Gender-Identity Protection, Trade, and the Trump Administration: A Tale of Reluctant Progressivism
abstract. The Trump Administration has been hostile to transgender people, stripping away many protections from discrimination established by the prior administration. It is therefore striking 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 implement 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 orientation, 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 agreement, 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 draft, the Trump Administration could—and did—water down the protections in subsequent negotiations, but the Administration could not remove the protections entirely. The net effect 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 powerful governments to make value-laden commitments at odds with their own domestic agendas.
When the initial text of the United States-Mexico-Canada Agreement (USMCA) 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 “implement[ing] policies that protect workers against employment discrimination 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 agreement2—end up in a trade agreement negotiated by the Trump Administration?
Some Trump Administration officials must have wondered this too, for the language changed. As the USMCA was finalized for signature, Article 23.9 dwindled to committing each country to “implement policies that it considers appropriate to protect workers against employment discrimination on the basis of sex, . . . sexual orientation [and] gender identity.”3 A footnote further downplayed the effect of this provision for the United States.4 Yet although these changes stripped Article 23.9 of most of its substantive impact, the Agreement retained language assuring freedom from discrimination on the basis of sexual orientation and gender identity that contrasts sharply with other Trump Administration policies.5
This Essay uses Article 23.9 as a window into understanding how international negotiations can lead even powerful governments to make value-laden commitments at odds with their own domestic agendas. One burgeoning account 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 23.9 reminds us that this account is not exhaustive, and that influence in other directions is possible as well. Here, Canada succeeded in writing 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 Office 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 23.9 suggest that, prior to the release of the initial version, USTR likely 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 priority President Trump placed on reaching a deal, and the apparent lack of interagency consultation all seem to have contributed to USTR’s initial acceptance of Article 23.9’s protective language.
In 2017, 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 1994.8 President Trump had campaigned, in part, on either renegotiating or withdrawing from NAFTA, to which he referred as “the single worst trade deal ever approved in this country,” and which he blamed for decreasing domestic manufacturing.9 Thus, after lengthy and contentious negotiations, the United States reached a new agreement with Mexico and Canada on October 1, 2018. Securing this agreement came down to the wire, as U.S. law effectively 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 1.11 Following the publication of the initially agreed-upon text on October 1, the agreement then went through a “legal scrub”—a final vetting by lawyers that is technical in theory but can include some substantive renegotiation in practice.12 On November 30, 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 left 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. In 2016, a Chile-Uruguay free-trade agreement stated that the countries “recognize[d] the importance of promoting policies and practices of gender equality . . . [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-related 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 October 1, 2018, Article 23.9 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 policies that protect workers against employment discrimination on the basis 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 members, 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 decisions21 to remove Obama-era protections for 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 30, the provision had been renegotiated and its protections watered down. The finalized text of Article 23.9, which was renamed “Discrimination in the Workplace,” now read:
The Parties recognize the goal of eliminating discrimination in employment and occupation, and support the goal of promoting equality of women in the workplace. Accordingly, each Party shall implement policies13that 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; provide job-protected leave for birth or adoption of a child and care of family members; and protect against wage discrimination.23
Further, the United States added footnote 13:
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.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, footnote 13 attempted to limit any expansion of U.S. antidiscrimination obligations by asserting that current policies suffice to ensure U.S. compliance with the agreement, and by appearing to read the main text as relevant only to the protection 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 responsibilities were all “include[ed]” as subcategories of sex discrimination. But the final USMCA provision included sexual harassment only as an example of sex discrimination, 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 23.9 came to be part of the USMCA, in spite of the disjunct between its content and the Trump Administration’s general approach to gender issues.
What explains the change in how discrimination on the basis of sex was defined 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 responsibilities.29
The issue is more complex, however, regarding discrimination on the basis of sexual orientation and gender identity. On the one hand, the Equal Employment Opportunity Commission (EEOC), the independent agency responsible for enforcing Title VII, maintains that discrimination based on both sexual orientation and gender identity are forms of sex-based discrimination prohibited by Title VII.30 On the other hand, in 2017, then-Attorney General Jeff Sessions 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 addition 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 remaining circuits have older precedents holding that Title VII does not bar discrimination based on sexual orientation,34 and—in the case of three circuits35—have recently affirmed 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 left their old precedents largely untouched, neither relying on nor reaffirming them in precedential decisions within the last decade.38 The remaining circuits have yet to address the issue.
