How will the TPPA impact women?: Interview with Jane Kelsey

I’m quite sure the select committee on the TPPA is an all-male panel, unlikely to investigate the potential impacts of the TPPA on women sufficiently. Were there women party to the TPP agreement negotiations to begin with? Does the document discuss us?

Yes, there were several key negotiators who were women. The lead negotiator from the U.S. was a woman, Barbara Weisel. The lead negotiator from Singapore was a woman, Ng Bee Kim; and the Canadian one, when they came in, was Kirsten Hillman.

So there were several women – but that doesn’t make any difference to the model. A bit like with climate change or culture, there are these meaningless nods in the agreements.

There is a nonsense provision in the development chapter of the agreement, Article 23.4 – Women and Economic Growth. It’s the only time that women are actually referred to.

This Article talks about “enhancing the opportunities for women, including workers and business owners to participate in the domestic and global economy”. But all it says, is the parties “shall consider undertaking co-operative activities aimed at enhancing the ability of women to access opportunities created by agreement.”

So, it’s a kind of nonsense provision. It shows they’re aware that there will be criticisms about the gender impacts, but that they’re not actually interested in doing anything about it.

What’s your view on what impacts the TPPA, or any corporate free trade agreement (FTA) likely to be implemented, will have on women, in particular, on Maori and Pacific women?

There’s a series of standard issues that come up. One is the impact on low-wage workers, who are predominantly women. Most of the studies, even some of the cheerleaders, will accept that there will be competitive pressure on the labour market, and the labour market pressures will be predominantly in the lower wage areas – and that will put pressure , not just on wages, but on improvements on conditions such as parental leave and equal pay, and increase the insecurity and precariousness of jobs.

Especially if you’ve got increased offshoring of jobs or mobility of capital, so that companies that are integrated across countries can use that to leverage down wages and conditions in the countries that they’re working in.

So if you’re looking in the manufacturing sector, of which we have bugger all, that’s obvious. But increasingly now as well in the services sectors, you’ve got companies delivering electronic services from across the border and that means domestic jobs come under significant pressure. Just think about the retail sector, or even areas like education with offshore delivery of education courses. There’s increasing delivery from outside companies, or threats to take businesses out of the country… given that the big beneficiaries of these agreements are the big transnational corporations.

Small-medium enterprises – a lot of which are women’s, women are clustered in small or medium enterprises – will either not benefit from the TPPA, or will be at greater risk of competition from larger players domestically or from offshore e-providers.

The Tufts university study shows that these trade agreements have systematically increased unemployment, especially at the low-age levels, and have increased inequality within countries. That’s what happens with the model – so if we’re looking at who is trapped at the bottom end there – they’re projecting 5,000 job losses for New Zealand out of the TPPA – who are those going to fall on? So there’s that element, and the ratcheting down of wages that we’ve seen through the kind of competition we’ve now had for three or four decades here.

There are additional concerns about the impacts on areas like affordable medicines – women’s dependency on healthcare services and affordable medicines, especially when the amount of discretionary income they have available to pay for them is less, and when they assume a responsibility for ensuring family and kids have access to meds. The assurances that we’ve had in regards to meds are misleading.

If you have a look at the recent campaign, for example around Keytruda, there is a kind of subtext to this. I think the doctors will be producing something on this soon. Keytruda and the cancer meds and so on – the super expensive ones – belong to the categories of the biologics medicines. They are hugely expensive because of what the pharmaceutical companies demand as payment – and the level of protection the pharmaceutical companies have, allows them to continue demanding those high prices. So rather than attacking the prices they secure, there’s been a demand for the government to put more money into the Pharmac pot to pay the pharmaceutical companies.

Now, I firmly believe that whilst people who need Keytruda have genuinely been campaigning for their own health, the pharmaceutical industry has also been extremely pleased to have that campaign because there are going to be more and more of these medicines that come in, in the future. They’re going to want to have the government continuing to put money into Pharmac.

What we’re going to see is pressures being put on the rest of the health budget. We know that women and families have real problems in accessing affordable meds, especially Maori women and migrant communities. So there are in the health sector significant concerns about the gender skewing of the increased prices in meds that we project are going to happen under the TPPA.

Do you think there will be more overprescription, and marketing of meds typically prescribed to women?

One of the interesting things is that only New Zealand and the U.S. allow the kind of direct marketing that we see on television, like when Jude Dobson does her thing on television advertisements. That is locked-in, now, in the agreement. If you’re allowing it, then you have to continue allowing it. Yes, undoubtedly they tend to be marketing towards not acute medical conditions, but things like incontinence and those kind of things.

Even things like mental health conditions –


Which are seen more among women, for obvious and very understandable, good reasons that could be targeted at the root, but you see how we’re being preyed on, through media as well – I can imagine that escalating if the pharmaceutical industry has more leeway.

Yes, effectively, what the TPPA does with meds, it removes further the ability of the government to regulate and constrain the pharmaceutical industry. And we know that they target in the direction of the easy money, which includes targeting to women.

