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Gender-Identity Protection, Trade, and the Trump Administration: Gender-Identity Protection, Trade, and the Trump Administration:
A Tale of Reluctant Progressivism A Tale of Reluctant Progressivism
Jean Galbraith
University of Pennsylvania Carey Law School
Beatrix Lu
University of Pennsylvania Carey Law School
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44
THE YALE LAW JOURNAL FORUM
O CTOBER 7, 2019
Gender-Identity Protection, Trade, and the Trump
Administration: A Tale of Reluctant Progressivism
Jean Galbraith & Beatrix Lu
abstract. The Trump Administration has been hostile to transgender people, stripping away
many protections from discrimination established by the prior administration. It is therefore strik-
ing that President Trump’s signature international agreement to date—the “new NAFTA” recently
negotiated with Canada and Mexico—includes a provision requiring all three countries to imple-
ment appropriate policies to protect workers against discrimination based on gender identity. This
provision has a similar requirement with respect to discrimination on the basis of sexual orienta-
tion, notwithstanding the fact that the Trump Administration’s domestic policies have also shown
hostility to such protections. How did this provision come to be included in the trade agreement?
How powerful is it in practice? And what lessons does its inclusion have for international trade law
more generally?
Drawing on subtle changes in the wording of the initial and revised texts of the trade agree-
ment, this Essay hypothesizes that the initial inclusion of gender-identity and sexual-orientation
protections took place with little to no interagency consultation with the Department of Justice,
which has taken a strong position against such workplace protections. Once these protections
made it into the initial public dra, the Trump Administration could—and did—water down the
protections in subsequent negotiations, but the Administration could not remove the protections
entirely. The net eect is an international commitment to the protection of gender identity and
sexual orientation that is substantively weak but still meaningful—and that carries considerable
expressive force. The inclusion of the protections shows that trade agreements can lead even pow-
erful governments to make value-laden commitments at odds with their own domestic agendas.
introduction
When the initial text of the United States-Mexico-Canada Agreement (US-
MCA) was released in the fall of 2018, it included a provision that surprised and
intrigued many observers. In Article 23.9, the three countries committed to “im-
plement[ing] policies that protect workers against employment discrimination
gender-identity protection, trade, and the trump administration
45
on the basis of sex, including . . . sexual orientation [and] gender identity.”
1
How did this language—far more progressive than that found in any previous
U.S. trade agreement
2
—end up in a trade agreement negotiated by the Trump
Administration?
Some Trump Administration ocials must have wondered this too, for the
language changed. As the USMCA was finalized for signature, Article . dwin-
dled to committing each country to “implement policies
that it considers appro-
priate to protect workers against employment discrimination on the basis of
sex, . . . sexual orientation [and] gender identity.”
3
A footnote further down-
played the eect of this provision for the United States.
4
Yet although these
changes stripped Article . of most of its substantive impact, the Agreement
retained language assuring freedom from discrimination on the basis of sexual
1. United States-Mexico-Canada Agreement Text, OFF. U.S. TRADE REPRESENTATIVE (Oct. ,
), http://web.archive.org/web//https://ustr.gov/trade-agreements/free
-trade-agreements/united-states-mexico-canada-agreement/united-states-mexico [https://
perma.cc/H-DHNU] [hereinaer Initial USMCA]. Throughout this Essay, we discuss
both the gender-identity and the sexual-orientation portions of this provision. We emphasize
the gender-identity portion in particular, however, because the Trump Administration’s hos-
tile domestic policies on gender identity have been even more pronounced and salient than
have its policies on sexual orientation. See infra notes -, -, and accompanying text
(noting some policy actions relevant to both gender identity and sexual orientation and some
policy actions focused exclusively on gender identity).
2. Most of the United States’ prior trade agreements merely rearm commitments and permit
cooperative activities related to the International Labour Organization (ILO) standards which
require countries “to respect, to promote and to realize . . . the elimination of discrimination
in respect of employment and occupation.” I
NT’L LABOUR ORG., ILO DECLARATION ON FUN-
DAMENTAL
PRINCIPLES AND RIGHTS AT WORK AND ITS FOLLOW UP (June , ); see, e.g.,
United States-Korea Free Trade Agreement art .()(e), U.S.-S. Kor., June , ,
Stat. ; Australia-United States Free Trade Agreement art. .(), U.S.-Aus., May , ,
Stat. ; Chile-United States Free Trade Agreement annex .()(a), U.S.-Chile, June
, , Stat. . Agreements that explicitly mention gender or sex discrimination do so
in the context of cooperative activities, rather than parties’ domestic obligations. See, e.g., Pan-
ama-United States Trade Promotion Agreement annex .()(l), June , , Stat. ;
United States-Colombia Trade Promotion Agreement annex .()(n), U.S.-Colom., Nov.
, , Stat. ; Dominican Republic-Central America Free Trade Agreement
(CAFTA-DR) annex .()(l), Aug. , , Stat. .
3. Agreement Between the United States of America, the United Mexican States, and Canada
// Text, O
FF. U.S. TRADE REPRESENTATIVE (Nov. , ), https://ustr.gov/trade-
agreements/free-trade-agreements/united-states-mexico-canada-agreement/agreement
-between [https://perma.cc/EYE-YBC] [hereinaer Finalized USMCA] (emphasis
added).
4. Id. at n. (“The Article . . . requires no additional action on the part of the United States . . .
in order for the United States to be in compliance with the obligations set forth in this Arti-
cle.”). The implications of this footnote are discussed in more detail below. See infra notes -
and accompanying text.
the yale law journal forum October ,
46
orientation and gender identity that contrasts sharply with other Trump Admin-
istration policies.
5
This Essay uses Article . as a window into understanding how interna-
tional negotiations can lead even powerful governments to make value-laden
commitments at odds with their own domestic agendas. One burgeoning ac-
count of international trade law is that trade agreements have become vehicles
by which more powerful Western economies push changes upon less-developed
countries with respect to labor, the environment, human rights, and governance
practices.
6
Article . reminds us that this account is not exhaustive, and that
influence in other directions is possible as well. Here, Canada succeeded in writ-
ing an endorsement of progressive values into the USMCA—language at odds
with the broader agenda set by the executive branch of the more powerful and
equally developed United States.
We hypothesize that Canada’s success may be tied to internal dynamics
within the U.S. executive branch. The Oce of the U.S. Trade Representative
(USTR), which led the U.S. negotiations of this time-sensitive agreement, may
have placed a lower priority on avoiding protections for sexual orientation and
gender identity than did other actors within the Trump Administration.
7
As we
will show, subtle changes in the wording of the initial and revised versions of
Article . suggest that, prior to the release of the initial version, USTR likely
5. See infra note and accompanying text.
6. See, e.g., EMILIE M. HAFNER-BURTON, FORCED TO BE GOOD: WHY TRADE AGREEMENTS BOOST
HUMAN RIGHTS (); Meredith Kolsky Lewis, Human Rights Provisions in Free Trade
Agreements: Do the Ends Justify the Means?, L
OY. U. CHI. INT’L L. REV. , - (); Paul
Mertenskotter & Richard B. Stewart, Remote Control: Treaty Requirements for Regulatory Proce-
dures, C
ORNELL L. REV. , - (); Zolomphi Nkowani, International Trade and
Labour: A Quest for Moral Legitimacy, J.
