Challenging gender inequality in tax policy making comparative perspectives

CHALLENGING GENDER INEQUALITY
IN TAX POLICY MAKING
This volume takes a critical look at the gender of tax policy around the
world. Contributors based in eight different countries examine the profound effects that gender norms and practices have had in shaping tax
law and policy, and how taxation in turn impacts upon the possibilities
for equality along gender, race, class, sexuality and other lines. Chapters
explore how the gendered fiscal state might be theorized; how structural
choices about rates and bases in tax policy design contribute to gender
inequality; how tax policy affects family configurations and perceptions of
what constitutes family; how fiscal systems impact on savings and wealth
accumulation by women and men; and the role of different policy-making
processes and institutions in occluding and sometimes challenging these
patterns. Most significantly, perhaps, the book explores these questions in
an international frame, traversing countries and continents. The conclusion:
fiscal policy has deep-rooted, long-standing gender implications that affect
virtually every aspect of our social, political and economic lives whether we
live in Canada, Australia or Kenya.


Oñati International Series in Law and Society
A SERIES PUBLISHED FOR THE OÑATI INSTITUTE
FOR THE SOCIOLOGY OF LAW
General Editors
Rosemary Hunter

David Nelken
Founding Editors

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Carlos Lugo, Hostos Law School, Puerto Rico
Jacek Kurczewski, Warsaw University, Poland
Marie Claire Foblets, Leuven University, Belgium
Roderick Macdonald, McGill University, Canada
Recent titles in this series
Changing Contours of Domestic Life, Family and Law: Caring and
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Criminology and Archaeology: Studies in Looted Antiquities
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The Legal Tender of Gender: Welfare Law and the Regulation of
Women’s Poverty edited by Shelley Gavigan and Dorothy Chunn
Human Rights at Work
edited by Colin Fenwick and Tonia Novitz
Travels of the Criminal Question: Cultural Embeddedness and Diffusion
edited by Dario Melossi, Máximo Sozzo and Richard Sparks
Feminist Perspectives on Contemporary International Law: Between
Resistance and Compliance?
edited by Sari Kouvo and Zoe Pearson
Challenging Gender Inequality in Tax Policy Making: Comparative
Perspectives
edited by Kim Brooks, Åsa Gunnarson, Lisa Philipps and Maria Wersig
For the complete list of titles in this series, see
‘Oñati International Series in Law and Society’ link at
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Challenging Gender Inequality

in Tax Policy Making
Comparative Perspectives
Edited by

Kim Brooks
Åsa Gunnarson
Lisa Philipps
and
Maria Wersig

Oñati International Series in Law and Society
A SERIES PUBLISHED FOR THE OÑATI INSTITUTE
FOR THE SOCIOLOGY OF LAW

OXFORD AND PORTLAND, OREGON
2011


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Acknowledgements
This collection springs from a workshop held in May 2009 at the
International Institute for the Sociology of Law (IISL) in Onati, Spain,
the first we believe, ever to have brought together such an internationally
diverse group of researchers working on issues related to tax policy and
gender equality. The editors are grateful to the IISL for hosting that workshop and to all its participants, most especially those who contributed to
this collection of original essays.



Contents
Acknowledgements ................................................................................... v

List of Contributors ................................................................................. ix
Introduction .............................................................................................. 1
Lisa Philipps, Kim Brooks, Åsa Gunnarsson and Maria Wersig
Part I: Gendering the Fiscal State
1. The ‘Capture’ of Women in Law and Fiscal Policy:
The Tax/Benefit Unit, Gender Equality, and Feminist Ontologies ..... 11
Kathleen A Lahey
2. Tax, Markets, Gender and the New Institutionalism........................ 37
Ann Mumford
3. Gender Equity in Australia’s Tax System: A Capabilities
Approach ......................................................................................... 53
Miranda Stewart
4. Challenging the Benchmarks in Tax Law Theories and Policies
from a Gender Perspective—The Swedish Case ................................ 75
Åsa Gunnarsson
Part II: Bases and Rates: Structural Choices in Tax Policy Design
5. Taxing Surrogacy ............................................................................. 95
Bridget J Crawford
6. A Gender Perspective Approach Regarding the Impact
of Income Tax on Wage-earning Women in Spain .......................... 109
Paloma de Villota
7. Gender and Taxation in Kenya: The Case of Personal Income
and Value-added Taxes ................................................................... 135
Bernadette M Wanjala and Maureen Were
Part III: The Family in Tax Policy
8. Dismembering Families .................................................................. 159
Anthony C Infanti
9. The Tax/Benefit Implications of Recognizing
Same-sex Partnerships .................................................................... 177
Casey Warman and Frances Woolley

