Politics & Policy

Trade Agreements Are Not the Place to Make Laws on ‘Gender Identity’

A bathroom sign welcomes both genders in Durham, N.C., May 3, 2016. (Jonathan Drake/Reuters)
The president is running out of time to fix a mistake his negotiating team made.

Social policy should not be determined by a trade agreement. In a letter delivered to President Trump earlier this month, 46 conservative members of Congress said they were “deeply concerned by the unprecedented inclusion in the U.S.-Mexico-Canada Agreement (USMCA) of sexual orientation and gender identity (SOGI) language, for the first time in a Free Trade Agreement.”

This language is housed in Article 23.9 and Article 23.12, 23 being the chapter on labor. It requires the parties to protect workers from discrimination based on sexual orientation and gender identity (SOGI), and to promote “equality” in these areas. As we have seen in recent years, of course, such edicts often run headlong into the constitutional right of religious business owners not to violate their core beliefs, in addition to raising thorny questions in a variety of areas including bathroom privacy. This stands to take away freedoms from every private business and churches as well. Congress is also concerned this would violate the constitutional separation of powers because Congress has steadfastly refused to include SOGI language in federal law, and the executive branch does not have legislative power to force new policy through a trade agreement.

The member letter is right. A trade agreement is not the appropriate place to adopt such a controversial social policy. As the letter states, “It is especially inappropriate and insulting to our sovereignty to needlessly submit to social policies which the United States Congress has so far explicitly refused to accept.” And the agreement is due to be signed tomorrow.

To be clear, there is a legal question of whether the current language would create a new obligation for compliance. But there is also a concern about the precedent this would set for future trade agreements and the strong likelihood that an activist court would point to the language as an excuse to cement these policies in U.S. law. On top of that, the language stands in stark contrast to the Trump administration’s own approach to the issue, as the president is working to undo Obama-era executive orders that went beyond federal law to implement SOGI protections in certain contexts.

Why is this happening? According to an article in Politico, Canada wanted an entire chapter advancing Justin Trudeau’s social policy, and the current language is the resulting “compromise.” But self-government means that Americans decide the rules for Americans. It does not mean that unaccountable, appointed bureaucrats negotiate behind closed doors, promising foreign governments that we will pass laws or policies on issues like this.

Although trade agreements can contain language relating to human rights and anti-discrimination policy, such as agreeing not to use child or slave labor or to enforce anti-discrimination laws in accordance with a country’s national law, a trade agreement is no place to be advancing an unsettled and controversial new concept. There are good reasons for civil-rights laws to be decided by the legislature, not the executive, not the least of which is that the Constitution specifically gives this power to Congress.

This was a problem when Barack Obama issued executive orders in 2014 declaring “gender identity” to be a protected class in government employment and contracting. It’s also a problem when an executive agency like the U.S. Trade Representative (USTR) rewrites anti-discrimination law in a trade agreement. A trade agreement may require approval from Congress, but it is not given the same level of scrutiny as real legislation.

Because Congress has granted the president “Trade Promotion Authority” (TPA), he has the ability to negotiate fast-tracked treaties. (Notably, this delegation of authority has been questioned as unconstitutional.) Congress will not be able to debate the language negotiated by the president or add amendments. Congress will be presented with an up-or-down vote on the entire agreement. That isn’t how laws should be made, and the USTR should not oblige Congress with a duty to affirmatively legislate. But because of TPA, if the SOGI provisions are included in the agreement, they will become law unless Congress is willing to vote down the entire thing. They will be passed by both houses and signed by the president.

Speaking of the president, meanwhile, a recently leaked memo from the administration contemplating this very issue (in the context of federally funded education programs) held that, under federal law, “sex” refers simply to biological sex and not to one’s chosen gender identity. Thus the USTR has clearly put the Trump administration in a difficult position, entirely unnecessarily. It appears the people who have made their way into the USTR’s office are not on board with the administration’s policy on this issue.

Trump should not allow this. The U.S. retains sovereignty to determine its anti-discrimination policies for itself, and for Canada to foist its preferred agenda on us is indeed insulting. It’s frankly embarrassing for the USTR to have agreed.

The United States is a world leader, and what we do is often pointed to as best practice by other countries. Is this best practice? The language has cost us friends in some of the developing countries in Africa and other continents with more traditional and conservative views on marriage, the family, and sexuality.

The members of Congress who signed the letter are right to urge the president to fix the problem before the agreement is signed tomorrow in Buenos Aires. President Trump has an excellent record for constitutionally sound policy, and the USTR should not be allowed to blemish that record at Canada’s boorish insistence. If the White House ignores or tries merely to minimize the problem, it will be up to Congress to have the courage to vote down the agreement and insist on a redrafting that stays within the limits of legitimate and constitutional trade negotiations.

— James Dobson is the founder and president of Family Talk and the James Dobson Family Institute, a nonprofit organization that produces his daily radio program, “Dr. James Dobson’s Family Talk.” Jenna Ellis is the director of public policy at the James Dobson Family Institute.

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