INT’L TRADE L. & POL’Y , (); Anne-Carlijn
Prickartz & Isabel Staudinger, Policy vs Practice: The Use, Implementation and Enforcement of
Human Rights Clauses in the European Union’s International Trade Agreements, E
UR. & WORLD:
L. REV. , - (); see also Susan Ariel Aaronson & Jean Pierre Chauour, The Wedding
of Trade and Human Rights: Marriage of Convenience or Permanent Match?, W
ORLD TRADE
ORG., https://www.wto.org/english/res_e/publications_e/wtr_forum_e/wtr_feb
_e.htm [https://perma.cc/EJM-YP] (discussing how middle-income and developing
countries are reluctant to accept—let alone demand—human-rights provisions in trade agree-
ments, but may become more receptive to these provisions upon becoming wealthier or more
powerful).
7. In addition to updating the North American Free Trade Agreement (NAFTA), the core aim
of USTR was to “rebalance[]” the international agreement with respect to U.S. “workers and
businesses” on issues like outsourcing, rules of origins, and government procurements. See
Press Release, Ambassador Lighthizer, Statement of USTR Robert Lighthizer at the Closing
of the Seventh Round of NAFTA Renegotiations (Mar. , ), https://ustr.gov/about
-us/policy-oces/press-oce/press-releases//february/statement-ustr-robert
-lighthizer [https://perma.cc/GJT-UAUA].
gender-identity protection, trade, and the trump administration
47
did not discuss the Article’s content with the Department of Justice, which has
taken a strong position against workplace protections tied to sexual orientation
and gender identity. The tight timeline surrounding the initial version, the pri-
ority President Trump placed on reaching a deal, and the apparent lack of inter-
agency consultation all seem to have contributed to USTR’s initial acceptance of
Article .’s protective language.
i. protections against sex-related discrimination in the
initial and “scrubbed” usmca
In , President Trump began the process of renegotiating the North
American Free Trade Agreement (NAFTA), a trilateral trade agreement between
the United States, Mexico, and Canada that originally came into force in .
8
President Trump had campaigned, in part, on either renegotiating or withdraw-
ing from NAFTA, to which he referred as “the single worst trade deal ever ap-
proved in this country,” and which he blamed for decreasing domestic manufac-
turing.
9
Thus, aer lengthy and contentious negotiations, the United States
reached a new agreement with Mexico and Canada on October , . Securing
this agreement came down to the wire, as U.S. law eectively requires a sixty-
day delay before the President may sign the agreement,
10
and the negotiators
wanted the agreement signed before Mexico’s government changed hands on
December .
11
Following the publication of the initially agreed-upon text on Oc-
tober , the agreement then went through a “legal scrub”—a final vetting by law-
yers that is technical in theory but can include some substantive renegotiation in
8. See Jean Galbraith, Contemporary Practice of the United States Relating to International Law,
A
M. J. INT’L L. , (). For a discussion of the initiation of these negotiations and,
more generally, of the challenges of revising labor chapters in trade agreements, see Kathleen
Claussen, Separation of Trade Law Powers, Y
ALE J. INT’L L. , - ().
9. Jackie Calmes, Trump Scores Points on Trade in Debate, But Not So Much on Accuracy, N.Y. TIMES
(Sept. , ), https://www.nytimes.com////us/politics/hillary-clinton-donald
-trump-trade-tpp-naa.html [https://perma.cc/KYP-KEZ].
10. U.S.C. (a)()(B) (); see also Galbraith, supra note , at .
11. See Elisabeth Malkin, Mexico’s New Leader, Once a NAFTA Foe, Welcomes New Deal, N.Y. TIMES
(Oct. , ), https://www.nytimes.com////world/americas/naa-mexico.html
[https://perma.cc/UE-JBK] (noting that while both the outgoing and incoming Mexican
presidents supported the agreement, the outgoing president saw it as “a win he can claim was
part of his legacy” while the incoming president was thereby “free[d] from messy negotiations
at the start of his administration”).
the yale law journal forum October ,
48
practice.
12
On November , the parties released a final version of the text and
all three countries’ leaders signed the USMCA.
13
Canada had come to the negotiating table with a progressive trade agenda
that included protections for gender rights and, specifically, for gender identity.
14
A side agreement to the original NAFTA had included some language about sex
discrimination,
15
but le considerable room for improvement. While USMCA
negotiations were underway, Canada was simultaneously modernizing its free-
trade agreements with Chile and Israel such that, among other things, those
agreements would include provisions related to gender and trade.
16
Yet those
agreements did not include language on sexual orientation and gender identity.
Elsewhere in the world, however, an example of such protections had emerged.
12. See Wolfgang Alschner, Legal Scrubbing or Renegotation? A Text-as-Data Analysis of How the EU
Smuggled an Investment Court into Its Trade Agreement with Canada, M
APPING BITS BLOG (Mar.
, ), http://mappinginvestmenttreaties.com/blog///legalscrubbing-ceta
[https://perma.cc/J-BNJ] (discussing how renegotiation can occur during a scrub).
13. See Galbraith, supra note , at . The agreement has no ocial name, but USMCA is the
name the United States uses, see id. at n., and we use it here.
14. See Doug Palmer & Alexander Panetta, New U.S.-Canada-Mexico Trade Pact Promises to
Strengthen LGBTQ Rights, P
OLITICO (Oct. , , : PM EDT), https://www.politico.com
/story////new-naa-lgbtq-rights- (quoting an unnamed Canadian ocial,
who stated, “We viewed it as important to get gender identity included in the agreement . . . .
It’s a win for us”); Chrystia Freeland, Minister of Foreign Aairs of Can., Address by Foreign
Aairs Minister on the Modernization of the North American Free Trade Agreement
(NAFTA) (Aug. , ), https://www.canada.ca/en/global-aairs/news/
//address_by_foreignaairsministeronthemodernizationohenorthame.html [https://
perma.cc/WPY-YQJT] (stating that Canada wanted to “add[] a new chapter on gender
rights, in keeping with our commitment to gender equality”).
15. North American Agreement on Labour Cooperation art. ()(m), annex arts. -, Sept. ,
, I.L.M. () (promoting cooperative activities regarding the “equality of men
and women” and setting out as labor principles the elimination of employment discrimina-
tion, equal pay or men and women).
16. Canada-Israel Free Trade Agreement, Can.-Isr., art. , Can. T.S.; Canada-Chile Free
Trade Agreement, Can.-Chile, app. II, ch. N bis, Can. T.S. /. For a broader overview
of gender-related provisions in trade agreements, see T
HE NEW WAY OF ADDRESSING GENDER
EQUALITY ISSUES IN TRADE AGREEMENTS, POLICY BRIEF NO. , UNITED NATIONS CONFERENCE
ON
TRADE & DEV. - (Oct. ), https://unctad.org/en/PublicationsLibrary
/presspbd_en.pdf [https://perma.cc/BJH-VNEY]; Raj Bhala & Cody Wood, Two Di-
mensional Hard-So Law Theory and the Advancement of Women’s and LGBTQ+ Rights Through
Free Trade Agreements, G
A. J. INT’L & COMP. L. (); Foreign Trade Info. Sys., Trade
and Gender: Summary Table of Language Referring to Gender Equality in Trade Agreements, O
RG.
