NAFTA 2.0 and LGBTQ Employment Discrimination

• Published date: 01 March 2020
• DOI: http://doi.org/10.1111/ablj.12154
• Author: Alex Reed
• Date: 01 March 2020

American Business Law Journal

Volume 57, Issue 1, 5–44, Spring 2020

NAFTA 2.0 and LGBTQ

Employment Discrimination

Alex Reed

*

Because federal law does not expressly prohibit employment discrimination on the basis

of sexual orientation or gender identity, LGBTQ Americans were thrilled to learn that

a preliminary draft of the United States–Mexico–Canada Agreement (USMCA)

included a provision (the Provision) requiring each nation to enact LGBTQ-inclusive

nondiscrimination laws. That excitement promptly turned to despair, however, after the

Trump administration insisted on the addition of a footnote (the Footnote) designed to

exempt the United States from the Provision. To date, the Footnote has been derided by

scholars and trade experts alike as a transparent attempt to evade the Provision’s

LGBTQ-inclusive mandate. Yet, by focusing only on what the USMCA does not do,

these analyses overlook what the agreement does do, even if unintended, to benefit

LGBTQ Americans. This article provides the first comprehensive analysis of

the USMCA’s implications for federal antidiscrimination law and demonstrates

that—regardless of how the Supreme Court rules in a trio of LGBTQ employment

cases—the Footnote actually stands to help, not hinder, the cause of LGBTQ equality.

INTRODUCTION

The United States–Mexico–Canada Agreement (USMCA or the

Agreement)

1

has prompted both elation and despair within the

*

Associate Professor of Legal Studies, Terry College of Business,University of Georgia. The

author gratefully acknowledges receipt of funding for this project through a Terry-Sanford

Research Award from the University of Georgia. The author would like to thank attendees

of the 2019 Academy of Legal Studies in Business conference in Montreal, Canada, for

their insightful comments and feedback on earlier drafts of the article.

1

See Office of U.S. Trade Rep., Agreement Between the United States of America, the United

Mexican States, and Canada Text, https://ustr.gov/trade-agreements/free-trade-agreements/

united-states-mexico-canada-agreement/agreement-between (last visited Oct. 21, 2019).

The USMCA is sometimes referred to as the “new NAFTA” or “NAFTA 2.0.” E.g., Glenn

©2020 The Author

American Business Law Journal ©2020 Academy of Legal Studies in Business

5

lesbian, gay, bisexual, transgender, and queer (LGBTQ) community.

Because no federal law expressly prohibits employment discrimina-

tion on the basis of sexual orientation or gender identity,

2

LGBTQ

persons were thrilled to learn that a preliminary draft of the Agree-

ment included a provision (the Provision) requiring each nation to

enact LGBTQ-inclusive nondiscrimination laws.

3

That excitement

was cut short, however, when—only hours before the signing

ceremony—the Trump administration insisted on the addition of a

footnote (the Footnote) designed to exempt the United States from

the Provision.

4

To date, the Footnote has been derided by trade exper ts and civil

rights advocates alike as a transparent attempt to evade the LGBTQ-

inclusive policies mandat ed by the Provision. One tr ade specialist has

asserted that “whatever you t hink of the LGBTQ provisions i n the new

NAFTA, this outcome—to include them b ut nullify them with a

footnote—is ridiculous.”

5

Another expert ackno wledged he has “never

seen a footnote quite like that” to the extent it declares “e xisting

U.S. law in compliance [with the Provision] … so [that] even if they ’re

technically not in compliance … th ey’re saying ‘well we’re complyi ng

anyway.’”

6

Separately, civil rights advocates have conde mned the

Footnote as protecting the rights of em ployers at the expens e of

Thrush, Trump Claims NAFTA Victory but Deal Faces Long Odds in U.S., N.Y. TIMES (Nov.

30, 2018), https://www.nytimes.com/2018/11/30/us/trump-nafta-usmca-signing.html.

2

See Alex Reed, Abandoning ENDA,51HARV.J.ON LEGIS. 277, 286–94 (2014) (noting that a

minority of courts perceive LGBTQ-related employment discrimination as actionable sex

discrimination under Title VII of the Civil Rights Act of 1964).

