Zachary Simmons

One of the many powers wielded by Congress is the ability to delegate to the president the authority to negotiate most kinds of free trade agreements (“FTAs”) through trade promotion authority (“TPA”). TPA legislation allows Congress to articulate its objectives for FTAs negotiated by the executive branch and facilitates the smooth passage of FTAs in Congress through expedited approval procedures, including “up or down” simple majority votes on completed FTAs without the opportunity for amendment. The current TPA legislation, signed into law in 2015, will lapse this summer, prompting questions on whether and when the Biden administration will seek, and Congress will grant renewed TPA. Whenever TPA is ultimately renewed, Congress should ensure that the legislation includes a provision aimed at securing the rights of LGBT individuals in the countries with which the United States executes FTAs. 

The process of renewing TPA provides Congress with an opportunity to revisit its priorities for U.S. trade policy. These priorities are laid out in negotiating objectives enumerated in the TPA legislation and must be pursued by the executive branch in its FTA negotiations to ensure passage of any negotiated agreement by Congress. Examples of negotiating objectives contained in the current TPA legislation include protecting and preserving the environment, promoting respect for worker rights, and securing greater market access and enhancing the competitiveness of the United States. ADVERTISING

While Congress has yet to consider the next set of negotiating objectives to be included in renewed TPA legislation, many members have already vocalized their support for a more progressive trade agenda. Consistent with this vision for U.S. trade policy, a negotiating objective focused on securing a minimum standard for LGBT rights in U.S. FTA partners would reflect a logical outgrowth of current negotiating objectives, prevailing public sentiment, and good economic policy.

An LGBT rights negotiating objective would represent a meaningful and logical improvement upon current negotiating objectives. For example, a principal negotiating objective in the current TPA legislation is to “ensure that a party to a trade agreement with the United States does not waive or otherwise derogate from…its statutes or regulations implementing internationally recognized core labor standards…” Such core labor standards include “the elimination of discrimination in respect of employment and occupation.” Consistent with this objective, the United States has already endorsed protections against workplace discrimination of LGBT people in the United States-Mexico-Canada Agreement (albeit at the discretion of each party). Building on this progress, Congress could adopt a negotiating objective aimed at securing a broader set of LGBT rights, demanding the decriminalization of same-sex sexual orientation and protections against discrimination and violence against LGBT people. Such negotiating objective would, in effect, set a floor above which U.S. trading partners must rise to secure commercially-advantageous deals with the United States.

An LGBT rights negotiating objective is also consistent with prevailing public sentiment. Considering the rise of LGBT Americans to new heights in the Biden administration, and the upswell in support for LGBT rights in the United States, it is unimaginable that the United States would negotiate FTAs with countries that arrest and jail LGBT individuals on account of their sexual orientation.  Yet, the Obama Administration did just that during its Trans-Pacific Partnership (“TPP”) negotiations with Brunei, a country with an abysmal LGBT rights record. Under the Trump administration, the United States also commenced FTA negotiations with Kenya, a country that criminalizes homosexuality and where, according to the U.S. Department of State, “{v}iolence and discrimination against LGBT{} individuals {i}s widespread.”  The American people expect that the United States does not reward countries that fail to respect the dignity of human life with lucrative FTAs. This expectation should be enshrined as law, and not subject to mere executive branch discretion.

Finally, and in addition to the positive human rights outcomes that would result from an LGBT rights negotiating objective, such a provision would economically benefit the United States. Just as ensuring U.S. FTA partners’ compliance with fundamental labor rights such as the freedom of association makes American labor more cost competitive, so too does ensuring the full integration and just compensation of LGBT workers overseas. The scale of underemployment and wage discrimination against sexual orientation and gender minorities in major economies is well documented. In South Africa, for example, the Williams Institute at the University of California, Los Angeles determined the cost of such underemployment and wage discrimination to be $316.8 million per year. Renewed TPA legislation should require that U.S. FTA partners eliminate such barriers to LGBT equality as a matter of economic policy.

Although an LGBT rights negotiating objective will almost certainly face criticism from trade “purists” – those who believe social prerogatives have no place in trade policy – and social conservatives, fighting to include such a provision in renewed TPA legislation is a battle worth waging. There has never been a better political climate to integrate and pursue jointly important U.S. economic and human rights objectives, and the Democratic-controlled Congress should seize the opportunity.

Zachary Simmons is an international trade attorney at Steptoe & Johnson LLP in Washington, D.C., and previously served in the Office of the Chief Counsel for Trade Enforcement and Compliance at the US Department of Commerce and the Office of General Counsel at the Office of the United States Trade Representative. He chairs GATT DC, the association of LGBT professionals in international trade and development.