AM. STATES (), http://www.sice.oas.org/Genderandtrade/GT_mandates_table_e.asp
[https://perma.cc/TS-TRP]; and José-Antonio Monteiro, Gender-Related Provisions in Re-
gional Trade Agreements, (World Trade Org., Sta Working Paper ERSD--, ),
https://www.wto.org/english/res_e/reser_e/ersd_e.pdf [https://perma.cc/QV
-TJKU].
gender-identity protection, trade, and the trump administration
49
In , a Chile-Uruguay free-trade agreement stated that the countries “recog-
nize[d] the importance of promoting policies and practices of gender equal-
ity . . . [and] the elimination of every form of discrimination against women
based on sex, . . . sexual orientation, [and] gender identity.”
17
In the NAFTA renegotiations, Canada successfully bargained for gender-re-
lated protections in the chapter on labor.
18
The USMCA became the first trade
agreement involving any of the three countries to explicitly include protections
for sexual orientation and gender identity.
19
In the initial text released on Octo-
ber , , Article . was titled “Sex-Based Discrimination in the Workplace”
and stated:
The Parties recognize the goal of eliminating sex-based discrimination in
employment and occupation, and support the goal of promoting equality
of women in the workplace. Accordingly, each Party shall implement pol-
icies that protect workers against employment discrimination on the ba-
sis of sex, including with regard to pregnancy, sexual harassment, sexual
orientation, gender identity, and caregiving responsibilities, provide job-
protected leave for birth or adoption of a child and care of family mem-
bers, and protect against wage discrimination.
20
This provision triggered considerable interest. Its progressive approach was
contrasted starkly with other policy choices made by the Trump Administration,
including its domestic decisions
21
to remove Obama-era protections for
17. Tratado de Libre Comercio Uruguay-Chile, Uru.-Chile, art. .(), Apr. , (author’s
translation).
18. There is little public evidence regarding Mexico’s role in the negotiations on this issue. As
noted infra note , Mexico passed a domestic law providing protection against workplace
discrimination on the bases of sexual orientation and gender identity in April , some
months before the conclusion of the USMCA negotiations.
19. See Trade and Gender, supra note ; CONFERENCE BD. OF CAN., MAKING GENDER-RESPONSIVE
FREE TRADE AGREEMENTS - tbl. ().
20. Initial USMCA, supra note , art. ..
21. See, e.g., Katie Benner, Federal Prisons Roll Back Rules Protecting Transgender People, N.Y. TIMES
(May , ), https://www.nytimes.com////us/politics/justice-department
-transgender-inmates-crime-victims.html [https://perma.cc/NFA-LTRZ]; Erica L. Green,
Katie Benner & Robert Pear, ‘Transgender’ Could Be Defined Out of Existence Under Trump Ad-
ministration, N.Y.
TIMES (Oct. , ), https://www.nytimes.com////us/
politics/transgender-trump-administration-sex-definition.html [https://perma.cc/VC
-EGT]; Jeremy W. Peters, Jo Becker & Julie Hirschfeld Davis, Trump Rescinds Rules on Bath-
rooms for Transgender Students, N.Y.
TIMES (Feb. , ), https://www.nytimes.com
////us/politics/devos-sessions-transgender-students-rights.html
[https://perma.cc/PVN-RELQ]. Most recently, the Department of Health and Human
the yale law journal forum October ,
50
transgender persons in prisons, schools, and the military, as well as its attempts
to remove the word “gender” from international documents.
22
When the final text was released sixty days later, on November , the pro-
vision had been renegotiated and its protections watered down. The finalized
text of Article ., which was renamed “Discrimination in the Workplace,” now
read:
The Parties recognize the goal of eliminating discrimination in employ-
ment and occupation, and support the goal of promoting equality of
women in the workplace. Accordingly, each Party shall implement poli-
cies
13
that it considers appropriate to protect workers against employ-
ment discrimination on the basis of sex (including with regard to sexual
harassment), pregnancy, sexual orientation, gender identity, and caregiv-
ing responsibilities; provide job-protected leave for birth or adoption of
a child and care of family members; and protect against wage discrimi-
nation.
23
Further, the United States added footnote :
The United States’ existing federal agency policies regarding the hiring
of federal workers are sucient 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
Services (HHS) under Trump has proposed a rule that would reverse the Obama-era inter-
pretation of the Aordable Care Act’s prohibition on sex discrimination to cover discrimina-
tion on the basis of gender identity and sexual orientation. See Nondiscrimination in Health
and Health Education Programs or Activities, Fed. Reg. , (June , ); see also
Defendant’s Memorandum in Response to Plainti’s Motions for Summary Judgment at ,
Franciscan Alliance, Inc. v. Azar, No. :-cv- (N.D. Tex. Apr. , ) (arguing that
the United States “has returned to its longstanding position that the term ‘sex’ in Title VII
does not refer to gender identity,” so the Aordable Care Act should not be read to cover
discrimination based on gender identity either). Until the final rule is promulgated, HHS has,
as a matter of enforcement, suspended all subregulatory guidance that interprets or imple-
ments the Aordable Care Act to prohibit discrimination on these grounds. See Nondiscrim-
ination in Health and Health Education Programs or Activities, supra, Fed. Reg. at ,.
22. Around the same time the USMCA was being negotiated and signed, the Trump Administra-
tion tried to remove references to “gender” in other international documents, for example by
replacing the phrase “gender-based violence” with “violence against women” in UN human-
rights documents. See Julian Borger, Trump Administration Wants to Remove ‘Gender’ from UN
Human Rights Documents, G
UARDIAN (Oct. , : PM ET), https://
www.theguardian.com/world//oct//trump-administration-gender-transgender
-united-nations [https://perma.cc/WDG-CBRJ].
23. Finalized USMCA, supra note , art. . (emphasis added).
gender-identity protection, trade, and the trump administration
51
Act of , in order for the United States to be in compliance with the
obligations set forth in this Article.
24
This final version reduced U.S. obligations in three important ways. First, it
reduced the substantive commitment from “shall implement policies” to “shall
implement policies that [each country] considers appropriate.”
25
Second, foot-
note attempted to limit any expansion of U.S. antidiscrimination obligations
by asserting that current policies suce to ensure U.S. compliance with the
agreement, and by appearing to read the main text as relevant only to the pro-
tection of federal employees.
26
Third, the changes redefined “sex.” The structure
of the initial provision suggested that discrimination on the basis of pregnancy,
sexual harassment, sexual orientation, gender identity, and caregiving responsi-
bilities were all “include[ed]” as subcategories of sex discrimination. But the final
USMCA provision included sexual harassment only as an example of sex dis-
crimination, while listing the remaining characteristics as separate grounds of
discrimination. This change was also reflected in the title and first sentence of
the provision, which referred to “discrimination” in the workplace broadly rather
than “sex-based discrimination” specifically.
27
In this Essay, we will focus on the USMCA’s redefinition of “sex” and what
this suggests about the negotiating process. Despite the legal significance of the
modification, the redefinition has received less attention than the first two
changes. The change not only highlights the growing domestic divide over the
meaning of “sex” but also hints at how Article . came to be part of the US-
MCA, in spite of the disjunct between its content and the Trump Administra-
tion’s general approach to gender issues.
