I'm a bit late to this, but it's an interesting case and I thought I should start following it. As an old NY Times article explains, there are often tariff differences in the U.S. tariff schedule between men's and women's versions of clothing. For example, a 14 percent tariff on women’s overalls as compared to a 9 percent tariff on men’s overalls. Some clothing manufacturers challenged this treatment before the CIT, as a violation of the due process and equal protection clauses of the Constitution. The first ruling came in July. I'm not that familiar with the issues, so I'll just quote and refer to others. Lawrence Friedman of the Customs Law blog explains the result as follows:
I'm going to read the case more carefully and will provide a fuller analysis, but here are the highlights I have gleaned this morning:
- Because the tariff differential is implemented in a statute, review of its constitutionality is not precluded by the political question doctrine. In other words, this is not purely a questions of policy or negotiations, it is a tariff law that can be reviewed.
- Totes, as the importer, has standing to pursue the case even though it is only indirectly affected because it is being used to implement the allegedly discriminatory measure.
- Totes' claimed injury is a direct result of alleged express discrimination and, therefore, it falls within the zone of interest protected by the constitution.
However, Totes has a problem. In its complaint, Totes did not assert any facts showing a right to relief. Flipping this around, it seems to be a requirement for pleading real, as opposed to possible injury. What Totes apparently failed to do is assert that what appears to be express gender discrimination is not based upon some legally sufficient governmental justification. Having failed to allege a purpose or intent to disfavor one protected class (e.g., men), the Totes complaint is insufficient to state a claim on which relief can be granted. Another aspect of this is that there is no clear link between these tariff designation of products and the actual use of them. Totes has not asserted in its complaint that men buy men's gloves and women by women's gloves.
As a result, the Court of International Trade dismissed the case. Importantly, the dismissal was without prejudice meaning that Totes may be able to adjust its pleading and re-file. Of course, even if this case cannot be fixed, there are a large number of cases pending before the Court. That means, it appears this issues will get hashed out on the substance.