viii Contents
10. Income Redistribution Through Child Benefits and
Child-related Tax Deductions: A Gender-neutral Approach? ......... 195
Kirsten Scheiwe
11. Overcoming the Gender Inequalities of Joint Taxation
and Income Splitting: The Case of Germany .................................. 213
Maria Wersig
Part IV: Savings, Wealth and Capital Gains
12. Income Splitting and Gender Equality: The Case
for Incentivizing Intra-household Wealth Transfers ........................ 235
Lisa Philipps
13. Indirect Discrimination in Tax Law: The Case of
Tax Deductions for Contributions to Employer-provided
Pension Plans in Germany .............................................................. 255
Ulrike Spangenberg
14. Gender and Capital Gains Taxation ............................................... 275
Marjorie E Kornhauser
Index..................................................................................................... 293


List of Contributors
Kim Brooks was appointed Dean of the Schulich School of Law in July
2010. She formerly held the H Heward Stikeman Chair in the Law of
Taxation at McGill’s Faculty of Law. Professor Brooks’ primary research
interests lie in the areas of corporate and international tax, and tax policy.
Bridget Crawford is a Professor of Law at Pace University School of Law in
White Plains, New York. She teaches courses in Taxation; Wills, Trusts and
Estates; and Feminist Legal Theory. She is the editor, with Anthony Infanti,

of Critical Tax Theory: An Introduction (Cambridge, 2009). She can be
reached at You can follow her on Twitter at @
ProfBCrawford.
Paloma de Villota is Professor Doctor of Applied Economy at Universidad
Complutense de Madrid. Her research interests include labour market,
fiscal and social policies and gender budgeting. She writes reports for the
European Commission and Spanish institutions. She has collaborated with
UNIFEM, ILPES, CEPAL and the Council of Europe. She has worked
with many European Universities in different projects and with American
institutions such as FLACSO, UNAM (México). She is a member of the
International Association of Feminist Economics and member of the board
of the Instituto de Investigaciones Feministas (Spain).
Åsa Gunnarsson is Professor of Jurisprudence and Tax Law at the Department of Law, Umeå University. Her research covers a wide range of issues
on law and the gendered fiscal state. She currently leads a research programme
funded by the Bank of Sweden Tercentenary Foundation, titled Feminist
Studies on Taxation and Budgeting (FemTax).
Anthony C Infanti is a Professor of Law at the University of Pittsburgh
School of Law. His research focuses particularly upon the intersection of
tax law with sexual orientation and gender identity. He is co-editor of
Critical Tax Theory: An Introduction (Cambridge University Press, 2009).
Professor Infanti is an elected member of the American Law Institute and
the American Bar Foundation.
Marjorie E Kornhauser is Professor of Law at Arizona State University
College of Law where she teaches tax and tax policy. Her research focuses
on the intersection of tax and society, including political, historical and


x

List of Contributors

gendered aspects of taxation. Among her recent publications is a chapter
in another Hart publication: ‘Remembering the “Forgotten Man” (and
Woman): Hidden Taxes and the 1936 Election’ in J Tiley (ed), Studies in
the History of Tax Law: Volume 4 (Hart Publishing, 2010).
Kathleen A Lahey is Professor of Law and Queen’s National Scholar, Faculty
of Law, Queen’s University, and co-director, Feminist Legal Studies Queen’s.
Her research includes corporate, personal, international, and comparative
taxation and policy, property law, gender budgeting, women, sexualities,
and race in fiscal policy and human rights. Recent publications include
Women and Fiscal Equality (special edition, Canadian Journal of Women
and the Law, 2010), ‘Women, Substantive Equality, and Fiscal Policy’
(CJWL, 2010), and ‘International Transactions, Taxation, and Women: The
Critical Role of Gender Analysis’ (UBCLRev, 2010). She frequently advises
parliamentary committees, policy units, and the media on tax/budget issues.
Email:
Dr Ann Mumford is a Senior Lecturer in the School of Law at Queen
Mary, University of London. Ann’s research interests are in the fields of
fiscal sociology, budgetary processes, and the intersections of law, gender
and equality. She has written two monographs, Taxing Culture (Ashgate,
2002); and Tax Policy, Women and the Law (Cambridge University Press,
2010).
Lisa Philipps is a Professor at Osgoode Hall Law School of York University
in Toronto, Canada. She is co-editor of Tax Expenditures: State of the
Art, ed Lisa Philipps, Neil Brooks and Jinyan Li (Toronto, Canadian Tax
Foundation, 2011), and co-author of David G Duff, Kim Brooks, Benjamin
Alarie and Lisa Philipps, Canadian Income Tax Law, 3rd edn (Markham,
Ontario, LexisNexis, 2009).
Kirsten Scheiwe is Professor of Law at Hildesheim University, Germany
since 2000. She works mainly in the areas of family law, social law and legal