In light of the circuit splits, the Supreme Court has—after consideration during 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 orientation 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 “ordinary meaning” of sex in Title VII could be inferred from the fact that other federal statutes treat sexual orientation and gender identity as distinct categories from sex.43
The move in the finalized text to separate the categories likely reflects concerns 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 responsibilities from discrimination based on “sex.”
In addition to its substantive implications, the change in language from the initial to the final drafts of the USMCA suggests something about the negotiating 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 23.9 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 after the USMCA’s initial publication.46
A lack of consultation among Trump Administration officials about U.S. employment discrimination law may help explain how the words “sexual orientation” and “gender identity” made it into the USMCA at all. “[W]hile the President 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 correspondingly lower premium on the content of Article 23.9.48 And, once the terms “sexual orientation” and “gender identity” made it into the initial published text, this language had staying power. While Canada made some concessions regarding Article 23.9 during the legal scrub, Canadian negotiators had a strong argument that the total removal of these terms would result in an unacceptable loss of moral face for the country.49 The negotiated result was a provision that was thin but still meaningful.
The final text of the USMCA dashed most of the hopes raised by the initial version. One LGBTQ advocate remarked grimly that footnote 13 “effectively nullified” the original protections and that Trump had “[o]nce again . . . squander[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.
The initial version of Article 23.9 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 attempts to explicitly incorporate these grounds into Title VII have failed.51 Protection against discrimination on the basis of sexual orientation and gender identity 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 outlawed employment discrimination on these grounds.53 Mexico has also prohibited employment discrimination based on sex, sexual orientation, and gender, which includes gender identity and expression.54 The initial version of Article 23.9 would thus have been a particularly significant commitment for the United 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 23.9, footnote 13 appears to limit U.S. obligations 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 13 narrows the scope of the main text, it arguably bolsters 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 23.9 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 sufficient to fulfill the obligations set forth in this Article” can be read to rest on the implicit premise that Article 23.9 does create genuine “obligations” rather than stating aspirational goals. The federal agency policies referred to in the footnote derive solely from President Obama’s Executive Order 13,672, which prohibits the federal government from discriminating against employees on the basis of sexual orientation or gender identity.56 The footnote can thus be read to commit the United States to the continuance of these protections—notwithstanding the Trump Administration’s eagerness to roll back Obama-era protections tied to sexual orientation and gender identity.
In addition to this limited but meaningful substance, Article 23.9 has expressive significance, both internationally and domestically. The expressive function of international agreements is well-recognized, particularly with respect to human rights.57 Human-rights provisions in trade agreements can be included in agreements between like-minded countries, as was the case with the gender chapter in the Chile-Uruguay Free Trade Agreement.58 Often, however, “developing 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 commitments, such commitments are usually not enforced.60 As such, the purpose of these provisions is often 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 economically more powerful United States.
Domestically, although the USMCA provision has limited practical effect, 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 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 2013, which prohibits discrimination on these grounds in programs that received funding under the Act.64 The limited scope of these protections signals disfavored status for people who are not heterosexual or cisgender. As Elizabeth Anderson and Richard Pildes have observed, “legal communications of state attitudes . . . often impose different 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 effect. Since the USMCA is an international agreement, however, Congress cannot 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 affair.67 Perhaps recognizing how limited their clout would be after the USMCA was signed, forty-six Republican representatives registered their objections to Article 23.9 while the legal scrub was ongoing.68 Referring to the Trump Administration’s “cohesive agenda regarding policies surrounding sexual orientation 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 version of Article 23.9 addresses some, but not all, of these concerns. When the USMCA 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 Republican votes.72
In the era of international regulatory cooperation, free-trade agreements often 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 expansive 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, Canada was able to pressure the United States into accepting human-rights 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.