24. Id. at n.. Despite these changes, another provision in the labor chapter allowing parties to
develop cooperative activities in areas including the “elimination of employment discrimina-
tion in the areas of . . . sexual orientation, gender identity, and other characteristics not related
to merit or the requirements of employment” remained unchanged. Id. art. .()(l)(i).
25. See An Analysis of the United States–Mexico–Canada Agreement, HERITAGE FOUND. (Tori K.
Whiting & Gabriella Beaumont-Smith eds., ), https://www.heritage.org/sites
/default/files/-/BG_.pdf [https://perma.cc/XJU-NZRX] (describing how the
changed language “nullified” the provisions); Simon Lester, The Progressive Parts of the New
NAFTA: Footnotes at War with Obligations, I
NT’L ECON. L. & POL’Y BLOG (Nov. , , :
PM), https://worldtradelaw.typepad.com/ielpblog///the-progressive-parts-of-naa
-footnotes-at-war-with-obligations.html [https://perma.cc/DL-VMN] (stating that the
change in language adds considerable discretion to the provision).
26. See Lester, supra note (“In a sense, the footnote tries to say that even if the U.S. is not
technically in compliance with Article ., it is nonetheless in compliance with Article ..”).
27. See Finalized USMCA, supra note , art. ..
the yale law journal forum October ,
52
ii. the usmca and the structure of existing federal law
on sex-related discrimination
What explains the change in how discrimination on the basis of sex was de-
fined between the USMCA’s initial and finalized versions? We hypothesize that
U.S. trade negotiators did not initially realize the tensions between the definition
of discrimination based on “sex” in the USMCA as originally negotiated and the
far less progressive definition of “sex” used by the current Department of Justice
for Title VII purposes.
Title VII prohibits employment discrimination on the basis of “race, color,
religion, sex, or national origin.”
28
In addition to covering sexual harassment,
discrimination on the basis of sex is already understood in U.S. law to prohibit
pregnancy-based discrimination and disparate treatment based on caregiver re-
sponsibilities.
29
The issue is more complex, however, regarding discrimination on the basis
of sexual orientation and gender identity. On the one hand, the Equal Employ-
ment Opportunity Commission (EEOC), the independent agency responsible
for enforcing Title VII, maintains that discrimination based on both sexual ori-
entation and gender identity are forms of sex-based discrimination prohibited
by Title VII.
30
On the other hand, in , then-Attorney General Je Sessions
28. U.S.C. e-(a) ().
29. See Pregnancy Discrimination Act of , Pub. L. No. -, Stat. (codified at
U.S.C. e(k) ()) (amending Title VII to explicitly include “pregnancy, childbirth,
or related medical conditions” in the definition of “sex”); Meritor Sav. Bank, FSB v. Vinson,
U.S. , - () (holding that sexual harassment claims are actionable under Title
VII’s prohibition on sex discrimination); U.S.
EQUAL EMP. OPPORTUNITY COMM’N, NOTICE
NO. ., ENFORCEMENT GUIDANCE: UNLAWFUL DISPARATE TREATMENT OF WORKERS
WITH
CAREGIVING RESPONSIBILITIES (May , ) (clarifying that disparate treatment of
persons with caregiving responsibilities may give rise to a Title VII violation).
30. Sam Schwartz-Fenwick & Lucas Deloach, Despite New Administration, EEOC Maintains Posi-
tion That Title VII Prohibits Gender Identity Discrimination, M
ONDAQ (Mar. , ),
http://www.mondaq.com/unitedstates/x//employment+litigation+tribunals
/Despite+New+Administration+EEOC+Maintains+Position+That+Title+VII+Prohibits
+Gender+Identity+Discrimination [https://perma.cc/US-XW]; see also, e.g., Brief of
the EEOC as Amicus Curiae in Support of Neither Party at -, Wittmer v. Phillips Co.,
F.d (th Cir. ) (No. -) (arguing that gender identity/transgender dis-
crimination is sex discrimination under Title VII); En Banc Brief of Amicus Curiae EEOC in
Support of Plaintis/Appellants and in Favor of Reversal at -, Zarda v. Altitude Express,
Inc., F.d (d Cir. ) (No. -), cert. granted, S. Ct. () (No. -
) (arguing that sexual orientation discrimination is discrimination because of sex).
The EEOC has been able to maintain its stance despite pushback from the Trump
Administration due to its structure as a bipartisan independent agency. Its five members are
appointed by the President, with the advice and consent of the Senate, for five-year terms.
gender-identity protection, trade, and the trump administration
53
issued a memorandum stating that Title VII does not bar discrimination on the
basis of gender identity, reversing the Obama-era interpretation.
31
In defending
this conclusion, Sessions asserted that Congress had “confirmed this ordinary
meaning” by listing the term “gender identity” in certain other statutes “in ad-
dition to, rather than within, prohibitions on discrimination based on ‘sex’ or
‘gender.’”
32
Disagreements about the meaning of “sex” have made their way to the
courts. In the last two years, three federal appeals courts have held that Title VII
applies to sexual orientation, distinguishing or overruling the circuits’ previous
precedents.
33
Other than the D.C. Circuit, which has not addressed the issue, the
Civil Rights Act of , Pub. L. No. -, tit. , Stat. , - (codified at U.S.C.
e et seq. ()). Until , the EEOC operated with three Obama-era appointees—
one of whose terms expired in —and two vacancies, which remained unfilled due to ob-
jections from Republican senators. See Tom Spiggle, The Agency that Monitors Employment
Discrimination Just Lost Its Only Openly Gay Commissioner, F
ORBES (Feb. , ),
https://www.forbes.com/sites/tomspiggle////the-agency-that-monitors
-employment-discrimination-just-lost-its-only-openly-gay-commissioner [https://perma.cc
/RPQ-SN]; The Commission and the General Counsel, U.S.
EQUAL EMP’T OPPORTUNITY
COMM’N, https://web.archive.org/web//https://www.eeoc.gov/eeoc
/commission.cfm [https://perma.cc/ZKX-YJNX]. On May , , Trump nominee Janet
Dhillon was sworn in as Chair of the EEOC, but two seats remain vacant. Press Release, U.S.
Equal Emp’t Opportunity Comm’n,
Janet Dhillon Becomes Chair of the Equal Employment
Opportunity Commission (May , ), https://www.eeoc.gov/eeoc/newsroom/release
/--.cfm [https://perma.cc/HJH-LA].
31. Memorandum from Jeerson Beauregard Sessions III, Attorney Gen., to U.S. Attorneys and
Heads of Dep’t Components (Oct. , ), https://www.justice.gov/ag/page
/file//download [https://perma.cc/WWA-J] [hereinaer Oct. Sessions
Memo]. Sessions has also interpreted protections for religious liberty in ways that undermine
protections against discrimination for LGBTQ persons. Memorandum from Jeerson
Beauregard Sessions III, Attorney Gen., to All Exec. Dep’ts. & Agencies , a-a (Oct. ,
), https://www.justice.gov/opa/press-release/file//download [https://perma.cc
/QKT-WMM] (asserting that, for Title VII purposes, “religious employers are entitled to
employ only persons whose beliefs and conduct are consistent with the employers’ religious
precepts”); see also D
EP’T OF LABOR, OFFICE OF FED. CONTRACT COMPLIANCE PROGRAMS, DI-
RECTIVE
(DIR) -, at n. (Aug. , ) (citing Masterpiece Cakeshop, Ltd. v. Colo.