comparison and investigates law in social context from the perspectives of
interdisciplinary and comparative legal analysis and gender studies. She
received her PhD from the European University Institute, Florence and her
habilitation from Frankfurt University.
Ulrike Spangenberg is a Berlin-based independent consultant who has
worked with clients in government, trade unions and a variety of other
organisations. A lawyer by training, she has specialized in Gender and
Fiscal policy. She is the author and co-author of several key studies on the
intersection of taxation and gender in Germany. Contact: spangenberg@
gleichstellungsinstitut.de.


List of Contributors

xi

Miranda Stewart is an Associate Professor at Melbourne Law School,
University of Melbourne. She recently edited Housing and Tax Policy
(Australian Tax Research Foundation, 2010) and is a co-author of Death
and Taxes (Thomson, 2009) and Income Taxation: Commentary and
Materials (Thomson, 2009). She is currently researching taxation of the
not-for-profit-sector and issues in tax and development.
Bernadette Wanjala is a PhD Fellow in Economics at the Development
Research Institute, Tilburg University, the Netherlands. She has wide
research experience and publications in macroeconomics, macro modelling,
development economics and gender aware macroeconomics. She has previously worked as an Assistant Policy Analyst in Macroeconomics Division,
The Kenya Institute for Public Policy Research and Analysis (KIPPRA).
Casey Warman received his PhD in Economics from Carleton University in
2006. He teaches in the Economics Department at Queen’s University. His
research interests primarily involve empirical issues in the areas of immigration, gender differentials, labour market, and health economics. His

research has been published in the Canadian Journal of Economics, Labour
Economics and the American Economic Journal: Economic Policy.
Maureen Were is a researcher at the Research and Policy Analysis
Department of the Central Bank of Kenya. She holds a PhD in economics,
with wide experience in economic research and the field of macroeconomic
modelling. She has written a number of papers on pertinent macro and
socio-economic issues relating to Kenya.
Maria Wersig studied law and gender equality at the Freie Universität
Berlin. She has worked as a policy adviser within the Parliament of the
Federal Republic of Germany and is currently a doctoral candidate at
the Otto-Suhr-Institute of Political Science (Berlin). Her research interests
include family law and policy, taxation, legal gender studies and comparative constitutional studies.
Frances Woolley is a Professor in the Department of Economics at Carleton
University. Her area of expertise is the economics of the family and public
policy, particularly with respect to the tax treatment of families. She blogs
regularly at Worthwhile Canadian Initiative,
and for the Globe and Mail newspaper.



Introduction
LISA PHILIPPS, KIM BROOKS, ÅSA GUNNARSSON
AND MARIA WERSIG

T

HE GENDERED DESIGN and implications of many areas of law,
economics and political science have been subject to robust, thoughtful, detailed analysis and critique. While a gender analysis of tax
policy exists, its contours have not been explored with the same degree of
scrutiny and a gender analysis of much public policy in the tax area is missing altogether. This book begins to fill a critical gap by focusing on the profound effects that gender norms and practices have had in shaping tax law

and policy in different countries, and how taxation in turn impacts upon
the possibilities for equality along gender, race, class, sexuality and other
lines. The chapters explore questions about how the gendered fiscal state
might be theorized, how structural choices in tax policy design contribute
to gender inequality, how tax policy affects family configurations and perceptions of what constitutes family, and how fiscal systems impact savings
and wealth accumulation by women and men. Most significantly, perhaps,
the book explores these questions in an international frame, traversing
countries and continents. The conclusion: fiscal policy has deep-rooted,
long-standing gender implications that affect virtually every aspect of our
social, political and economic lives whether we live in Canada, Australia
or Kenya.
Tax policy research in general must increasingly contend with the intertwining of national and international norms and institutions in fiscal governance (Avi-Yonah 2007; Christians 2009; Christians et al 2008; Cockfield
2005 and 2006; Stewart 2003). The power to raise and spend public revenues
remains fundamentally associated with the nation state and the research in
this volume illustrates the diversity of tax policy choices made historically by
different countries. At the same time, states increasingly set their fiscal directions in response to pressures associated with global economic integration,
capital mobility and market deregulation. The transnational quality of fiscal
policy became even more apparent after 2008 when the worldwide financial
crisis led to new multinational commitments to engage in stimulus budgeting
and to cooperate in preventing tax evasion. The crisis has also exposed the
massive (and massively gendered) social risks that populations face in a world
of unstable markets and limited welfare state safety nets, often comprised
largely of tax-based programmes. These risks are magnified in many countries


