LGBTQ Protections in New North American Trade Agreement Nullified With a Footnote

The U.S. can continue to discriminate against non-federal LGBTQ employees.

A new North American trade agreement has been modified to allow the United States to skirt a requirement to provide protections for LGBTQ workers from employment discrimination.

The United States–Mexico–Canada Agreement (USMCA), which is also known as the “New NAFTA” deal, includes language ensuring each country “shall implement policies that it considers appropriate to protect workers against employment discrimination on the basis of sex (including with regard to sexual harassment), pregnancy, sexual orientation, gender identity, and caregiving responsibilities.”

Last month, an unnamed Canadian official told Politico they considered it a “win for us” that the country was able to “get gender identity included in the agreement.”

However, the addition of a footnote allows the United States to continue to provide no protections for any non-federal worker. It reads:

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.

The Civil Rights Act of 1964 includes protections against discrimination on the basis of sex, but federal courts have been divided on whether that includes protections for LGBTQ people, with a number arguing it does not. There are three petitions currently before the U.S. Supreme Court asking it to rule on the issue, which could come as soon as its next session.

Republicans had protested the trade deal on the basis of the inclusion of LGBTQ protections, with 40 lawmakers sending an open letter to President Trump urging him not to sign it with those in place, arguing, “A trade agreement is no place for the adoption of social policy.”

Geoffrey Gertz, a fellow in the Global Economy and Development program at the Brookings Institution, tweeted out his criticism of the nullification of LGBTQ protections via the footnote in the trade deal, calling it “ridiculous,” and warning that it would “make progressives even more suspicious of engaging with trade liberalization.”

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