NAFTA 2.0 and LGBTQ Employment Discrimination

Abstract

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.