When President Donald J. Trump, Canadian Prime Minister Justin Trudeau and (now former) Mexican President Enrique Peña Nieto signed the U.S.-Mexico-Canada Agreement on Friday, the final draft was notably missing a proposed anti-discrimination clause—and it signals a win for Congressional Republicans
Last month, House Republicans said the proposed discrimination protections in the USMCA, aka the ‘new NAFTA,’ infringed on U.S. autonomy, and they threatened to block approval of the deal in Congress if it included language specifying what constitutes sexual discrimination, as Trudeau has pushed for. “A trade agreement is no place for the adoption of social policy,” read a letter signed by 40 lawmakers in November.
The original text of the proposed agreement said all three countries must support “policies that protect workers against employment discrimination on the basis of sex, including with regard to pregnancy, sexual harassment, sexual orientation, gender identity.” The new wording asks each country to implement policies each “considers appropriate to protect workers against employment discrimination on the basis of sex.”
The United States added a footnote saying: “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.”
Just signed one of the most important, and largest, Trade Deals in U.S. and World History. The United States, Mexico and Canada worked so well together in crafting this great document. The terrible NAFTA will soon be gone. The USMCA will be fantastic for all!— Donald J. Trump (@realDonaldTrump) November 30, 2018
The United States’ opting out of any further protections drew criticism from a fellow at the Brookings Institution, who called the gist of the footnote “ridiculous.”
Honestly, whatever you think of the LGBTQ provisions in the new NAFTA, this outcome - to include them but nullify them with a footnote - is ridiculous. And it's the kind of thing that will make progressives even more suspicious of engaging with trade liberalization (ht:@snlester) https://t.co/6dY6ZezgAE— geoffrey gertz (@geoffreygertz) November 30, 2018
It’s unclear how “policies regarding the hiring of federal workers,” as mentioned in the U.S. footnote, would suffice to cover U.S. workers in the private sector.
What’s more, there is no federal law in the United States barring discrimination based on sexual orientation or gender identity. It’s currently legal to discriminate against gay employees in 29 states and transgender workers in 34 states. Discrimination based on sexual orientation was outlawed in Canada in 1996, PinkNews reports, and discrimination based on gender identity or expression was banned n 2017. Mexico outlawed discrimination based on sexual orientation in 2003, but it has not banned discrimination based on gender identity or expression.
The office of U.S. Trade Representative Robert Lighthizer did not immediately return Fortune‘s request for comment on the sexual orientation and gender identity bias clause in the USMCA.
Before USMCA comes into effect, it must be approved by Congress, and the U.S. International Trade Commission has 100 days to create a report on the effects of the new deal.
Another notable point in the USMCA is the extension of drug patent protection across North America to at least 10 years—Canada’s current rules protect drug makers from generics for eight years, and Mexico’s just five years.