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The New NAFTA is a missed opportunity for gender equality

January 23, 2019

5-minute read

The recent renegotiation of the North American Free Trade Agreement presented a unique opportunity to rethink the dominant model for governing international trade and investment. At the outset of the “New NAFTA” talks in August 2017, Foreign Affairs Minister Chrystia Freeland outlined the government’s priorities under the umbrella of a “progressive trade agenda” (PTA). These objectives included a commitment to advancing gender equality by including a gender rights chapter.

Unfortunately, the new deal, known alternately as the USMCA or CUSMA (or T-MEC in Spanish), appears to have abandoned most of the government’s PTA priorities before they could take root. There is some limited language recognizing the importance of gender equality, but no gender chapter, for example. In this and other ways, the “New NAFTA” merely entrenches a dominant trade model that growing numbers of experts, civil society and social movement actors want to see rebuilt from the ground up.

Why a gender lens?

Trade is not gender neutral. The uneven effects of trade are typically discussed by governments and international organizations in the context of women-owned businesses and women entrepreneurs who face barriers to accessing trade opportunities and, in turn, do not share in the potential benefits.

While this is important, trade also has wider gendered impacts that must be considered. For example, women are disproportionately impacted by the negative effects of trade liberalization on employment, public services and health care, unpaid care work, food and agriculture, and the climate. Notably, these effects have a more pronounced impact on racialized women, Indigenous women, (im)migrant women, trans women and women with disabilities.

In a recently completed public consultation on trade and gender equity, the Canadian government itself acknowledged the importance of applying a gender analysis to trade policy: “Evidence has shown that trade affects women and men differently.... Incorporating gender perspectives into macro-economic policy, including trade policy, is key to pursuing sustainable economic development and to achieving fairer and beneficial outcomes for all.”

Lost opportunity

Achieving these outcomes requires a serious commitment to including tangible and enforceable measures and to incorporating a gender analysis into all aspects of the agreement. In our research on the gender dimension of Canada’s PTA, we conducted interviews with representatives from government, labour unions, women’s rights and other civil society organizations that yielded insights into the PTA and recommendations for improvement.

So far, the Canadian government has taken the approach of including a standalone gender chapter in new trade agreements including renegotiated deals with Chile and Israel. While these chapters have positive elements—referencing multilateral agreements on gender equality, for example, and promoting co-operation—they may lack the “teeth” and resources to realize their stated goals. The “modernized” free trade deal with Israel is the first Canadian FTA to make a gender chapter subject to the agreement’s dispute settlement mechanism, but the Canada-Chile FTA does not do this.

Interviewees agreed that the NAFTA renegotiation, fueled by the Trudeau government’s commitment to gender equality, represented an opportunity to meaningfully infuse gender analysis and considerations into trade policy. Advancing gender equity requires more than the addition of an enforceable gender chapter. Meaningful consultation with experts and the public; gender mainstreaming, particularly in provisions and policies pertaining to public services, intellectual property (access to medicines), agriculture, environmental protection and labour rights; and applying an intersectional gender analysis that considers the complex, multidimensional and context-specific nature of an agreement’s gendered impacts, both before and after implementation, are just as important.

Canada conducted no such impact assessment prior to signing the USMCA/CUSMA, and ended up dropping the idea of a gender chapter altogether to get its new deal with the Trump administration.

How the new agreement measures up

So what does the “New NAFTA” say about gender? There are occasional references here and there, such as in the chapter on small- and medium-sized enterprises, in which the parties agree to collaborate on promoting small businesses owned by underrepresented groups, including women, Indigenous people and youth.

The only chapter that addresses the links between gender and trade in any substantive fashion is the labour chapter. The inclusion of this chapter in the main text of the agreement, rather than as a side-accord, does represent an improvement over NAFTA, since the contents of this chapter can be enforced through state-to-state dispute settlement. This means, however, that the governments would have to be willing to bring this type of case forward, a decision that cannot be separated from politics.

Importantly, the chapter recognizes the three governments’ commitment to the International Labour Organization’s fundamental labour rights, including “the elimination of discrimination in respect of employment and occupation,” and includes the goals of eliminating discrimination in employment and occupation, and promoting women’s equality in the workplace.

The labour chapter includes other progressive objectives such as co-operating to address “gender-related issues in the field of labour and employment,” including eliminating discrimination in employment and wages; promoting equal pay for equal work; consideration of gender issues related to occupational safety and health, including child care and nursing mothers; and preventing gender-based workplace violence and harassment.

The original text of the agreement, in Article 23.9 on discrimination in the workplace, included a commitment to implement “policies that protect workers against employment discrimination on the basis of sex (including with regard to sexual harassment), pregnancy, sexual orientation, gender identity, and caregiving responsibilities.” It was a significant, binding commitment the government could justifiably have pointed to as a PTA achievement. But like the gender chapter, this provision would also not make the final cut.

The inclusion of sexual orientation and gender identity in the USMCA/CUSMA text provoked an angry reaction from some Republicans who threatened to block the deal as a result. The language was revised to ask each country to implement policies each “considers appropriate to protect workers,” effectively gutting the article by making it voluntary. The revised text also includes a footnote indicating that existing U.S. federal agency policies regarding the hiring of federal workers are “sufficient to fulfill the obligations set forth in this Article,” and therefore it requires no further action on the part of the U.S. government.

A disappointing outcome

In May 2017, civil society and social movement actors from across North America gathered in Mexico City to discuss and articulate the principles that should underpin a new model for North American co-operation. The principles, which were eventually written into a joint declaration, reflected an approach rooted in democratic participation, transparency, sovereignty and the respect of human and environmental rights.

The revised NAFTA falls significantly short of meeting these objectives. By watering down its gender proposals for the USMCA/CUSMA, the Liberal government has shown itself unwilling to stand up for its stated principles when push comes to shove. The government may be moving away entirely from its “progressive trade agenda,” as business voices have been encouraging since the PTA was announced.

In the end, the “New NAFTA,” much like the recently ratified “Comprehensive and Progressive” Agreement for Trans-Pacific Partnership (CPTPP) and Canada-EU trade agreement (CETA)—both Conservative-era deals—represents continuity with an embattled, corporate-biased trade and investment model more than anything new, let alone progressive.

Laura Macdonald is a Professor in the Department of Political Science and the Institute of Political Economy at Carleton University. Nadia Ibrahim is Co-ordinator of the Trade Justice Network.

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