The Trump administration seems to have edited out LGBTQ protections in the new North American trade agreement with Canada and Mexico (known as the USMCA). The change, an apparent gesture to a group of the most anti-LGBTQ members of Congress, ensures the administration’s own anti-LGBTQ efforts can continue without undermining the agreement.
Originally, the drafted trade agreement called on all three countries to establish “policies that protect workers against employment discrimination on the basis of sex, including with regard to pregnancy, sexual harassment, sexual orientation, gender identity.”
In the final version, however, a new footnote was added that significantly undermines the United States’ obligation to uphold these protections. It states:
The United States’ existing federal agency policies regarding the hiring of federal workers are sufficient to fulfill the obligations set forth in this Article. The Article thus requires no additional action on the part of the United States, including any amendments to Title VII of the Civil Rights Act of 1964, in order for the United States to be in compliance with the obligations set forth in this Article.
This is a reference to a pair of Executive Orders President Obama implemented protecting both federal employees and the employees of federal contractors from discrimination on the basis of their sexual orientation and gender identity. All of the country’s other LGBTQ workers enjoy no enumerated protection under the law, though many courts have agreed that Title VII’s protections on the basis of “sex” also protect LGBTQ people.
The footnote basically ensures that the United States is not held responsible to protect LGBTQ workers to the same degree as Canada and Mexico.
This caveat ensuring the United States doesn’t have to amend Title VII to be in compliance bears a strong resemblance to the administration’s transgender erasure memo as well as its alleged attempts to erase “gender” language from United Nations documents. “Sex,” the administration has consistently insisted, refers only to “biological sex” and extends no protection to transgender people and the discrimination they experience because of their gender identity. Last year, for example, then-Attorney General Jeff Sessions reversed the Department of Justice’s policy of advocating for transgender workers as being protected under Title VII, which protects against discrimination on the basis of “sex.”
A group of 40 of Congress’ most anti-LGBTQ lawmakers, including Reps. Vicky Hartzler (R-MO), Steve King (R-IA), and Louis Gohmert (R-TX), is likely responsible for influencing the edit to the trade agreement. The members, all of whom are Republican, sent a letter to Trump last month threatening that they would not approve the agreement unless the language was removed.
They blatantly applauded the administration for its work dismantling LGBTQ protections. “At the same time your Administration is carrying out a cohesive agenda regarding policies surrounding sexual orientation and gender identity, in the Departments of Justice and Health and Human Services specifically,” they wrote,” it is deeply troubling that the Office of the U.S. Trade Representative (USTR) has included contradictory language in the U.S.-Mexico-Canada Agreement.”
The lawmakers insisted that “a trade agreement is no place for the adoption of social policy,” and they also warned that the language would impede Trump’s efforts to further erode protections on the basis of sexual orientation and gender identity (SOGI). In fact, they specifically pointed out that the language would impede Trump from rolling back Obama’s LGBTQ executive orders. “If the USMCA is enacted with this SOGI language, you would lose your ability to rescind these Obama-era Executive Orders or roll back their implementing regulations to create a unified SOGI policy,” they note, seemingly in anticipation of such a move.
Unfortunately for the letter’s signatories, the footnote actually creates that very problem, essentially codifying Obama’s executive orders as a mandatory part of the trade agreement. Though the agreement prevents him from rescinding the orders, his administration is still finding ways to undermine their protections, such as its recent move to erase guidance from the Office of Personnel Management laying out how to respect transgender employees.
The lawmakers will nevertheless likely be pleased that the footnote maintains the status quo and spares them from having to extend new protections or even reconsider their efforts to actually make LGBTQ workers more vulnerable to discrimination.
Their references to a so-called “cohesive” or “unified SOGI policy,” for example, likely refer to a bill Republican lawmakers introduced last year called the “Civil Rights Uniformity Act.” Not unlike the administration’s proposed transgender erasure memo, the bill would clarify that the term “sex” in federal law only applies to “a person’s genetic sex” and would dictate that “no Federal civil rights law shall be interpreted to treat gender identity or transgender status as a protected class.” If such a bill were ever codified into law, it would decimate protections that many transgender people have already found in the courts.
One such example easily demonstrates why all these efforts to narrowly define “sex” to exclude transgender people are naive. In a case that’s now 10 years old, a federal judge ruled that a Library of Congress employee was wrongly terminated for transitioning under Title VII’s sex protections, explaining his reasoning using a simple analogy. If an employer treated Christians and Jews equally but discriminated against “converts” between the two, District Judge James Robertson wrote, “that would be a clear case of discrimination ‘because of religion.” Thus, discriminating against a transgender person is a clear case of sex discrimination.
Many other courts have agreed in the past decade, using the “sex” protections found in Title VII to protect transgender employees and similarly protecting transgender students under Title IX. However, the Supreme Court, which now has a conservative majority, may reevaluate that interpretation as soon as this coming year, and the Trump administration has already made clear that it hopes the Court rolls back the protections other courts have extended.
In the wake of the Republican lawmakers’ letter, Canadian Prime Minister Justin Trudeau had, in fact, defended the original draft’s language, saying it “represents Canadian values.” Given the footnote only refers to the United States, it changes nothing for Canada or Mexico.
But as far as the Trump administration is concerned, the change is a clear attempt to make sure that the agreement does nothing to compel new protections on the basis of sexual orientation or gender identity — so that it can continue to dismantle and undermine the limited protections U.S. LGBTQ workers currently enjoy.