Gender-based distortions in treatment, especially in the labor market, are undoubtedly a highly topical issue, with repeated studies demonstrating the structural and social obstacles faced by women in achieving the equality of opportunities and treatment desired, not only in the professional but also in the social field.
There are also countless studies that demonstrate the benefits of diversity in corporate environments and in a company's productivity, but we are still far from equity in the evolution of professional careers between men and women. Women are outnumbered by men in leadership positions and roles, not only in business, but also in the civil service and politics.
Although eliminating the causes of this distortion does not depend solely on the legislator, an equity-oriented legal system plays a key role in this mission. The reverse is also true, i.e. a system that deepens distortions is immensely damaging and should be exposed.
In this context and exemplifying the benefits of a legal system oriented towards equity, the recent declaration of unconstitutionality, by the STF, of the levy on the employer's social security contribution in maternity leave pay deserves to be highlighted. The decision was rendered in the judgment of Extraordinary Appeal No. 576.967/PR under the general repercussion system for admitting appeals. What it judges and condemns, in essence, is the discrimination and prejudice that causes discriminatory charges arising from hiring a woman, that is, at the base of corporate careers: hiring women is arguably more expensive than hiring men. And the STF has taken a step in neutralizing the harms of an inequitable system.
From a purely technical standpoint, it was established that, as maternity leave pay is a social security benefit, it is not of the nature of consideration for work performed. This led to the understanding that maternity leave pay cannot be included in the calculation basis of the social security contribution borne by the employer.
The judgment brought in an important reflection by the Supreme Court regarding the application, ultimately, of the principles that guide the democratic rule of law. There is a specific direction in the majority opinion, by Justice Luis Roberto Barroso, towards:
- the need for unburdening the female workforce as a way to implement the principle of equal protection between men and women;
- the impossibility of burdening the individual in the Brazilian social security system due to a circumstance or fact of life that is peculiar to him/her for biological reasons, in this case, the exclusive capacity of women to become pregnant;
- the exclusion of taxation on maternity leave pay favors equal protection, the protection of motherhood and the family, in addition to reducing discrimination between men and women in the labor market.
Although the analysis is restricted to the context of labor relations, the opinion draws attention to another type of distinction in the treatment of men and women not yet widely discussed in Brazil: the more onerous taxation of women than men.
Recently, the Research Group on Taxation and Gender, linked to the Tax Law Center of the Getulio Vargas Foundation's São Paulo School of Law,[1] conducted a deep analysis in a study called "Tax Reform and Gender Inequality",[2] which presented suggestions for amendments to existing reform proposals in order to contemplate the promotion of gender equality through the instrument of taxation.
Usually called tax women or pink tax, studies on the subject expose the unequal treatment in the pricing of products intended for the female audience by clear marketing strategy,[3] which attracts for them levying of a higher tax burden.
The high tax burden is due to the classification of these products as non-essential or superfluous, although they may be related to: (i) women's physiological needs; (ii) female empowerment; or (iii) demands socially imposed on women.
Added to this the fact that, in most situations, products that are essential for women have no equivalent in the male world. This is the case, for example, with sanitary pads. This item is of indispensable use due to the physiological condition of women. There is no substitute with a lower tax burden.
According to the “taxmeter", on February 14, 2021,[4] the tax burden levied on sanitary pads was 34.48%, comparable to products such as chewing gum (34.24%) or higher than for others, such as stuffed animals (29.92%).
The direct reflection of high taxation is the inaccessibility of these products for low-income women, which is not alleviated by supply in the public health system. A survey of 9,062 women conducted by a sanitary pad brand[5] shows that, in the 12-14 age group, 22% of girls say they don't have access to reliable menstrual products because they can't afford them or the products are not sold close to home. The percentage rises to 26% among women between 15 and 17 years old and drops to 19% in the 18 to 25 age group.
In addition to affecting women's health, the high taxes levied on this essential consumer product unquestionably entail clear restrictions on social, professional, and educational life. In fact, without access to the item and forced to resort to unsuitable substitutes, many women and adolescents stop leaving their homes out of fear, insecurity, and discomfort.