Could the ISDS used be used quite directly against women?

I’m actually thinking of a recent music industry rape case. Kesha, who’s a pop singer, tried to exit a contract she had with Sony Music, after being raped by her producer Dr. Luke. The supreme court denied Kesha the preliminary injunction that would enable her to exit the contract. It seemed to side with Sony as a company, since they could make a big financial loss from the broken contract, rather than with Kesha as a woman with human rights, and a victim of sexual assault. She was treated as a Sony-owned commodity.

When I saw that happen, one thing I wondered was if it may be an indication of what could happen under the TPPA through the ISDS mechanism. Do you think an investor who profits from the commodification of women could use the ISDS process to prevent measures protecting women being implemented, for instance where the sex trade is concerned?

I’ve heard from a spokesperson at the New Zealand Prostitutes’ Collective that only one sexual abuse case coming from the sex industry, and going through the Human Rights Review Tribunal, can actually be cited, since 2003. So like with the Kesha case, the bringing to light of sex abuse cases in the sex industry are already actively suppressed. Do you think the TPPA could further entrench the idea of women as commodities whose allegations of sexual violence are suppressed because of vested interests?

Let’s look at an analogy – if you take say a crackdown on gambling, or a crackdown on tobacco, there is potential for cases to be brought where foreign interests have been directly affected by government regulation. In the TPPA, one of the issues is that the Standard General Exception, which refers to things like right to take action for public morals, or public order and so on, doesn’t actually apply to investment disputes. Whereas it does in our other agreements.

In theory, you could have a foreign investor, if there were new rules introduced to crackdown on gambling – or reversing the legalisation of prostitution and brothels – you could envisage at least a threat of an investment dispute. My personal instinct is to say that I think in the case of prostitution, it would be really unlikely – certainly that it would go to an actual dispute.

But one of the things that we’re seeing now is that when governments are looking at regulating activities, they conduct these regulatory impact assessments that include: what are the issues that might arise under New Zealand’s trade and investment agreement? And if MFAT saw any potential conflict or challenges there, they would flag it as a factor that needed to be considered, in whether the government went ahead with changes to the law.

The problem is that whenever they produce that advice, it’s blacked out of the impact assessment, so we don’t get to see it.

It could end up being a factor. I’m not that confident it would be protected by the SGE, but I’m not that confident that it would actually bring a dispute because of the furore attached to it. If you think of the furore attached to the tobacco stuff – you would multiply that fifty-fold if they tried to bring an investment dispute around this.

What is more possible – is if there were moves to really significantly increase the protection for women in the labour market.

Do you think that the TPPA or any of the other FTAs might create more favourable conditions for the sex industry to expand, particularly if there are more women who are in poverty and in desperate circumstances – so there is more of a “supply” available? Do you think it will then also affect the rates of sex trafficking?

I would say, to the extent that this agreement reinforces a model that we have seen create inequality and job insecurity and so on for women, it is a contributor to that environment.

Where it may have more consequences are in countries like in Asia, where the job losses and job insecurities may be more significant. That includes the countries like Vietnam and Malaysia, but also countries that are wanting to join like Thailand, where increased job insecurity and job losses that would occur for women would intensify that.

There have already been issues in the U.S. about Malaysia and trafficking – the U.S. wanted to have specific rules on human trafficking written into the agreement and Malaysia is seen as “problematic” in terms of not having effective constraints on human trafficking. But that was more about the U.S. using leverage to effect Malaysia’s lack of rules.

I would think that the most direct impact on the sex industry through the TPPA is through the increased inequalities and instabilities in the Asian context.

Here, what it could do, is we know that there have been people coming in under the “education export” industry – you’ve got people coming in with Visas for education purposes, who then become part of the sex industry. New Zealand has been promoting its “education export” sector. The offensive interest, what we call the offensive interest in an economic sense, of getting international more international students here seems to take precedence over insuring that they don’t actually end up in the sex trade.

So, that would be the most direct link I could see.

I heard Catherine Davis, up in Ahipara, cite a statistic where she said that when the government went up there with Statoil to try to get more oil exploration happening, they obviously sold the idea as being in the interests of local economic growth, and job creation – so Catherine used this example of, Well, in Taranaki, oil industry expansion lead to a 200% increase in prostitution.

Yeah – if you are looking at the social fallout and impacts from increased foreign investment, especially in resource exploitation, then you can see downsides of that kind occurring, similarly in aspects of the tourism sector. Again, it’s more a consequence of the model that the TPPA promotes, and the difficulty of being able to restrict foreign investment in areas, in sectors where the social fallout, as well as the environmental fallout, is significant.

A related issue, then – what might happen if the industry does expand – and we see an increase in its promotion, and more objectification of women in media and advertising. Will we have much chance in tackling the issues of sexism-saturated media?

budweiserA crackdown on advertising that banned a variety of forms of sexist advertising could end up being challenged by the advertising industry. I could see that being a real possibility, and having a real “chilling effect” on the government’s willingness to adopt innovative rules on sexist advertising, because there would be a huge outcry not only from the advertising industry but from those who seek to sell their prooducts by commodification of women through advertising.

