Transgender import

Dairy quotas and steel tariffs do not bring to mind progressive sexual orientation and gender identity (SOGI) policies. But that’s exactly what negotiators slipped into the new United States–Mexico–Canada Agreement (USMCA) that leaders of all three countries signed in late November.

Buried in Chapter 23, Articles 9 and 12(5)(I)(i) establish SOGI as protected classes. In the first provision, all three countries pledge to implement “policies that protect workers against employment discrimination on the basis of sex, including with regards to ... sexual orientation, gender identity.”

Such language is unprecedented in U.S.-negotiated trade agreements—so it came as a shock to conservatives, who only noticed it after the text became public on Sept. 30. Forty-six House Republicans penned a letter asking the Trump administration to remove the language, which critics call a backdoor attempt to export Canada’s liberal social policies into the United States.

Congress has so far refused to widen the umbrella definition of sex-based discrimination to include SOGI terms, despite yearly attempts in the proposed Employment Non-Discrimination Act or its more recent—and sweeping—iteration, the Equality Act. Conservatives have fought against such expansion, arguing that expansion would allow activists to legally attack those who hold to a biological definition of sex.

In the 21 states that have passed SOGI nondiscrimination carve-outs, activists have sued wedding service providers, teachers, county clerks, and adoption and foster care workers whose consciences have run afoul of these provisions.

The Supreme Court has not decisively settled the issue, handing down so narrow a ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission that cake baker Jack Phillips now faces another lawsuit.

Joseph Grabowski with the National Organization for Marriage said because the United States is still debating the issue in current court cases and in the public square, “this is trying to slip in ideology from the back door. … I think if you talked to the average American, they would be surprised to find out that this kind of discussion is part of the trade deal.”

Including the language also opens the door to negotiating contentious social issues in other international agreements, said Doreen Denny with Concerned Women for America.

Canada initially wanted an entire chapter devoted to advancing progressive gender policies. But even the curtailed provisions were enough for one Canadian official to tell Politico that “getting gender discrimination, more broadly, included in the deal ... it’s a win for us.”

Gwendolyn Landolt with REAL Women of Canada believes the move was purely ideological: “[Prime Minister Justin] Trudeau wants to establish himself as a world leader on progressive legislation.”

The move may tether the current administration to the Obama administration’s SOGI policies, according to Jenna Ellis with the James Dobson Family Institute. Two 2014 executive orders expanded the definition of sex-based discrimination to include SOGI, placing the federal government on the side of transgender plaintiffs in legal battles over workplace discrimination and access to restrooms and locker rooms.

President Donald Trump has not rescinded those executive orders, though his administration has taken steps to roll back some guidance: In an October 2017 memo the Department of Justice clarified that sex discrimination should be interpreted on a biological basis. The Trump administration is considering making a similar change at the Department of Health and Human Services, according to a memo leaked to The New York Times.

The lawmakers’ letter argues the SOGI inclusion could also set a dangerous precedent: Judges could cite the trade agreement as persuasive in future cases, and lawmakers could use it to justify their push for federal SOGI laws. “One wonders at the contradictory policy coming through USTR [U.S. Trade Representative] when other Departments under your Administration are working to come into alignment on SOGI policy,” it noted.

The USTR, likely spurred by the conservative backlash, made some last-minute tweaks to the agreement. In the first SOGI provision, the agreement adds that countries only agree to implement policies “that it considers appropriate.” A new footnote 13 clarifies that the clauses require no additions to U.S. law and that “existing federal agency policies regarding the hiring of federal workers are sufficient to fulfill the obligations set forth in this Article.”

The footnote limits the scope of the provisions to apply only to federal hiring practices. But the fact that the SOGI language remains at all leaves primary concerns unchanged. “A future Supreme Court and a future Congress can say, 'The 116th Congress already voted yes on an agreement that contained this definition,’” Ellis said.

The USTR’s office did not respond to multiple requests for comment.

Trump made replacing the North American Free Trade Agreement (NAFTA) a central campaign pledge. Under the Trade Promotion Authority (TPA) allowing him to broker the deal, he needs only a majority of each chamber of Congress for it to pass. Under fast track rules, lawmakers can only give the agreement an up-or-down vote, with no option to amend the implementing language.

Senate Majority Leader Mitch McConnell, R-Ky., has said Congress won’t likely have time to deal with the agreement until next session. But a Democratic House majority next session means Trump can’t afford to lose any GOP support. (Many Democrats oppose USMCA over environmental and enforcement concerns.)

Rep. Doug Lamborn, R-Colo., who spearheaded the letter effort, said he is disappointed that U.S. Trade Representative Robert Lighthizer “bowed to Canada’s wishes” and left the SOGI language in place.

In a statement to WORLD, Sen. Mike Lee, R-Utah, said the footnote renders the SOGI language “appropriately toothless,” but it would still be difficult for him to support the deal.

To crank up the heat on Congress to ratify his signature agreement, Trump told reporters the day after signing USMCA that he intends to withdraw the U.S. from its predecessor, NAFTA. That agreement allows any parties to withdraw six months after informing the other countries.

If enacted, the new trade agreement is valid for 16 years and is subject to a review every six years. It’s unclear whether the courts, lawmakers, or activists will wield an enacted USMCA to expand SOGI policies. In such cases, Christians may find themselves relying on the dubious protection of a footnote.