3

Cf. Letter from Jerame Davis, Exec. Dir., Pride at Work, to Robert E. Lighthizer, Ambassa-

dor, Office of U.S. Trade Rep. (Nov. 21, 2018), http://prideatwork.org/wp-content/uploads/

2018/11/USTR-LGBTQ-USMCA.pdf (asserting the USMCA’s LGBTQ-inclusive employ-

ment provisions “represent a step in the right direction to a better economy”).

4

Shane Croucher, Trump Uses Footnote to Dodge LGBTQ Rights in New Trade Deal with Mexico

and Canada,N

EWSWEEK (Dec. 4, 2018, 7:13 AM), https://www.newsweek.com/trump-uses-

footnote-dodge-lgbtq-rights-new-trade-deal-mexico-and-canada-1242937.

5

Geoffrey Gertz (@geoffreygertz), TWITTER (Nov. 30, 2018, 10:35 AM), https://twitter.com/

geoffreygertz/status/1068529052724559873.

6

Sources: New Language in USMCA Could Let the U.S. “Off the Hook” from Non-Discrimination

Protections,I

NSIDE U.S. TRADE, Dec. 3, 2018, 2018 WLNR 37549557 (quoting Simon Lester,

a trade policy expert at the CATO Institute).

6 Vol. 57 / American Business Law Journal

LGBTQ workers.

7

One advocate went so far as to declare “[o]nce again

[President Trump] caves to anti-LGBTQ activists and squan ders the

United States’ status as a leader in LGBTQ equality.”

8

This article rejects the notion that the Footnote nullifies Ameri ca’s

obligations per the Provision and inste ad contends that the Footnote

may be read as affirming the Equal Empl oyment Opportunity Commis-

sion’s position that anti-LGBTQ emplo yment bias is already actio nable

under U.S. law as a form of sex dis crimination. Part I provides a brief

history of the USMCA, with a pa rticular focus on the Provi sion. Part II

examines the lobbying campaign against the Provision and the eleventh-

hour addition of the Footnote. Part III demonstr ates that—regardless of

how the Supreme Court rules in a tri o of LGBTQ employment cases—

the Footnote actually stands to help, not hind er, the cause of LGBTQ

equality.

I. FROM NAFTA TO USMCA

On May 18, 2017, United States Trade Representative Robert Lighthizer

notified Congress that President Trump intended to renegotiate the

terms of the North American Free Trade Agreement (NAFTA).

9

Lighthizer asserted that NAFTA was “outdated” such that a new, “mod-

ernized” agreement was necessary to address an array of pressing trade

topics, including intellectual property rights, environmental standards,

and labor practices, among others.

10

He also cited the need for improved

7

Mary O’Hara, The Trump Administration Effectively Removed LGBTQ Protections from the New

NAFTA, INTO (Dec. 3, 2018), https://www.intomore.com/impact/the-trump-administration-

effectively-removed-lgbtq-protections-from-the-new-nafta (quoting Jennifer C. Pizer, Law

and Policy Director at Lambda Legal). See also Sarah Kate Ellis (@sarahkateellis), TWITTER

(Dec. 3, 2018, 2:21 PM), https://twitter.com/sarahkateellis/status/1069673053964173313.

8

Sarah Kate Ellis (@sarahkateellis), TWITTER (Dec. 3, 2018, 2:21 PM), https://twitter.com/

sarahkateellis/status/1069673053964173313.

9

Letter from Robert E. Lighthizer, Ambassador, Office of U.S. Trade Rep., to Charles

E. Schumer, Minority Leader, U.S. Senate (May 18, 2017), https://ustr.gov/sites/default/files/

files/Press/Releases/NAFTA%20Notification.pdf. This move was widely anticipated as Presi-

dent Trump had previously described NAFTA as “the worst trade deal in history.” Natalie

Kitroeff, Despite Fears, Mexico’s Manufacturing Boom Is Lifting U.S. Workers, L.A. TIMES (Aug.

21, 2016), https://www.latimes.com/projects/la-fi-manufacturing-boom-mexico/.

10

Lighthizer, supra note 9, at 1.

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