HTS Provisions Discriminate on Product, not Gender, says Government in Rack Room Appeal Brief
The Court of Appeals for the Federal Circuit should uphold the lower court’s dismissal of the Rack Room Shoes v. U.S. test case on gender discrimination in Harmonized Tariff Schedule provisions, because male and female provisions in the HTS rationally differentiate between products, not people, and were put in place to meet trade policy objectives, said the government in its Jan. 17 reply brief. CAFC’s ruling on the challenge will have a hand in determining the outcome of over 160 similar cases currently before the Court of International Trade.
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(Rack Room, along with Skiz Imports and Forever 21, is arguing that different duty rates between men’s and women’s gloves, footwear, and apparel violate the Fifth Amendment equal protection clause. CIT dismissed the Rack Room case in February, and denied a rehearing in June. CAFC has already ruled against another similar case in 2010 brought by Totes-Isotoner, and the government relied heavily on Totes-Isotoner in its reply brief.)
According to the government, Rack Room cannot argue that tariff provisions violate the equal protection clause through discrimination between males and females, because the HTS actually distinguishes between different classes of products, not classes of people. The HTS doesn’t apply to male and female end-users and importers, but rather to male and female gloves, footwear, and apparel, the government said. Furthermore, these distinctions have a basis in differences between products, it said. For example, male and female swimwear have the same uses, but different construction. Male and female products also move in different channels of trade and represent different commercial issues for domestic manufacturers, the government said.
The government also disagreed with Rack Room’s claim that Congress had insidious intent in choosing different duty rates for male and female gloves, footwear, and apparel. Differences between the products themselves, channels of trade, and import levels and sources gave Congress a rational basis to enact different tariff levels, the government said. Neither men’s nor women’s products have consistently higher duty rates either, said the government, noting several tariff provisions where duty rates for men’s products are higher than for similar women’s products, and vice versa.
However, even if the court agrees with Rack Room’s claim that the tariff provisions violate the equal protection clause, it would still be subject to a rational basis review, the government said. Rack Room can’t prove that Congressional intent was irrational, even if discriminatory, the government said. First, Congress is allowed to discriminate based on different trades, professions, and products when imposing taxes, which are similar to tariffs, it said. Men’s and women’s products may have different domestic manufacturing costs affecting competitiveness, and may be manufactured in countries that impose different duty rates on exported U.S. products. Also, the duty rates in the HTS are based on complex multilateral negotiations, and so were devised to meet trade policy objectives, not to discriminate against men or women, the government said.
(See ITT’s Online Archives 12101223 for summary of Rack Room’s brief in this appeal. See ITT’s Online Archives 12022102 and 12060409 for summary of CIT’s dismissal of Rack Room’s challenge and its denial of Rack Room’s request for rehearing, respectively. See also ITT’s Online Archives 10021020 for summary of CAFC’s ruling against Totes-Isotoner’s similar challenge.)
Email ITTNews@warren-news.com for a copy of the government’s brief.