Civil Rights Comm’n, S. Ct. , () and superseding, in the name of religious
liberty, prior guidance documents which had stated that religious exemptions did not excuse
federal contractors from an obligation to not discriminate on the basis of sexual orientation
or gender identity).
32. Oct. Sessions Memo, supra note , at -.
33. Franchina v. City of Providence, F.d , - (st Cir. ); Zarda v. Altitude Express,
Inc., F.d , (d Cir. ) (en banc), cert. granted, S. Ct. (Apr. , )
(No. -); Hively v. Ivy Tech Cmty. Coll., F.d , - (th Cir. ) (en banc).
See generally William N. Eskridge Jr., Title VII’s Statutory History and the Sex Discrimination
Argument for LGBT Workplace Protections, Y
ALE L.J. , () (surveying recent cases
the yale law journal forum October ,
54
remaining circuits have older precedents holding that Title VII does not bar dis-
crimination based on sexual orientation,
34
and—in the case of three circuits
35
—
have recently armed such precedents. As for gender identity, one circuit has
held that Title VII prohibits discrimination on that basis.
36
Three others have
signaled their agreement with this approach in non-Title VII cases, despite older
precedents holding that Title VII does not prevent discrimination on gender-
identity grounds.
37
In contrast, two circuits have le their old precedents largely
untouched, neither relying on nor rearming them in precedential decisions
within the last decade.
38
The remaining circuits have yet to address the issue.
and arguing that Title VII, read in light of its ordinary meaning and purpose, covers discrim-
ination based on sexual orientation and gender identity).
34. See, e.g., Kay v. Indep. Blue Cross, Fed. App’x , (d Cir. ) (relying on Bibby v.
Phila. Coca Cola Bottling Co., F.d , (d Cir. )); Medina v. Income Support
Div., F.d , (th Cir. ); Rene v. MGM Grand Hotel, Inc., F.d ,
(th Cir. ) (en banc), a’g DeSantis v. Pac. Tel. & Tel. Co., F.d (th Cir. );
Wrightson v. Pizza Hut of Am., Inc., F.d , (th Cir. ); Williamson v. A.G.
Edwards & Sons, F.d , (th Cir. ) (per curiam).
35. See Bostock v. Clayton Cty. Bd. of Comm’rs, Fed. App’x , - (th Cir. ) (per
curiam) (arming the dismissal of a Title VII sexual-orientation claim and reiterating that
the court could not hold otherwise in the absence of an intervening Supreme Court or en banc
Eleventh Circuit decision to the contrary); Wittmer v. Phillips Co., F.d , (th
Cir. ) (noting that Blum v. Gulf Oil Corp., F.d (th Cir. ) (per curiam)
remains binding precedent); Evans v. Georgia Reg’l Hosp., F.d , (th Cir. )
(arming Blum, F.d ); Gilbert v. Country Music Ass’n, Fed. App’x , (th
Cir. ) (relying on Vickers v. Fairfield Med. Ctr., F.d , (th Cir. )); see also
Tumminello v. Father Ryan High Sch., Inc., Fed. App’x , (th Cir. ) (relying
on Vickers to reject a Title IX sexual-orientation claim).
36. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., F.d , , (th Cir. ).
37. See Glenn v. Brumby, F.d , - (th Cir. ) (holding that discrimination based
on gender identity violates the Equal Protection Clause’s prohibition on sex discrimination).
Compare Whitaker v. Kenosha Unified Sch. Dist. No. Bd. of Educ., F.d , -
(th Cir. ) (looking to the Title VII context to decide that a Title IX gender-identity claim
was likely to succeed), and Schwenk v. Hartford, F.d , - (th Cir. ) (stat-
ing, in deciding a Gender Motivated Violence Act claim, that the Holloway v. Arthur Andersen
& Co., F.d (th Cir. ) approach to Title VII was “overruled by the logic and
language” of Supreme Court decisions holding that Title VII prohibited discrimination based
on stereotypes about how people of a certain sex should behave), with Ulane v. E. Airlines,
Inc., F.d , (th Cir. ) (holding that Title VII does not protect against
transgender discrimination), and Holloway, F.d at - (same).
38. See Larson v. United Air Lines, F. App’x. , n. (th Cir. ) (citing Etsitty v.
Utah Transit Auth., F.d , (th Cir. )); Williamson v. A.G. Edwards and
Sons, Inc., F.d , (th Cir. ) (per curiam) (citing Sommers v. Budget Mktg.,
Inc., F.d , (th Cir. )); see also Doe v. Boyertown Area Sch. Dist., F.d
, - (d Cir. ), cert. denied, S. Ct. () (implying in dicta on a Title IX
claim that Title VII’s definition of sex does not include gender identity).
gender-identity protection, trade, and the trump administration
55
In light of the circuit splits, the Supreme Court has—aer consideration dur-
ing numerous conferences—granted certiorari in three cases dealing with the
scope of Title VII’s sex-discrimination provision.
39
R.G. & G.R. Harris Funeral
Homes, Inc. places before the Court the Sixth Circuit’s recognition of a Title VII
gender-identity claim.
40
As to sexual orientation, the Court consolidated Zarda
from the Second Circuit, recognizing a Title VII claim, and Bostock from the
Eleventh Circuit, rejecting the claim.
41
The Department of Justice submitted briefs in Zarda and R.G. & G.R. Harris
Funeral Homes, Inc. arguing that sex in Title VII “mean[s] biological sex” and
the “physiological distinction” between men and women—not sexual orienta-
tion or gender identity.
42
This was unsurprising given the Justice Department’s
push for a purely biological definition of sex under the Trump Administration.
By defining “discrimination on the basis of sex” broadly to include sexual
orientation and gender identity, the initial USMCA text was in conformity with
the EEOC interpretation but in tension with the Justice Department’s narrow
approach to “sex” as used in Title VII. Had the text remained in this form, it
would have been a rhetorical rebuke to the Justice Department’s approach and
might have even served as legal ammunition in the pending Title VII cases. At
the very least, it would have undercut Sessions’s argument that a narrow “ordi-
nary meaning” of sex in Title VII could be inferred from the fact that other fed-
eral statutes treat sexual orientation and gender identity as distinct categories
from sex.
43
39. Bostock v. Clayton Cty., Fed. App’x (th Cir. ), cert. granted, S. Ct.
() (No. -); R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, F.d (th
Cir. ), cert. granted, S. Ct. () (No. –); Zarda v. Altitude Express, Inc.,
F.d (d Cir. ), cert. granted, S. Ct. () (No. -).
40. R.G. & G.R. Harris Funeral Homes fired Stephens aer she told them that she was in the
process of transitioning and would not comply with the company’s dress code for male em-
ployees. Petition for Writ of Certiorari at -, R.G. & G.R. Harris Funeral Homes, F.d
(No. -).
41. In both Zarda and Bostock, an employer fired a gay man for alleged misconduct; both men
claim this was pretext to discriminate against them based on their sexual orientation. Petition
for Writ of Certiorari at -, Zarda, F.d (No. -); Petition for Writ of Certiorari
at -, Bostock, Fed. App’x (No. -).