2 Lisa Philipps, Kim Brooks, Åsa Gunnarsson and Maria Wersig
by demographic ageing which puts additional pressure on the organizing and
financing of care work and reproduction, with enormous implications for the
gendered division of paid and unpaid labour. The fiscal deficits resulting from
the combination of these pressures will need to be addressed in some fashion.

As governments and international bodies grapple with these challenges, tax
policy will play a central role both as a means of financing public action, and
as a powerful instrument for delivering programmes, distributing resources
and incentivizing behavioural changes. Thus, it is not surprising that in the
wake of the crisis, scholars and policy makers have begun to analyze how
tax systems may have contributed to past problems and how they might be
redesigned to foster economic growth, discourage excessive risk taking by
market actors and shore up the economic security of vulnerable individuals
(Edgar 2010; International Monetary Fund 2009; Shaviro 2009). Yet new
tax measures are unlikely to achieve their goals unless the policy makers who
design them are attuned to gender differences in income, wealth, opportunities, and responsibilities.
The authors in this book draw on a variety of intellectual frameworks
to analyze the gender saturated character of tax policy choices. Indeed, the
collection demonstrates that gender analysis of tax law can proceed from a
range of different theoretical and political perspectives. Most of the contributors make their disciplinary home in law and hence one focus of the book
is on feminist legal and socio-legal analyses of specific rules, procedures
and institutions of tax law. Many of the chapters shed light on assumptions
about gender or sexuality that are embedded in the design of legal norms, or
on the differential effect of tax laws when applied to women and men who
occupy different positions in markets and households. Others approach
the subject from a more economic perspective that analyzes the way taxes
incentivize the behavioural choices of men and women as individuals and
in various household forms (see especially Paloma de Villota, chapter six;
and Casey Warman and Frances Woolley, chapter nine). Other important
intellectual backdrops include feminist scholarship on welfare states and on
the gendered implications of neoliberal economic policy. For example, some
chapters investigate the tax dimensions of a broad shift away from policies
that assume two-parent households supported by a primary breadwinner,
towards a system modelled on universal market engagement by self-reliant
individuals (see, for example Ulrike Spangenburg, chapter thirteen; Kirsten

Scheiwe, chapter ten). Finally, this volume adds to a growing academic
and policy literature on gender budgeting, most of which has focused on
the spending side of fiscal policy (as discussed by Bernadette Wanjala and
Maureen Were in chapter seven). One of its important contributions is to
illustrate how gender analysis can be applied more systematically to the
revenue side of budgets.
Fortunately, we were not required to start our analysis from scratch.
While there is much to be added to the gender analysis of fiscal policy, the


Introduction 3
authors in this collection were able to build on earlier path-breaking work by
feminist scholars. In some countries more than others, a feminist tax policy
literature is rich and deep, although far from complete (Alstott 1996; Brown
1997; Dulude 1985; Fellows 1998; Kahng 2004; Lahey 1985; Lipman 2003;
Mennel 1986; Mückenberger et al 2007; Philipps 1996; Shurtz 1998; Staudt
1996; Stewart 1998; Young 1995). Although some jurisdictions have been
fortunate to have several scholars working in the area, no jurisdiction has
policy makers that have fully engaged with their suggestions.
Each of the four chapters included in Part I: Gendering the Fiscal State
offers a perspective on the role of gender in defining the overall frame
within which tax policy debates are played out. Though anchored by case
studies of tax reform in particular locations and at particular times, their
purpose is not to develop detailed policy prescriptions. Rather, they serve
to enable critical analysis by revealing how apparently gender neutral tax
regimes can be implicated in the production and reproduction of unequal
gender relations. The first chapter, by Kathleen Lahey, places the subject
matter of this book squarely in historical context. Lahey argues that the
fundamental source of women’s inequality in tax law is their continuing
absence as true subjects of fiscal policy independent of their relationships

