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.

Keywords: International trade law, new NAFTA, United States-Mexico-Canada Agreement, USMCA, transgender discrimination, hostile domestic policies, international commitment to protect gender identity and sexual orientation, expressive norms, substantive & expressive reach of USMCA’s sex-related protections