professor and director of the Mosbacher Institute for Trade, Economics and Public Policy at the Bush School, said in connection with the study, “The tariff on women’s silk shirts, for example, is six times the tariff on men’s silk shirts. And our research has shown that he average tariff rate for women’s apparel is systematically higher than the average tariff rate for men’s apparel.”

Such disparities have not gone unlitigated. In 2007, for instance, Totes-Isotoner Corp., a gloves maker, filed what has become a landmark case of sorts in the field, alleging that customs duty rates for leather gloves that differ between the sexes unfairly discriminate on the basis of gender. In that case, the appeals court ultimately held that duties that are higher for one gender than another are not facially discriminatory under the Equal Protection Clause of the Constitution.

Since then, several major apparel and accessories brands, including Steve Madden, Asics and Columbia Sportswear, have filed suit against the U.S. government in connection with what they allege is discriminatory gender-based tariffs. The companies each aimed to secure a ruling that the duties were unconstitutional. However, in the Forever 21 case, for example, the Federal Circuit held that there could be different reasons for the varying duties other than discrimination, and the Supreme Court ultimately rejected an appeal of that ruling.

Still, a number of other lawsuits have followed, including one initiated by fast fashion retail giant, Forever 21, in which the U.S. Court of International Trade held that Forever 21 failed to show any intent by Congress to discriminate through the Harmonized Tariff Schedule of the United States. Similarly, Century 21 relaunched an earlier bid to halt purportedly unconstitutional gender and age-specific tariffs on apparel and shoe imports in 2010 before the U.S. Court of International Trade. The retailer argued that the differing duty rates are tantamount to discrimination. The suit came almost exactly two years after Century 21 sued the U.S. in the Court of International Trade on largely identical claims.

To date, these lawsuits have all largely run relatively similar courses with the courts holding that the plaintiffs have fallen short of proving lawmakers had any discriminatory intent in enacting different tariffs rate. As a result, the arguably discriminatory tariff rates have remained in tact.