with men. Indeed, in her view the ‘basic nature and function of the state, of
taxation, and of fiscal policy remain grounded in preoccupation with male
control over women’ (14). Lahey excavates the profoundly gendered ontology of tax law from pre-Roman times and traces this history to the unstated
assumptions that frame contemporary tax policy debate.
Ann Mumford and Miranda Stewart (chapters two and three) examine
recent processes of tax reform in England and Australia, respectively. Both
point out the limited interest that policy makers have demonstrated in
gender issues, apart from using taxes to encourage women’s participation
in paid labour or to deliver baseline welfare. Other dimensions of gender
inequality tend to drop out of the picture, as Stewart discusses in relation to the distribution of opportunities to accumulate capital. A further
theme connecting these two chapters is the continued pressure exerted by
a market-oriented economic policy paradigm in contemporary tax policy
making. Each turns to a broader theoretical approach (new institutionalism
for Mumford, development theory on capabilities for Stewart) to open up
the analysis of tax systems to a fuller consideration of the issues and constraints that women face as economic actors.
The final chapter in Part I by Åsa Gunnarsson (chapter four) emphasizes the pivotal role of the public/private divide in structuring the tax
treatment of women as compared with men. Comparing German, French
and Swedish approaches to the tax unit, she finds that they offer opposing visions of gender equality as a function of either promoting sameness
(universal market participation) or accommodating difference (women as
primary carers), with neither fostering the integration of these activities.


4 Lisa Philipps, Kim Brooks, Åsa Gunnarsson and Maria Wersig
Gunnarsson also critiques the Swedish tax reforms of 1991 as poorly
designed from the perspective of both economic growth and women’s
equality. She argues that the concentration of tax cuts on high income
men ignored the efficiency gains that could have been reaped by reducing taxes for more women, whose paid labour supply is more responsive
to changes in the after-tax wage. Instead, reformers relied on welfare
measures to address gender equality concerns, leaving women exposed
to welfare walls in the form of high tax back rates on benefits when

they start to earn income. On this level, Gunnarsson echoes Stewart’s
concern with an exclusive focus on baseline economic security for poor
women, as opposed to their broader inclusion in the full range of market
opportunities.
Following Part I, the book shifts from macro level analysis to closer studies of specific tax policy problems. Many of the remaining chapters address
subject matters that have not frequently, or have never, been considered
from a feminist perspective. The contributors to Part II on Bases and Rates
all provide examples of how gender equality is impacted by decisions about
the basic structural design of tax systems. Bridget Crawford’s study (chapter
five) probes the meaning of income and considers how taxation of earnings
from surrogacy contracts would impact women’s equality. The current IRS
practice of loose enforcement in this area appears in an immediate sense to
be better for women undertaking an inherently gendered form of economic
activity. Yet Crawford argues that taxation is the preferred option, both
from the symbolic perspective of validating women’s reproductive activities
as ‘work’, and because of the potential indirect benefits that surrogates will
obtain by becoming taxpayers.
Paloma de Villota (chapter six) widens the analysis of structural tax design
by demonstrating the complex interaction of base, rates and tax unit in shaping the gender distribution of personal income taxes in Spain following successive rounds of tax reform. She identifies several potential sources of gender
bias because of the different earning profiles of men and women, the differential tax rates applied to wages and capital gains, and the continued option
for married persons to file individually or jointly. Similar themes are pursued
by Bernadette Wanjala and Maureen Were (chapter seven) in the context of
Kenya. Both of these chapters point out the difficulty of thoroughly understanding or explaining the gender impact of tax policies in the absence of
fully gender disaggregated tax and economic data. This barrier is particularly
acute in countries that use a joint tax return. Nonetheless, both Villota and
Wanjala and Were located sufficient data to conduct a partial analysis that
provides at least a window onto the gendered impact of tax policies. Wanjala
and Were add a further dimension to the picture by studying the incidence of
Value Added Tax in Kenya, demonstrating the sometimes surprising effects
of decisions to exempt a particular good or service from the tax. Their contribution bears on the question of tax mix and is important not least because

Introduction 5
many countries outside North America rely so heavily on VATs or other
consumption taxes to raise a large share of revenues. Wanjala and Were’s
study especially illustrates the differences that lie between tax systems in
rich and poor countries, and the way gender interacts with other key socioeconomic characteristics of Kenyans, such as the divide between urban and
rural populations and between owners and non-owners of land. This opens
a very large question that should be on the agenda for future research in this
field, that is, how gender analysis of tax policy in individual countries connects to issues of global inequality among more and less wealthy countries.
The need for careful attention to demographic diversity is brought into
the foreground by Part III on Tax and the Family. These chapters not only
interrogate the consequences of fiscal policy for different kinds of families,
but question the degree to which fiscal policy constructs the normative
family. Anthony Infanti (chapter eight) focuses on the design and effect of
the medical expenses deduction in the United States comparing so-called
traditional and non-traditional families, but more fundamentally his chapter probes the constitutive nature of taxing legislation using the medical
expenses deduction as a foil. Infanti’s chapter throws into relief the ways in
which tax policy design can take for granted stereotypes about gender. For
example, he demonstrates that the design of the medical expense deduction
elides questions about the identity of the recipient of the medical treatment
and presupposes particular family configurations, most notably reflecting
the view that only heterosexual families procreate.
The second chapter in Part III, by Casey Warman and Frances Woolley
(chapter nine), turns to the implications of tax policy for same-sex couples.
State recognition of same-sex relationships has been a hot button issue in
many parts of the world in the last decade: naturally, given that all income
tax legislation takes spousal relationships into account in at least some of
its provisions, one consequence of legal recognition for same-sex couples is
a change in the tax treatment of the individuals in the relationship. Warman