42. Brief for the Federal Respondent Supporting Reversal at -, R.G. & G.R. Harris Funeral
Homes (No. -) (arguing that Title VII does not bar discrimination based on gender iden-
tity). See generally Brief for the United States as Amicus Curiae Supporting Armance in No.
- and Reversal in No. -, Zarda (No. -) (arguing that Title VII does not bar
discrimination based on sexual orientation).
43. See Oct. Sessions Memo, supra note , at -.
the yale law journal forum October ,
56
The move in the finalized text to separate the categories likely reflects con-
cerns of the current Department of Justice. Indeed, the changes make clear that
the use of the term “sex” in the USMCA cannot be interpreted as coextensive
with the same term in Title VII. Unlike Title VII, the USMCA now explicitly
separates out discrimination based on pregnancy and on caregiving responsibil-
ities from discrimination based on “sex.”
In addition to its substantive implications, the change in language from the
initial to the final dras of the USMCA suggests something about the negotiat-
ing process. In light of the tension between the broad definition of “sex” in the
initial USMCA and the positions being taken by the Justice Department, it seems
exceedingly plausible that the Justice Department was not consulted about the
content of Article . prior to the publication of the initial text. This is all the
more likely given that the Trump Administration is not known for its punctilious
processes,
44
that the negotiators were working under a tight deadline,
45
and that
all parties were aware that the text would undergo a legal scrub aer the US-
MCA’s initial publication.
46
A lack of consultation among Trump Administration ocials about U.S. em-
ployment discrimination law may help explain how the words “sexual orienta-
tion” and “gender identity” made it into the USMCA at all. “[W]hile the Presi-
dent is ultimately in charge, the White House itself is a ‘they,’ not an ‘it’”—and
this is all the more true of the executive branch writ large.
47
USTR may have
been not only less attuned to the definitional implications of “sex” than other
agencies but also less resistant to the inclusion of language explicitly protecting
against discrimination based on sexual orientation and gender identity. USTR
negotiators may well have placed a higher premium on other provisions and a
44. See generally, e.g., W. Neil Eggleston & Amanda Elbogen, The Trump Administration and the
Breakdown of Intra-Executive Legal Process, Y
ALE L.J.F. ().
45. See supra notes - and accompanying text.
46. For a discussion of some other changes made to the USMCA during the legal scrub, see Kath-
leen Claussen, RIP NAALC: North American Agreement on Labor Cooperation, I
NT’L ECON. L. &
POL’Y BLOG (Dec. , , : AM), https://worldtradelaw.typepad.com/ielpblog
///guest-post-rip-naalc-north-american-agreement-on-labor-cooperation.html
[https://perma.cc/FHS-QRV].
47. Cass R. Sunstein, Commentary, The Oce of Information and Regulatory Aairs: Myths and
Realities, H
ARV. L. REV. , (); see also Rebecca Ingber, Interpretation Catalysts
and Executive Branch Legal Decisionmaking, Y
ALE J. INT’L L. , () (describing the
executive branch as “a massive multifaceted organization whose decisionmaking gears shi
into entirely dierent places and whose individual players reshue depending on the framing
of the initial triggering event”).
gender-identity protection, trade, and the trump administration
57
correspondingly lower premium on the content of Article ..
48
And, once the
terms “sexual orientation” and “gender identity” made it into the initial pub-
lished text, this language had staying power. While Canada made some conces-
sions regarding Article . during the legal scrub, Canadian negotiators had a
strong argument that the total removal of these terms would result in an unac-
ceptable loss of moral face for the country.
49
The negotiated result was a provi-
sion that was thin but still meaningful.
iii. the substantive and expressive reach of the usmca’s
sex-related protections
The final text of the USMCA dashed most of the hopes raised by the initial
version. One LGBTQ advocate remarked grimly that footnote “eectively nul-
lified” the original protections and that Trump had “[o]nce again . . . squan-
der[ed] the United States’ status as a leader in LGBTQ equality.”
50
For all the
thinness of the final version, however, it does have some substantive content and
sends a powerful expressive signal.
48. For a list of the United States’ negotiating objectives, see Summary of Objectives for NAFTA
Renegotiation, O
FF. U.S. TRADE REPRESENTATIVE (), http://www.sice.oas.org/TPD
/USMCA/Modernization/USTR_NAFTA_Objectives_e.pdf [https://perma.cc/UCK
-KBY]. As the negotiations proceeded, for example, the United States placed heavy emphasis
on rules of origin for the automobile industry and opening Canada’s dairy market to U.S.
farmers. See Jim Tankersley, Trump Just Ripped Up Naa. Here’s What’s in the New Deal, N.Y.
TIMES (Oct. , ), http://nytimes.com////business/trump-naa-usmca
-dierences.html [https://perma.cc/NVG-JFL]. It is possible that there could have been an
explicit or implicit “bargain” struck, whereby the inclusion of protections for sexual orienta-
tion and gender identity in Article . were agreed to in exchange for some other specific
concession from Canada.
49. See Alexander Panetta & Lauren Gardner, House Conservatives Protest LGBT Protection in Mex-
ico-Canada Trade Deal, P
OLITICO (Nov. , , : PM EST), https://www.politico.com
/story////house-conservatives-lgbt-protection-trade-pact- [https://perma
.cc/VCE-FMAT] (describing the Canadian government’s remarks that the provision as a
“big win”); see also Jordan Press, Trudeau Says He Won’t Negotiate in Public on Future of LGBTQ
Rights in USMCA, S
TAR (Nov. , ), https://www.thestar.com/amp/news/canada
////trudeau-says-he-wont-negotiate-in-public-on-future-of-lgbtq-rights-in-usmca
.html [https://perma.cc/HNG-YZ] (describing how Trudeau refused to discuss how far
he was willing to go to keep the sex-discrimination provision in the agreement).
50. Tim Fitzsimons, Footnote in New Trade Agreement Causes Confusion over LGBTQ Protections,
NBC
NEWS (Dec. , , : PM EST), https://www.nbcnews.com/feature/nbc
-out/footnote-new-trade-deal-causes-confusion-over-lgbtq-protections-n [https://
perma.cc/-WYJQ] (quoting Gay and Lesbian Alliance Against Defamation (GLAAD)
president, Sarah Kate Ellis).
the yale law journal forum October ,
58
The initial version of Article . would have squarely committed the United
States to addressing employment discrimination based on sexual orientation and
gender identity as a matter of international law. As noted earlier, the reach of
Title VII on these matters currently varies by federal circuit, and Congress’s at-
tempts to explicitly incorporate these grounds into Title VII have failed.
51
Pro-
tection against discrimination on the basis of sexual orientation and gender iden-
tity is similarly intermittent at the state and local level.
52
In contrast to the United
States, Canada’s federal, provincial, and territorial governments have each out-
lawed employment discrimination on these grounds.
53
Mexico has also prohib-
ited employment discrimination based on sex, sexual orientation, and gender,
which includes gender identity and expression.
54
The initial version of Article
. would thus have been a particularly significant commitment for the United
51. The Equality Act, which died in the last Congress but has since passed the House, would
amend the Civil Rights Act of to prohibit employment discrimination on the basis of
sexual orientation and gender identity. H.R. , th Cong. (); H.R. , th Cong.