The tobacco companies are now targeting women – how do you stop them targeting women if they’re able to bring these investment disputes. Likewise, the alcohol industry targeting women. Especially in parts of Asia – well, especially in the “developing world” so-called – is making smoking attractive and trendy to young women, likewise with alcohol. You can see here the marketing of alcohol to women, and young women especially. And so there are attempts to crack down on that, that’s when the tobacco and alcohol industry start to threaten to use the ISDS.

That’s a classic use of what we call the “chilling effect” of the threats of bringing these disputes. I’m just doing stuff on alcohol at present, up in Asia, because they’re trying to bring in laws that will constrain both the tobacco and alcohol industry in marketing and targeting younger women in particular, and they’re using ISDS as a threat.

So those are the more direct gender impacts.

Will we see an increase in domestic violence under the TPPA?

The entire model promotes insecurity, promotes insecurity, makes women more vulnerable, whether in the workforce or in the social environment. This kind of economic structure and ‘hands-off’ approach to regulating social fallout and social harm. So all those create conditions that intensify the risks and occurrence of domestic violence, and that promote weaker safety nets, because government are competing for international investors, and trying to ratchet down the amount of tax and the amount of expenditure – and the whole model of leaving social protections to charities and to private sector or not having any protections at all.

It’s the problem with the model.

How does the TPPA tie in with moves to inflict social bonds, on support services? What might happen to women’s support services under one of these FTAs, like Women’s Refuge, shelters, Rape Crisis centres, which are already under huge pressure?

That’s one of the more direct impacts. Because those social bonds would be considered to be a financial investment, under the agreement. So if a new government came in and decided that they wanted to scrap social bonds, or an investor had been doing a whole lot of prior investment with a view to bidding for social bonds and the government decided it wasn’t going to proceed with them, then it could claim that its rights as an investor were being impacted on, and it could bring an investment dispute in relation to the cancelation of those.

That’s similar to concerns that we’ve raised around things like Public-Private Partnership contracts for hospitals or age care facilities or schools, and so on. You’ve got private interests who are not interested at all in the social wellbeing of those who are affected by, for example, the mental health bonds, but who simply view them as financial instruments that are to be traded in the financial markets. That’s a big issue from my viewpoint.

I’m trying to imagine what that would mean, specifically, for a Women’s Refuge or Rape Crisis centre.

It’s a bigger picture that rather than seeing the support services as being a responsibility of the state, the government wants to exit from responsibility and funding, and genuine community based partnership, instead viewing them as market transactions. So they are commodified services for which you bring in a financial investor or a provider through a contract.

I’m struggling with the idea of there being a market for Rape Crisis centres, which would become a profitable investment…!

But what they’re doing is introducing an intermediary – a financial intermediary that ends up having an interest in the return on their investment, in what should be a fundamentally human, social service. What’s worrying is, that the indicators that they use for returns to the investor are completely unrelated to how the service providers view what is success.

Again, it’s a problem with the model, and the TPPA comes in as a way of locking in that model, and creating opportunities for the finance sector to exploit and benefit from that model.

Then we’re seeing things like in Britain, interest growing in allowing people to legally define their own gender – so to legally undermine women’s existence as a biological category and a social class oppressed on that basis. I wonder how that might play into the battle to maintain support services for women.

I don’t know how that would intersect directly. There are three levels at which you look at these agreements – the first is, what’s the model of neoliberal globalisation we’ve had for the last three and a half decades, and how does that screw women. The second is, the particular economic impacts of the rules of these agreements, and the gender bias that is intrinsic to them: whether you’re looking at employment, access to medicines, investor-state disputes. The third is, what are the particular perverse incentives that are applied to the commercial interests when it comes to women – that includes things like the social bonds, the Public-Private Partnerships.

The PPPs more generally have real gender issues, because if you’re looking at PPP hospitals and healthcare facilities, PPP schools, water provisions, transport, toll roads, social bonds – they all have real impacts on women as both low-income accessors of those services, who are, in terms of public services, notoriously more dependent on those kinds or services – but also because women take responsibility for family access to those services.

As soon as you have big, foreign companies running water services, or hospital services or education services or toll roads, or social bonds stuff – they are all interested in extracting profits and they don’t give a damn about the social consequences or the social relevance of the services provided.

The gender impact assessments that have been done are generally more around the model and the employment impacts and the increase in inequality. I think you’re dead right in focussing on the lack of any human rights impact assessment, including gender rights impact assessment, because that’s where all of these issues should have been unpacked, and they haven’t been and they won’t be.

But it sounds like it’s just as expected: more of the same.

And the question is, if they keep digging us into this hole, how do we develop a different model that doesn’t have all of the fallout that we’ve had from the neoliberal model? And actually puts women at the centre, rather than at the vulnerable periphery.




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