and Woolley rely on Canadian data to build a demographic profile of selfidentified gays and lesbians in Canada. They conclude, in contrast to studies
undertaken in other jurisdictions, that legal recognition of same-sex marriage
has had few tax advantages for working-age gays and lesbians; nevertheless,
for single parents, the legal recognition of relationships can lead to a substantial loss of benefits delivered through Canada’s tax legislation.
The final two chapters in Part III turn to the gendered consequences of
tax design for ‘traditional’ families employing Germany as a case study.
Kirsten Scheiwe (chapter ten) details the impact of child benefits and
deductions for expenses related to child rearing. The gendered division of
work in the home, particularly around the raising of children, is one of the
most palpable illustrations of gender inequality, so it is perhaps shocking
that this has not been taken into account in any adequate way by fiscal
policy makers around the globe. One of the most important contributions


6 Lisa Philipps, Kim Brooks, Åsa Gunnarsson and Maria Wersig
Scheiwe’s chapter makes is her insistence that taxation, social security and
direct benefits must be analyzed together to present a sophisticated view of
the state’s role in providing particular incentives and disincentives for child
care work. Scheiwe concludes that Germany’s approach to this area results
in highly uneven consequences, some intended and some unintended, across
families depending on the family’s form and its income class.
Maria Wersig (chapter eleven) concludes Part III of the collection.
Wersig’s chapter complements the others in this section—her review of the
German system of joint taxation reveals the dominance of the bias toward
traditional families identified also in Infanti’s chapter. The chapter includes
a historical review of the basis for joint taxation of spouses and she critiques
its gendered repercussions. Germany’s constitutional constraints present yet
another layer to the complicated story of why Germany continues to tolerate joint taxation when it unequivocally constitutes bad gender politics.
Wersig’s appeal for reform might be echoed in other countries where joint
taxation and income splitting continue to hold sway in fiscal policy.

An area that has been desperately lacking in gender analysis is the consequences of fiscal policy for women’s saving and capital investment; therefore, the collection concludes with Part IV which turns the analytical focus
to Savings, Wealth and Capital Gains. Part IV opens with a contribution
from Lisa Philipps (chapter twelve). Philipps complicates the narrative that
income splitting is always bad for women by focusing on the possibilities
for women if income splitting were coupled with a legal requirement that
the split income (or the underlying assets) actually be transferred to the
lower-income spouse. At its core, Philipps’ argument demands that feminist
scholars and policy makers consider whether there are autonomy enhancing moves that could be made in tax policy design if we were serious about
wanting to redistribute wealth intra-family.
If intra-family transfers present one means of supporting saving and
wealth accumulation by women, another mechanism is to offer government support for employer-provided pensions. Ulrike Spangenberg (chapter
thirteen) takes on the difficult question of whether tax regulations actually
violate constitutional prohibitions against discrimination. She argues that the
fact that many vulnerable groups are under-compensated or not covered by
government-subsidized employer-provided pensions requires at least some
additional compensation for these excluded or under-subsidized groups,
otherwise the tax system results in indefensible indirect discrimination.
Finally, the collection includes a groundbreaking chapter by Marjorie
Kornhauser (chapter fourteen) on the gendered implications of capital
gains taxation. Of all forms of income, capital gains receive some of the
most favourable tax treatment worldwide. A standard narrative (and an
important one) would explore the degree to which that preference benefits
primarily men. But Kornhauser goes much beyond that narrative, looking
also at the explanatory rationale for the dominance of men as investors in