(). The bill’s predecessor, the Employment Non-Discrimination Act (ENDA), would
have prohibited employment discrimination on the basis of sexual orientation or gender iden-
tity without amending the Civil Rights Act. See S. , th Cong. (). Every attempt to
pass ENDA since has failed. S. , th Cong. (); H.R. , th Cong. ();
H.R. , th Cong. (); H.R. , th Cong. (); S. , th Cong. ();
H.R. , th Cong. (); H.R. , th Cong. (); H.R. , th Cong.
(); H.R. , th Cong. (); H.R. , d Cong. ().
52. See Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity, HUM.
RTS. CAMPAIGN (Jan. , ), http://www.hrc.org/resources/entry/cities-and-counties
-with-non-discrimination-ordinances-that-include-gender [https://perma.cc/CEY-JEE];
Local Nondiscrimination Ordinances: Employment, M
OVEMENT ADVANCEMENT PROJECT (Aug.
, ), http://www.lgbtmap.org/equality-maps/non_discrimination_ordinances
[https://perma.cc/AEM-NHTE]; State Maps of Laws & Policies: Employment, H
UM. RTS.
CAMPAIGN (June , ), https://www.hrc.org/state-maps/employment [https://perma.cc/
KNH-GNG].
53. Canadian Human Rights Act, R.S.C. , c. H-, Part , Sec. () (last amended June ,
); Overview of Human Rights Codes by Province and Territory in Canada, C
ANADIAN CTR.
FOR
DIVERSITY & INCLUSION (), https://ccdi.ca/media//-publications
-overview-of-hr-codes-by-province-final-en.pdf [https://perma.cc/GUS-TEF].
54. Decreto por el que Se Reforman y Adicionan Diversas Disposiciones de la Ley Federal para
Prevenir y Eliminar la Discriminación, arts. (II), (III), Diario Oficial de la Federación
[DOF] -- (Mex.); Senado fortalece legislación en contra de la discriminación y reforma la
Ley de la CNDH [Senate Strengthens Legislation Against Discrimination and Reforms Human
Rights Commission Law], S
ENADO DE LA REPÚBLICA (Apr. , , : AM), http://
comunicacion.senado.gob.mx/index.php/informacion/boletines/-senado-fortalece-
legislacion-en-contra-de-la-discriminacion-y-reforma-la-ley-de-la-cndh.html [https://
perma.cc/LF-NPAE] (“The Assembly also adopted a decision to reform . . . the Federal Law
to Prevent and Eliminate Discrimination to include in the definition of discrimination sexual
orientation, gender identity, gender expression, and sexual characteristics.”) (author’s trans-
lation).
gender-identity protection, trade, and the trump administration
59
States, and it would have become even more so if the Supreme Court were to
rule against a broad interpretation of “sex” for purposes of Title VII. In this
counterfactual (and further assuming U.S. ratification of the USMCA), the
United States would have been in violation of its international obligations, which
could have spurred domestic action.
The final version of the USMCA, by comparison, has a much narrower reach.
In contrast to the main text of Article ., footnote appears to limit U.S. ob-
ligations to “federal agency policies regarding the hiring of federal workers” (as
well as explicitly disclaiming any obligation to amend Title VII).
55
Yet, although footnote narrows the scope of the main text, it arguably bol-
sters the article’s depth. At first glance, the change in the main text from “shall
implement policies to protect workers” to “shall implement policies that each
country considers appropriate to protect workers” seems to make Article . so
subjective as to be meaningless. But the assertion in the footnote that the “United
States’ existing federal agency policies regarding the hiring of federal workers
are sucient to fulfill the obligations set forth in this Article” can be read to rest
on the implicit premise that Article . does create genuine “obligations” rather
than stating aspirational goals. The federal agency policies referred to in the foot-
note derive solely from President Obama’s Executive Order ,, which pro-
hibits the federal government from discriminating against employees on the ba-
sis of sexual orientation or gender identity.
56
The footnote can thus be read to
commit the United States to the continuance of these protections—notwith-
standing the Trump Administration’s eagerness to roll back Obama-era protec-
tions tied to sexual orientation and gender identity.
In addition to this limited but meaningful substance, Article . has expres-
sive significance, both internationally and domestically. The expressive function
of international agreements is well-recognized, particularly with respect to hu-
man rights.
57
Human-rights provisions in trade agreements can be included in
agreements between like-minded countries, as was the case with the gender
55. In line with this interpretation, USTR made no mention of Article . in its notice to Con-
gress about changes in domestic law necessary for USMCA compliance. Letter from Robert
Lighthizer, U.S. Trade Representative, to Congress (Jan. , ), https://www.finance
.senate.gov/imo/media/doc/USMCAChangesToExistingUSLaw
Document.pdf [https://perma.cc/UR-QLA].
56. Exec. Order No. ,, Fed. Reg. , (July , ) (also applying this prohibition to
government contractors).
57. See Oona A. Hathaway, Do Human Rights Treaties Make a Dierence?, YALE L.J. , -
() (discussing instrumental and expressive functions of human rights treaties).
the yale law journal forum October ,
60
chapter in the Chile-Uruguay Free Trade Agreement.
58
Oen, however, “devel-
oping countries have acceded to the demands of developed countries by agreeing
to some form of human rights obligations” in trade agreements.
59
Most of the
time, this language is purely aspirational and, even when it creates binding com-
mitments, such commitments are usually not enforced.
60
As such, the purpose
of these provisions is oen symbolic, with the hope that symbols can shape
norms.
61
Along these lines, the USMCA communicates to the world the parties’
commitment to protecting their citizens against discrimination on the basis of
sexual orientation and gender identity. Unlike many such expressive provisions,
however, the protections of the USMCA were added at the insistence of a smaller
economy, Canada, despite the reluctance of the equally developed and economi-
cally more powerful United States.
Domestically, although the USMCA provision has limited practical eect, it
still creates expressive value by recognizing and protecting the existence of
LGBTQ identities. Federal statutory language on sexual orientation and gender
identity remains sparse—and where it appears, it is not always progressive. Some
older statutes speak of gender identity “disorders.”
62
A few more recent statutes
58. See Pía Mesa, TLC con Chile Es un Modelo para Replicarlo con China, EL PAÍS (July , ),
https://negocios.elpais.com.uy/noticias/tlc-chile-modelo-replicarlo-china.html [https://
perma.cc/DQS-VFFF] (describing the Uruguay-Chile Agreement, including the gender
chapter, as a good model that Uruguay could eventually replicate with other partners). Chile
has already concluded a free-trade agreement with Argentina that includes a gender chapter.
C
ONFERENCE BD. OF CAN, supra note , at -.
59. Lewis, supra note , at . It is of course harder for less powerful countries to succeed in ex-
tracting concessions from more powerful ones. An example of one such attempt can be seen
in Ecuador’s push for a treaty on business and human rights, which has received significant
pushback from Western nations. See Human Rights Council Res. / (July , ) (listing
the Human Rights Council members, including European Union member states and the
United States, who voted against the creation of a working group on a business and human
rights treaty).
60. Lewis, supra note , at . But see Ionel Zamfir, Human Rights in EU Trade Policy, EUR. PARLIA-
MENTARY
RES. SERVS. PE . - () (describing the European Union’s suspension of
preferential trade agreements in three cases where developing countries violated the human
rights provisions in the agreements).
