For the first time in a free trade agreement, sexual orientation and gender identity language (SOGI) is contained within President Trump’s U.S.-Mexico-Canada-Agreement (USMCA). At Canada’s insistence, Article 23 of the agreement redefines the word “sex” to include “sexual orientation and gender identity.” Canadian Prime Minister Justin Trudeau’s government is calling it a “win” for the LGBT community. But it is a loss for American sovereignty.
The inclusion of this language may come as a surprise, given the fact that the Trump administration is currently working to create consistent policies regarding SOGI. In October 2017, then-Attorney General Jeff Sessions issued a memo to U.S. attorneys clarifying that sex discrimination does not encompass gender identity, including transgender status.
{mosads}A leaked memo from Department of Health and Human Services stated that government agencies should adopt a definition of gender “on a biological basis that is clear, grounded in science, objective and administrable.” Under this definition, sex would be defined as male or female and determined at birth.
It is troubling that the USMCA is pushing language contradictory to this administration’s policies. Earlier this month I sent a letter to President Trump, along with 45 co-signers from the U.S. House of Representatives, urging him to remove the SOGI language before signing the agreement with President Enrique Peña Nieto of Mexico and Trudeau on Nov. 30.
There are several reasons that the SOGI aspect of the trade language should raise alarms not only for the federal government but for the American people as well.
First, as a sovereign nation, the United States has the right to decide when, whether, and how to tackle issues of civil rights, protected classes and workplace rights. This is not an argument regarding the merits of sexual orientation and gender identity protections. Rather, our contention is simply that decisions related to SOGI policies belong to Congress – not to Canada, and not to the U.S. trade representative. It undermines our nation’s sovereignty to needlessly submit to foreign social policy, and further, it unnecessarily politicizes a multilateral trade agreement.
Second, we are concerned that this sets a precedent for activist courts to cite as congressional support for SOGI language once we pass the USMCA.
I am confident that we as a country are dedicated to protecting First Amendment rights for all Americans while respecting dignity for all. SOGI laws and court decisions have too many times been a blunt instrument to protect some at the expense of others. These SOGI laws and court precedents have prevented citizens’ right to run their local schools, charities and businesses in ways consistent with traditional values. The trade agreement’s language does not advance this important debate in a way that allows the elected representatives of the American people to take part.
Finally, the SOGI language in the trade agreement is vague and undefined. “Gender identity” and “sexual orientation” need clear definitions, but who gets to define those terms? This leads to unintended consequences. We’ve seen this time and time again in recent years. Codifying purposefully vague language on such an important issue will only lead to further confusion and division in our society.
The United States should protect its sovereignty over the interests of other countries. A trade agreement is no place for the adoption of social policy.
Lamborn represents Colorado’s 5th District.