Introduction 7
capital assets. Kornhauser delves into the behavioural investment tendencies
of men and women and queries whether those investment practices exacerbate the gender inequality inherent in the capital gains preference. She
provides a more nuanced story about the policy moves governments should

make in designing the rules governing capital gains taxation.
An active engagement with policy immediately raises the question of
which institutions and processes can best be mobilized to challenge and
change the status quo, and which may represent barriers which themselves
need to be reformed. Read as a group, the chapters in this volume show why
legal instruments are essential, yet also limited in their ability to bring about
meaningful change on the ground, and this is true even when law makers
collaborate through international institutions to create norms such as tax
treaties or conventions to eliminate discrimination against women. The book
reveals the complementary roles played by different branches of the state,
such as treasury officials and women’s bureaus, legislatures and courts, revenue administrators and statistical agencies. It also raises persistent questions
about how feminist researchers and civil society advocates can best engage
with these institutions and processes to achieve thoughtful policy changes
and to evaluate both successes and failures. The collection contributes to
the emerging literature that takes seriously the impact of policy making
on women. It does not, by any stretch, canvass all of the issues or provide
definitive solutions. Instead, we hope it serves as a call for other researchers
and policy makers to grapple with the questions it raises, pursuing new lines
of inquiry and interrogating fiscal policy for all its consequences, particularly
the consequences for those most exposed to market discrimination.
REFERENCES
Alstott, A (1996) ‘Tax Policy and Feminism: Competing Goals and Institutional
Choices’ 96 Columbia Law Review 2001.
Avi-Yonah, RS (2007) International Tax as International Law (New York,
Cambridge University Press).
Brown, DA (1997) ‘Race, Class, and Gender Essentialism in Tax Literature: The
Joint Return’ 54(4) Washington and Lee Law Review 1469.
Christians, A (2009) ‘Sovereignty, Taxation, and Social Contract’ 18(1) Minnesota
Journal of International Law 99.
Christians, A, Dean, SA, Ring, D and Rosenzweig, A (2008) ‘Taxation as a Global

Socio-Legal Phenomenon’ 14 ILSA Journal of International and Comparative Law.
Cockfield, AJ (2005) NAFTA Tax Law and Policy: Resolving the Clash Between
Economic and Sovereignty Interests (Toronto, University of Toronto Press).
—— (2006) ‘The Rise of the OECD as Informal “World Tax Organization” through
National Responses to E-Commerce Tax Challenges’ 9 Yale Journal of Law and
Technology 59.
Dulude, L (1985) ‘Taxation of the Spouses: A Comparison of Canadian, American,
British, French and Swedish Law’ 23 Osgoode Hall Law Journal 1.


8 Lisa Philipps, Kim Brooks, Åsa Gunnarsson and Maria Wersig
Edgar, T (2010) ‘Financial Instability, Tax Policy, and the Tax Expenditure Concept
63 Southern Methodist University Law Review 969.
Fellows, ML (1998) ‘Rocking the Tax Code: A Case Study of the Tax Treatment of
Work-Related Child-Care Expenditures’ 10 Yale Journal of Law and Feminism
307.
International Monetary Fund (2009) Debt-Bias and Other Distortions: CrisisRelated Issues in Tax Policy. Available online at: www.imf.org/external/np/pp/
eng/2009/061209.pdf).
Kahng, L (2004) ‘Innocent Spouses: A Critique of the New Tax Laws Governing
Joint and Several Tax Liability’ 49 Villanova Law Review 261.
Lahey, K (1985) ‘The Tax Unit in Income Tax Theory’ in ED Pask et al (eds),
Women, the Law, and the Economy (Toronto, Butterworths) 277.
Lipman, FJ (2003) ‘Enabling Work for People with Disabilities: A Post-Integrationist
Revision of Underutilized Tax Incentives’ 53 American University Law Review 393.
Mennel, A (1986) ‘Frauen Steuern Staatsfinanzen’ Feministische Studien 71.
Mückenberger, U, Spangenberg, U and Warncke, K (2007) Familienförderung und
Gender Mainstreaming im Steuerrecht (Baden-Baden, Nomos).
Philipps, L (1996) ‘Discursive Deficits: A Feminist Perspective on the Power of
Technical Knowledge in Fiscal Law and Policy’ 11 Canadian Journal of Law and
Society 141.

Shaviro, D (2009) ‘The 2008–09 Financial Crisis: Implications for Income Tax
Reform’, NYU Law and Economics Research Paper No 09-35. Available online
at: papers.ssrn.com/sol3/papers.cfm?abstract_id=1442089.
Shurtz, N (1998) ‘Critical Tax Theory: Still Not Taken Seriously’ 76 University of
North Carolina Law Review 1837.
Staudt, NC (1996) ‘Taxing Housework’ 84 Georgetown Law Journal 1571.
Stewart, M (2003) ‘Global Trajectories of Tax Reform: The Discourse of Tax
Reform in Developing and Transition Countries’ 44 Harvard International Law
Journal 139.
Woodman, FL (1998) ‘Women and Children in the Economy: Reflections from the
Income Tax System’ 47 University of New Brunswick Law Journal 311.
Young, CFL (1995) ‘(In)visible Inequalities: Women, Tax and Poverty’ 27 Ottawa
Law Review 99–127.


