In recent times, the gender perspective has permeated all aspects of our life in society, in order to achieve the changes essential to achieve real equality, and of course, tax matters are not alien to this analysis.
Indeed, gender-sensitive taxation is based on the constitutional principles of equality and tax capacity and on the right to property, enshrined in arts. 16, 17 and 75, paragraphs 19 and 22 of the National Constitution.
Also to be taken into account are Law No. 23.179, which approves the “Convention on the Elimination of All Forms of Discrimination against Women” and Law No. 26.485 on “Comprehensive Protection to Prevent, Punish and Eradicate Violence against Women,” which establishes the following types of violence: physical, psychological, sexual, symbolic, economic and political.
At this point we will consider symbolic violence, which refers to gender mandates and stereotypes, and economic violence, which manifests itself, among others, through different inequalities in women's work and professional careers, which have been called: "sticky floor" and "broken stairs", in those cases in which growth is complicated by the difficulty in accessing training; "glass ceiling" when there is training but the impossibility of accessing decision-making positions; and "grass ceiling" as those limitations that are given by recreational activities (football, golf, etc.) in which relationships and bonds of trust are generated, and in which, in general, women are not invited to participate. These situations provide opportunities for access and/or growth to men, to the detriment of women with equal suitability, and deprive society as a whole of female talent, in addition to generating the existing wage gap.
In all cases, the feminization of care tasks has a great impact, since they are mostly carried out by women. That is why the “care economy” has been developed to focus on these tasks and organize work around them, which is accompanied by the different proposals for shared licenses.
In this way, these sociocultural customs are added to biological or natural reasons, and consequently equality is not real.[1], and therefore, neither the capacity to contribute.
This issue is not a private one, but rather a social one, and therefore it is necessary to review the role of the State through its various powers in order to act with due diligence, modifying social and cultural patterns of behaviour, eliminating prejudices and customary practices based on the supposed superiority/inferiority of genders and stereotypical roles, applying the gender approach and adopting norms with a gender perspective.
In relation to natural inequalities, it is pointed out that menstruation generates inequality in social life, and that is why menstrual management products are considered essential goods to allow precisely the development of women's social and work life and that is why taxes on such products (pink taxes) are considered unconstitutional. In Colombia, the unconstitutionality of VAT on menstrual management products was declared (Rojas Salinas Case of 21/8/19)[2]In our country there are several projects for the exemption of VAT on such products, as well as some municipal regulations (among others from the Municipality of Morón) that establish their free distribution.
In relation to sociocultural inequalities, it is necessary to modify the various gender stereotypes, through education and communication, as well as the leave regimes to distribute care tasks. From the perspective of financial law, it is essential to design budgets with a gender perspective to generate changes through public spending (Ministry of Women, Gender and Diversity; Micaela Law, creation of shelters, pensions, ESI education and new masculinities, among many others), and through tax resources, among which, in addition to the VAT exemption for menstrual management products, there are special deductions (for expenses related to care tasks such as double school shifts, kindergartens; clubs, day houses, etc.)[3], or tax benefits for companies that include gender parity in their decision-making bodies, among many others.
Furthermore, among the duties that the State must fulfill, through the Judicial Branch or jurisdictional bodies such as the National Tax Court, is that of carrying out the conventionality control in accordance with art. 7 of the Belem do Pará Convention and Recommendation 30 of CEDAW, in the terms indicated by the Inter-American Court of Human Rights in the case "Almonacid Arellano" of 26/9/06.
In the aforementioned precedent it was pointed out that if a State is a party to the convention, all its organs, including judges, are obliged to ensure that the provisions of the convention are not undermined by contrary norms – even by carrying out ex officio control of conventionality.
Likewise, the States Parties must judge from a gender perspective, that is, include the gender perspective in the interpretation and application of positive law.
In this regard, our Supreme Court, in the "Sanelli" precedent dated 4/6/20, overturned the Chamber's ruling because it had been judged following a gender and age stereotype that is contrary to the international standard on violence against women and sexual violence, in accordance with the precedent of the Inter-American Court of Human Rights in the "Veliz Franco" case.
It is therefore essential to include the gender perspective in the interpretation and application of the rules by lawyers and interpreters, in order to accept the new paradigms and allow the changes that are necessary to achieve real equality and, ultimately, a more just and equitable society.
Silvina Érica Coronello is a lawyer (UBA). Specialist in Tax Law (UBA). PhD candidate in Tax Law (UBA). Coronello & Asociados Law Firm. Professor of undergraduate and graduate studies at various universities.
(*) Presentation by the author at the Tax Courts Commission of the Argentine Association of Tax Studies on 2/9/20
[1] Coronello, Silvina “Inequality as a limit to the exercise of the right to property for the female gender”, published in the GDA Digital Magazine Gender and Current Law No. 1 of June 2020, p. 15, https://gda.com.ar/wp-content/uploads/2020/06/revista-junio-gda.pdf
[2] Coronello, Silvina. “The unconstitutionality of VAT on menstrual management products”, published in the Tax Supplement of ElDial.com on December 12, 2019.
[3] Coronello, Silvina “Redefining the principle of equality in tax matters from a gender perspective” published in Fiscal Newsletter No. 3853 of 25/7/19, Thomson Reuters Publishing House; “Taxation with a gender perspective” published in the Tax News Supplement of Ámbito Financiero on November 12, 2019.https://www.ambito.com/novedades-fiscales/novedades-fiscales/hacia-una-tributacion-perspectiva-genero-n5065082
