23 Feb Gloves are Sexy, But Are They Sexist?
That’s the question, sort of, raised in Totes-Isotoner v. United States, the most interesting tariff classification case you will ever read. Under the Harmonized Tariff Schedule, men’s glove have a tariff rate of 14 percent whereas gloves “for other persons” have a rate of 12.6 percent. An importer of gloves, Totes-Isotoner, argues that these duties unconstitutionally discriminate on the basis of sex.
The government raised several handy little arguments which the Federal Circuit quickly rejected. It argued that Totes lacked standing because every glove importer pays the same duty rate, and therefore Totes has suffered no injury-in-fact. Discriminate equally and there’s no discrimination! As long as you refuse service to every black customer, no black customer has room to complain. The Court described this argument as “frivolous” noting that “equal protection requirements still apply even though everyone in the targeted group is targeted equally.”
That conclusion went hand in glove with the next, which addressed whether discriminatory duties on gloves raised a political question. Imagine the embarrassment if we have multifarious pronouncements on the duty rate of gloves! The Federal Circuit rejected the argument out of hand, finding that “none of the cases cited by the government remotely holds or even implies that the federal courts are barred by the political question doctrine from reviewing federal statutes for compliance with equal protection guarantees.”
As to the key question of whether the duty rate on gloves unconstitutionally discriminates against men, the Court of International Trade said no because everyone cross-dresses these days anyway: men buy women’s gloves and women buy men’s gloves. “This … entirely misses the point,” said the Federal Circuit. “There is no serious dispute that men’s gloves are typically purchased for use by men and women’s gloves, for women.”
In the end the key question was not whether the differential duty rate had a disparate impact on men, but whether “Congress intended to discriminate against men in the tariff schedule.” Totes, of course, did not allege facts sufficient to infer a government purpose to discriminate against men. I’m not sure exactly what evidence that would be: a searching inquiry into the minds of government bureaucrats who write the tariff schedules to determine if they have special animus towards men, or men’s hands?
So men everywhere will continue to suffer in silence, going gloveless or paying an offensive and invidious 1.4 percent more on their beloved gloves. Meanwhile women will don their gloves at discriminatory prices, and continue to enjoy the kid glove treatment.