Part I

Gendering the Fiscal State



1
The ‘Capture’ of Women in
Law and Fiscal Policy:
The Tax/Benefit Unit, Gender
Equality and Feminist Ontologies
KATHLEEN A LAHEY

I

T IS WELL known that the movement towards gender equality has
been contested and slow, and that in no country have women yet
attained genuine and full equality with men. Less visible is the fact
that equality gains are not just difficult to achieve, but are extremely
fragile and can be reversed quickly when the impact of law and policy
on women as a sex/gender class is not kept at the forefront of the
agenda.
Over the last ten years, women in Canada have learned this hard fact.
This chapter connects the dramatic erosion of women’s status in Canada
in recent years with tax and fiscal policies that reinforce women’s traditional lack of social, economic and political power and disproportionate
responsibilities for unpaid and underpaid work. Instead of simply looking for specific policy alternatives to those that currently shape the new
status quo, however, this chapter examines how ‘masculine capture’ of
governance, revenue and social resources in longer-term processes of
state-building has made it possible for women to become formal ‘legal
persons’ in some types of legal, social and economic situations, but has
continued to prevent women from acting as true and equal ‘subjects’ of
the state in the same way that men do. This inquiry traces the ‘capture’ of
women reflected in the first recorded law codes and tax practices (from
the ancient Middle East and Rome) through the development of continental and English taxation, colonial exportations and contemporary tax
policies and posits that until fundamental concepts like value and work
are re-visioned around women as equal subjects, women’s equality will
remain elusive.


12 Kathleen A Lahey
THE FRAGILITY OF WOMEN’S EQUALITY: CANADA, 1985–2009

Women’s equality in Canada received a huge boost when the new Charter
of Rights and Freedoms prohibited sex discrimination effective in 1985.
This constitutional development was accompanied by tremendous social

interest and a huge number of studies, policies and laws enacted to support
the promise of equality. The rapid improvement in the status of women was
reflected in the UN Human Development Index (HDI) and Gender-related
Development Index (GDI) (UNDP). In 1995, Canada was ranked only
ninth in the UN’s GDI (HDI: 1990–93 data), but within a few short years
rose to first for four years in a row. During this time, Canada adopted the
UN Platform for Action at the 1995 Beijing world conference and began
actively implementing gender mainstreaming and gender-based analysis.
This commitment was short lived. By 2000, budgetary, tax and spending changes had begun to undercut women’s economic equality in Canada.
These changes included tightened eligibility for unemployment insurance
benefits, maternity leave and parental leave (all implemented in the mid1990s); spending cuts for childcare, privatization of government services,
making low-income benefits more ‘target efficient’ by reverting to the ‘male
breadwinner’ model of tax and benefit assistance and the shift from social
assistance to ‘workfare’. At the same time, tax cuts for high-income business owners and corporations were implemented and, most recently (since
2006), a minority conservative government has expanded the use of joint
tax and benefit measures while doing nothing to redress disproportionately
high tax rates for those with low incomes.
The impact of these changes has been dramatic and highly visible. By
2001, Canada had dropped to third in the UN GDI (reporting on 1999
data) and to seventh in the 2006 GDI (reporting on 2004 data). Newer
indices that place less emphasis on general development levels in order to
isolate changes in the status of women reveal that this trend has accelerated
rapidly since then. The new World Economic Forum Gender Gap Index
ranked Canada fourteenth in 2006, eighteenth in 2007 and thirty-first in
2008 (World Economic Forum 2008). In 2009, the UN ranked Canada
seventy-fourth in its new gender disparity measure, which ranks countries
by the size of the gaps between their general human development index
(HDI) and GDI scores (UNDP 2009).
On every measure, the deterioration of women’s equality in Canada is
shocking. At base, however, the problem is that despite earlier gains in

gender equality, the fundamental economic disadvantages of women were
never meaningfully addressed nor changed. Figure 1 reveals that even now,
men’s and women’s incomes in Canada continue to be markedly gender
segmented, reflecting women’s continuing lack of equal access to income
equality and their disproportionate relegation to unpaid and poorly-paid
work.