Women in the United States not only face pay discrimination in the workplace, but also price discrimination in the marketplace. On average, men will earn $10,381 more in 2022 than women will across the nation. Further, women pay an estimated $1,350 more annually than men do for similar products, goods, and services on average. As a result, women are squeezed economically from both sides. Such gender-based price discrimination against women is known as the “Pink Tax.” There are many ways in which the Pink Tax infiltrates the market, and it impacts families raising girls as much as independent adult women. For example: (1) Girls toys cost 11% more, bikes cost 6% more (helmets 13% more), and clothing range from 4-13% more than boys; (2) women’s versions of personal care products, like shampoo and conditioner, soap, razors, and deodorant, cost 4-48% more than men’s versions; (3) women pay up to 13% more for similar clothing than men; and (4) women’s haircuts cost about 40% more than men’s.

Because of the Pink Tax, by the time a woman reaches 74 years of age, she will have spent approximately $100,000 more than her male counterparts for similar products, goods, and services. This is not a trivial amount of money nor is this a trivial issue. The opportunity cost of women spending more of their income on basic human necessities, like personal care products and clothing, is the ability to save and invest money for their future. Thus, potential adverse effects of the Pink Tax may be: increased female dependence on male partners, stigma or cost-association with raising daughters, and difficulty accumulating wealth and assets over time. Even so, there are several justifications offered for the Pink Tax. One example is that tariffs on imports for women’s products are often higher.Another is that changes in manufacturing (materials, color, size) can be more expensive. Further, some manufacturers and distributors simply believe that women will pay more for a product and, thus, charge more. While these justifications, or rather excuses, have been long accepted, American consumers and legislators alike are trending toward abolishing gender-based price discrimination nationwide.

The “Pink Tax Repeal Act” and “Affordable Care Act” are two examples of federal legislative intervention combatting gender-based price discrimination. Prior to the passage of the Affordable Care Act in 2010, women paid one and a half times more than men for health insurance. This is especially disappointing because these higher-cost health insurance plans for women did not typically include additional benefits for maternity care. While it is arguable that the addition of maternity care in these plans could have justified the increased price for women’s health insurance, since no such maternal care coverage was usually not included, this is an example of gender-based price discrimination. More recently, the 2021 “Pink Tax Repeal Act” was introduced. The Act seeks to prohibit the sales of substantially similar products at different prices “based on the gender of the intended purchaser.” The bill qualifies “substantially similar” as a product in which “the only difference between two products is color.” A perfect example is that a girl’s pink helmet costs $27.99, while a boy’s costs $14.99.

Until the Pink Tax Repeal Act is enacted, individual states are responsible for enforcing the Pink Tax. While the majority of states uphold the Pink Tax, more and more are doing away with it. One potential reason for States keeping the Pink Tax is the revenue it generates. For example, while New York declared gender-based pricing illegal in 2020, it was estimated that New York would lose around $14 million annually as a result. Although still a minority, since 2016, 10 states have eliminated the Pink Tax : California, Connecticut, Florida, Illinois, Nevada, New York, Ohio, Rhode Island, Utah, and Washington. Thus, while only one-fifth of the states have taken a stance against gender-based discrimination, the court system may be able to pick up the slack.

A recent example is Schulte v. Conopco, Inc., 997 F. 3d 823 (8th Cir. 2021). In Schulte, the plaintiff alleged in her complaint that the defendants violated a Missouri statute by engaging in the discriminatory marketing of men and women’s deodorant. This case was dismissed on grounds that the plaintiff failed to allege sufficient facts to support the court finding that the sales of the deodorants at issue were “extrinsically discriminatorily deceptive or unfair.” Essentially, since women are in fact able to purchase male-marketed products, which cost less, the court upheld gender-based price discrimination. Therefore, assistance by the court system does not appear promising since a similar case regarding the pricing of hair regrowth treatment for women (a generic alternative to Rogaine) was also dismissed in Lowe v. Walgreens Boots Alliance, Inc. 2021 WL 4772293 (N.D. Cal. Sept. 23, 2021). As a result, there are two solutions to banish the Pink Tax or, at least, create uniformity of price discrimination across the States: (1) the “right” case marches it way up to the Supreme Court; or (2) Congress passes the Pink Tax Repeal Act, or similar legislation.