Footnote in CUSMA text allows U.S. to avoid LGBTQ rights clause

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A footnote in the new CanadaUnited States-Mexico-Agreement appears to exempt the U.S. from labour practices that would promote equality in the workplace.

The agreement, which was signed last week, has two lines about LGBTQ issues: one pledging the three countries to support “policies that protect workers against employment discrimination on the basis of sex, including with regard to pregnancy, sexual harassment, sexual orientation, gender identity.”

But a footnote in the text of the document specifically says the U.S.’s current policies regarding hiring is “sufficient to fulfill the obligation set forth.”

READ MORE: Republicans want LGBTQ clause cut from USMCA – should trade talks dictate social policy?

The footnote is an apparent victory for the 40 Republican members of Congress who sent a letter to President Donald Trump urging him to scrap the policy.

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In the letter, they said a trade deal was no place for social policy.

WATCH: Trudeau refers to USMCA only as ‘new NAFTA’

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Trudeau refers to USMCA only as ‘new NAFTA’

Article 23.9 lays out policies to work together to end employment discrimination, explained Sarah Kaplan, director of the Institute for Gender and the Economy and professor at the Rotman School of Management at the University of Toronto.

But she said the footnote completely nullifies the article for the United States – which is bad because the U.S. doesn’t actually meet the standards laid out in the text of CUSMA.

“If you look at the United States, the federal law is not sufficient to meet those standards. In fact, no federal law covers sexual orientation and gender identity at all,” Kaplan explained. 

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“In Canada, we already have those protections and that’s why Canada was actually pushing to have it continue to be included in the USMCA.”

Canadian officials say while the footnote does specify that the U.S.’s policies are sufficient, the clause will prevent any rollbacks in policies regarding gender identity and sexual orientation discrimination.

“We are proud to have signed the new NAFTA agreement, which is the first international trade deal that recognizes gender identity and sexual orientation as grounds for discrimination in its labour chapter and contains measures to ensure these grounds are enforceable,” Global Affairs spokesperson Adam Austen told Global News.

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Mexican trade officials previously defended the inclusion of the anti-discrimination clauses.

“The three #NAFTA partners realized that in order to create a consensus in favor of #trade agreements, state-of-the-art and progressive disciplines that encompass economic and social issues needed to be included in the new agreement,” Kenneth Smith Ramos, Mexico’s head of the technical negotiation for NAFTA, wrote on Twitter in November.

Kaplan agreed that the clause does create a foothold for future negotiations.

“The fact is that the language is in now the USMCA,” she said. “You could imagine in future years when it might be renegotiated or adapted, one of the points of negotiation would be to take the footnote out.“

Read the full text in question:

ARTICLE 23.9: Discrimination in the Workplace:

The Parties recognize the goal of eliminating discrimination in employment and occupation, and support the goal of promoting equality of women in the workplace.

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Accordingly, each Party shall implement policies** that 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.

** Footnote:                                                                                                   

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