Two Dimensional Hard-Soft Law Theory and the Advancement of Women's and LGBTQ + Rights Through Free Trade Agreements

Abstract

What should free trade agreements (FTAs) say about gender, sexual orientation, and gender identity? No longer is “nothing” the only answer. The Comprehensive and Progressive Agreement for a Trans Pacific Partnership (CPTPP) and the United States-Mexico-Canada Agreement (USMCA) now discuss the rights of women and Lesbian, Gay, Bisexual, Transgender, Questioning, and Other (LGBTQ+) persons. They do so in Articles 23.4 and 23.9, respectively. But, these provisions are soft law.

These Articles ought to be strengthened to advance women’s and LGBTQ+ rights. That is, we argue gender, sexual orientation, and gender identity should be effectively addressed through hard law legal structures using hard law language that incorporates empirical insights.

Keywords: free trade agreements, FTA, gender, sexual orientation, Comprehensive and Progressive Agreement for a Trans Pacific Partnership, CPTPP, United States-Mexico-Canada Agreement, USMCA, women, LGBTQ