The high tax burden imposed on cosmetic products, especially on makeup, has equally relevant impacts on the social context and on the labor market itself. According to the taxmeter on February 14, 2021, the tax burden levied on makeup items varied from 51.41% (domestic) to 69.53% (imported). As a counterpoint, the tax burden applied on over products designed for the male public was much lighter, such as shaving cream (42,56%), suits (34,67%), or ties (35,48%).
The discrepancy becomes more evident when taxation on makeup is compared to that levied, for example, on a soccer team jersey (34.67%) or an electric razor (48.11%).
The origin lies in the erroneous classification of makeup items as "superfluous products" and cannot be explained if not by the distancing by tax authorities and legislators from the needs of the female social and professional universes. Women who deal directly with the public in their work, such as receptionists, secretaries, salespeople, stewardesses, or even those who assume high positions in companies, such as officers, executives, and managers are compelled, for cultural reasons and social or corporate codes, to present themselves with makeup.
There are cases recognized in precedents of the Labor Court in which the employer must bear the burden resulting from the use of makeup because it is imposed for the exercise of the function, as is the case of stewardesses. There are, however, dress and presentation codes that, although unwritten, are equally imposed and unquestionably obeyed by women in the most varied of social segments, jobs, and positions, inside and outside the work context.
In addition to meeting social and professional codes, the function of makeup is at the service of female empowerment, by raising the self-esteem of women and making them feel more secure in performing their professional and social activities. Mascara and a lipstick are often enough to make a woman feel more at ease at work or even at a social event.
In this sense, makeup can and is in fact used by many women as protection against the gender inequality rooted in our society. Therefore, its qualification as a superfluous item is rejected. On the contrary, in general it is essential for women, as it supports their self-esteem and, at the same time, allows them to comply with social and professional codes.
This topic has been frequently discussed on social networks and in the media in general, with great engagement on the part of cosmetic product brands.
Besides the benefit associated with women's self-esteem, the labor market related to the makeup sector itself employs mostly self-employed women, providing them with financial capacity. This fact points to another factor of social discrimination, which stems from the serious consequences of the high tax burden imposed on these products.
With these brief considerations, one can see how the tax law directly interferes, and to some extent encourages, differentiation between genders, albeit in a veiled and little discussed manner. This is because the principles of selectivity and essentiality are being applied in an erroneous manner, far removed from the current reality of society, and not guided by the imperative of gender equity.
Although significant and emblematic, the two examples addressed here do not exhaust the issue of distinction between genders in light of taxation. Other equally relevant examples have been debated and deepened by the studies Tax Women or Pink Tax and, also, by the Research Group on Taxation and Gender, linked to the Tax Law Center of the Law School of the Getulio Vargas Foundation in São Paulo.[6]
It is therefore indispensable to approve bills directed at the accomplishment of a fair and neutral tax system, that preserves and promotes substantive equality of genders, exactly as assured by articles 3, 5, I, 145, paragraph 1, and 150, II, of the Federal Constitution.
[1] Group coordinated by professors Tathiane Piscitelli, Núbia Nette Alves Oliveira de Castilhos, Andalessia Lana Borges Camara, and Simone Castro.
[2] https://direitosp.fgv.br/sites/direitosp.fgv.br/files/arquivos/reforma_e_genero_-_sumario_executivo.pdf
[3] This is the case, for example, of razor blades which, despite similar functionality, are priced higher when targeting the female audience. In the same sense, shampoos designed for women tend to be more expensive, although produced by the same brands as those designed for men.
[4] https://impostometro.com.br/home/relacaoprodutos
[5] https://revistamarieclaire.globo.com/Comportamento/noticia/2020/01/isencao-de-impostos-sobre-absorventes-menstruais-e-nova-luta-feminista.html
[6] In this context, there are examples of the tax system on child support, the impacts of the regressive taxation system on women, with the concentration of the tax burden on consumption (and not on income), and the taxation on household essentials, often under women's responsibility.
