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The Trump Administration Effectively Removed LGBTQ Protections from the New NAFTA

Last Friday, the leaders of Canada, Mexico, and the United States signed a new trade agreement designed to replace NAFTA,  the existing North American Free Trade Agreement that Trump campaigned against during his run for president.

The new agreement, clunkily titled the United States–Mexico–Canada Agreement (USMCA), still needs to be ratified by the legislatures of each country. But now that the final document is public, it’s clear that it isn’t that much different from NAFTA. In 1994, former president Bill Clinton signed NAFTA in an effort to remove trade barriers between the three North American nations. The USMCA is essentially an update with a new name, some new provisions for auto industry production and intellectual property, tariffs on steel and aluminum, and a last-minute sneak attack on LGBTQ equality.

Wait, what?

Okay, so NAFTA didn’t actually have any LGBTQ protections. But the new USMCA did, because Canadian Prime Minister Justin Trudeau reportedly insisted that they be included.

Because a trilateral trade agreement impacts workers in all three nations, Canada negotiated for labor protections in the USMCA that required each of the three nations to “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.”

But because that simple provision — one line in a massive international trade agreement comprised of hundreds of pages with dozens of annexes and side letters — incensed conservative GOP members of Congress so much they wrote a letter urging Trump to scrap the whole deal unless the LGBTQ protections were removed,  a last-minute footnote was added to the USCMA that effectively did just that.

“The United States’ existing federal agency policies regarding the hiring of federal workers are sufficient to fulfill the obligations set forth in this Article,” reads the new footnote. “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.”

Basically, the U.S. claimed that because of a single Obama executive order that included LGBTQ protections for employees of federal contractors, the country is exempt from the provision that merely suggests policies that each country “considers appropriate” in terms of banning employment discrimination.

That’s a major problem for two reasons: Because federal contractors make up a small amount of the overall workforce and there is no federal law whatsoever that prevents private-sector businesses from firing workers just because they are LGBTQ, and because the Trump administration has been actively trying to chip away at the one teeny-tiny nondiscrimination clause that does protect LGBTQ federal contractors — by creating a “religious liberty” loophole that allows even those federal contractors to discriminate as much as they want as long as they cite religious reasons for doing so.

It’s a lot of circuitous bureaucratic lingo to slog through, but make no mistake: the Trump administration just blocked the best chance LGBTQ Americans have seen in years of finally being protected from employment discrimination.

LGBTQ advocates said the last-minute change was likely due to pressure asserted by the 38 GOP congresspeople who signed the November 16 letter protesting the LGBTQ protections, which said “a trade agreement is no place for the adoption of social policy.”

“That the administration would cave to the wishes of anti-LGBTQ Republican Members of Congress who desire to secure for employers the ability to discriminate is both unfortunate and telling about their priorities,” said Jennifer C. Pizer, Law and Policy Director at Lambda Legal, in an email to INTO, “And also ineffectual because the sex discrimination prohibitions of the Civil Rights Act, properly understood, already forbid discrimination on the basis of sexual orientation or gender identity. “

According to the Washington Blade’s White House correspondent Chris Johnson, “a Canadian official said the footnote [nullifying the LGBTQ protections] was added by the United States.”

In the U.S. currently, only 21 states and the District of Columbia have laws that protect workers from being fired due to their perceived or actual sexual orientation or gender identity, according to the Human Rights Campaign. That means over half of U.S. states lack protections for LGBTQ workers — and with no federal law to fall back on, many LGBTQ advocates pinned their hopes (though loosely) on Canada’s provision in the USMCA.

Pizer cited the Equality Act as another hopeful route for federal protections; the legislation has died in committee twice in the past 5 years but is expected to be reintroduced in 2019.

The strange footnote didn’t just concern LGBTQ advocacy groups; even trade economists criticized the decision. Geoffrey Gertz, a trade diplomacy expert at the Brookings Institution, called the addition of the footnote “ridiculous” in a Monday tweet.

Sarah Kate Ellis, president of GLAAD, also addressed the move on Twitter, chiding Trump for “caving” to anti-LGBTQ political pressure.

President Trump himself has yet to comment on the bait-and-switch move that watered down the LGBTQ protections in the new trade agreement. Instead, he briefly tweeted a parting blow to the NAFTA that he had campaigned against.

“The United States, Mexico and Canada worked so well together in crafting this great document,” said Trump in a tweet on Friday. “The terrible NAFTA will soon be gone. The USMCA will be fantastic for all!”

This article has been updated to include a statement from Lambda Legal.


Mary Emily O'Hara

Mary Emily O'Hara is Associate Editor of INTO.