61. See Hathaway, supra note , at - (discussing the expressive value of human rights
provisions); cf. D. Daniel Sokol, Order Without (Enforceable) Law: Why Countries Enter into
Non-Enforceable Competition Policy Chapters in Free Trade Agreements, C
HI.-KENT L. REV. ,
- () (discussing the expressive value of non-binding competition policies in free-
trade agreements).
62. See, e.g., U.S.C. ()(E)-(F) () (excluding “transvestism, transsexualism, pedo-
philia, exhibitionism, voyeurism, gender identity disorders not resulting from physical im-
pairments, or other sexual behavior disorders” from the definition of disability for the pur-
poses of rehabilitation services).
gender-identity protection, trade, and the trump administration
61
recognize sexual orientation and gender identity more positively, including a
provision defining hate crimes to include crimes motivated by sexual orientation
and gender identity,
63
and the Violence Against Women Reauthorization Act of
, which prohibits discrimination on these grounds in programs that received
funding under the Act.
64
The limited scope of these protections signals disfa-
vored status for people who are not heterosexual or cisgender. As Elizabeth An-
derson and Richard Pildes have observed, “legal communications of state atti-
tudes . . . oen impose dierent legal statuses on the citizens and residents of a
State—as first- or second-class citizens, insiders and outsiders . . . and so
forth.”
65
The more legal commitments, particularly legislative ones, the United
States makes to protect persons from being targeted due to sexual orientation or
gender identity, the more these expressions may help shape societal attitudes and
behaviors.
66
Congress will have to approve the USMCA in order for the agreement to take
eect. Since the USMCA is an international agreement, however, Congress can-
not unilaterally change the document’s language—and any attempt to reopen
negotiations with Canada and Mexico at this point would likely be a high-stakes
aair.
67
Perhaps recognizing how limited their clout would be aer the USMCA
was signed, forty-six Republican representatives registered their objections to
Article . while the legal scrub was ongoing.
68
Referring to the Trump Admin-
istration’s “cohesive agenda regarding policies surrounding sexual orientation
63. U.S.C. (a)() ().
64. Violence Against Women Reauthorization Act of , Pub. L. No. -, , Stat. , .
65. Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement,
U.
PA. L. REV , ().
66. See Janice Nadler, Expressive Law, Social Norms, and Social Groups, LAW & SOC. INQUIRY ,
- () (“Law can work expressively not so much by shaping independent individual
attitudes as by shaping group values and norms, which in turn influence individual atti-
tudes.”).
67. See David Ljunggren, Canada Says Reopening USMCA Trade Pact Could Be a “Pandora’s Box,”
R
EUTERS (Apr. , ) https://www.reuters.com/article/us-usa-trade-canada/canada-says-
reopening-usmca-trade-pact-could-be-a-pandoras-box-idUSKCNRGBU [https://perma
.cc/TXM-DCS] (describing Canada’s reluctance to reopen negotiations). But see Jonas
Ekblom, Canada and Mexico May Be Open to Tweaking USMCA: U.S. Democrat, R
EUTERS
(June , ), https://www.reuters.com/article/us-usa-trade-mexico-canada/canada-and
-mexico-may-be-open-to-tweaking-usmca-us-democrat-idUSKCNTROO [https://
perma.cc/FZY-RWA] (stating that Canada and Mexico may be willing to renegotiate spe-
cific aspects of the agreement).
68. Letter from Forty-Six Congressmembers to Donald Trump, President (Nov. , ),
https://lamborn.house.gov/uploadedfiles/final_letter.pdf [https://perma.cc/TC-MMC]
(also expressing concern “at the contradictory policy coming through USTR when other De-
partments under your Administration are working to come into alignment on SOGI policy”).
the yale law journal forum October ,
62
and gender identity,” they rejected the “elevation of SOGI [sexual orientation
and gender identity] to the level of sex.”
69
They further protested that adopting
“social policy” through a trade agreement would be “inappropriate and insulting
to our sovereignty” and called for the complete removal of protections for sexual
orientation and gender identity from the agreement.
70
The watered-down ver-
sion of Article . addresses some, but not all, of these concerns. When the US-
MCA comes to a vote, as it presumably will sometime this year,
71
these members
will have to decide how to respond. As President Trump’s signature international
agreement, we anticipate that the USMCA will end up garnering many Repub-
lican votes.
72
conclusion
In the era of international regulatory cooperation, free-trade agreements of-
ten touch not only on what is traditionally thought of as trade, but also on other
areas of historically national or even subnational control. Increasingly, these ex-
pansive agreements include expressive norm-creating provisions in addition to
substantive law-creating ones. The USMCA’s provisions on sexual orientation
and gender identity show that even the most powerful countries are not immune
from being on the receiving end of such expressive norms. In this instance, Can-
ada was able to pressure the United States into accepting human-rights
69. Id.
70. Id.
71. See Megan Cassella & Sabrina Rodriguez, Democrats Vow Trade Deal Talks Will Continue De-
spite Impeachment Push, P
OLITICO (Sept. , , : PM), http://politico.com
/story////democrats-usmca-impeachment- [https://perma.cc/YJS-BY]
(reporting that “Democrats working with the Trump administration to try to pass a new
North American trade agreement say they are unbowed in their eorts to try to get a deal done
this year” and will “proceed with optimism”); Niv Elis, Pelosi, Trump May Reach Trade Deal
Despite Impeachment, H
ILL (Oct. , ), https://thehill.com/policy/finance/-pelosi
-trump-may-reach-trade-deal-despite-impeachment [https://perma.cc/UC-NN] (de-
scribing continued progress on USMCA legislation despite the impeachment inquiry). But see
Je Mason & Anthony Esposito, Trump Says Impeachment Inquiry Could Derail Trade Deal,
Mexico Markets Slump, R
EUTERS (Sept. , , : PM), https://www.reuters.com/article
/us-usa-trade-naa/trump-says-impeachment-inquiry-could-derail-trade-deal-mexico
-markets-slump-idUSKBNWAC [https://perma.cc/ZFG-AQHE] (describing Trump’s
concerns that the impeachment inquiry will “derail” the USMCA but explaining that USTR
Lighthizer remained optimistic that Congress would approve the agreement).
72. See Kevin Freking, GOP Lawmakers Set Goal of Summer Vote for Trade Deal, ASSOCIATED PRESS
(Mar. , ), https://www.apnews.com/bdddbadab [https://
perma.cc/F-XDYJ] (“Rep. Vern Buchanan of Florida, the ranking Republican on the trade
subcommittee, said he believes the vast majority of Republicans will end up voting for the
agreement.”).
gender-identity protection, trade, and the trump administration
63
provisions that stand in sharp tension with the Trump Administration’s own
domestic agenda. Although watered down prior to the USMCA’s finalization,
these provisions demonstrate that trade negotiations can be multidirectional, not
only as to economics, but also as to values.
Jean Galbraith is a Professor of Law at the University of Pennsylvania Law School.
Beatrix Lu is a J.D. candidate (expected 2020) at the University of Pennsylvania Law
School. The authors thank Kathleen Claussen and Serena Mayeri for comments, and
the editors of the Yale Law Journal, especially Sasha Dudding, Peter Kallis, Ela
Leshem, and Abigail Pershing, for their contributions throughout the editing process.
