Opening Packet – Negative – hss 2017 offcase materials start here

Extensions

Extensions - Social trends emerging now/bottom-up change

Status quo solves now. Trans- movement does change institutions – but by working outside the Law through bottom-up efforts.

Katyal ‘17

Sonia K. Katyal - Chancellor's Professor of Law, University of California, Berkeley, School of Law. The author also serves as the Co-Director for The Berkeley Center for Law & Technology. The author holds a BA from Brown Univ and a JD from the Univ of Chicago School of Law. “The Numerus Clausus of Sex” - University of Chicago Law Review - Winter, 2017 – lawrev; allrev

There is a fundamental revolution under way regarding the relationship between gender and the state, both domestically and internationally. Across the world, the rise and visibility of transgender rights movements have forced a persistent rethinking of the legal presumptions associated with science, sex, and gender. For years, the law has largely maintained a steadfast commitment to the idea that one's assigned sex - referring to the binary polarities of male and female - operated as a relatively stable fixture, capable of being mapped onto one's gender identity [*391] and self-perception. This expectation of stability translated into a basic presumption within law and policy that gender identity and assigned sex almost always align with one another - that the binary formation of sex operated as a basic organizing principle to formalize and reify gender expression, sexuality, and so forth. In turn, antidiscrimination jurisprudence reflects these principles and, with the exception of a minority of cases, has historically labored under the perception that gender identity and assigned sex rarely conflict with one another. The myriad of legal regulations that deploy sex classifications rest on this presumption; everything from the procurement of passports to access to social services to the gathering of data relies on the presumption of the binary, fixed nature of assigned sex.

Today, these perceptions are increasingly confronted with the reality that the relationship between gender and sex is far more complicated than the law currently recognizes. Our global culture and legal landscape are replete with examples that continually demonstrate the discontinuity of the relationship between gender and sex, calling for a more complex representation of reality. n1 In 2014, Facebook decided to offer its users more than fifty terms for gender self-identification, recognizing that many people use a multiplicity of terms other than male or female to describe themselves. n2 As of 2017, at least three people in the United States have been able to obtain "nonbinary" or "intersex" as their legally designated gender. n3 Indeed, the transgender [*392] rights movement is - and has always been - global in scope; many courts, countries, and municipalities throughout the world have faced similar pushes toward pluralism, leading some nations to offer a third category for those who identify as something other than male or female. n4

Popular culture, too, has begun to reflect these identities. n5 Even before Caitlyn Jenner and Laverne Cox captured the mainstream's attention with a particular representation of transgender identity, there were rapidly increasing numbers of people who identified as neither male nor female, in addition to agender, bigender, nonbinary, or genderqueer individuals, and those relying upon other categories of gender nonconformity. n6 Many view gender as fluid, as transitory, or as something that does not necessarily need to be assigned at all. n7

Bottom-up change is happening now – a cultural-led Trans- Tipping Point is coming now.

Penny ‘14

Laurie Penny is a contributing editor to the New Statesman. She is the author of five books - From the article: “What the “Transgender Tipping Point” Really Means” – New Republic - June 27, 2014 – Modified for Language that may offend - https://newrepublic.com/article/118451/what-transgender-tipping-point-really-means

This month, Time magazine published a cover story titled "The Transgender Tipping Point." The trend-hungry American press is toppling over with spurious tipping points, but this one is real, and it’s important. Centuries of marginalization mean that the statistics are still shaky, but it is estimated that between 0.1 and 5 percent of the population of earth is trans, genderqueer, or intersex. Whichever way you slice it, that’s millions of human beings. As a species, we have come up with space travel, antibiotics, so it seems rather archaic that so much of our culture, from money and fashion, love and family is still ordered around the idea that people come in two kinds based roughly on the contents of their underpants.

Something enormous is happening in our culture. In the past three years, and especially in the past twelve months, a great many transsexual celebrities, actors and activists have exploded into the public sphere. Some of have taken the brave step of disclosing their trans status after they were already household names, like American presenter Janet Mock, rockstar Laura Jane Grace, athlete Fallon Fox, Oscar-winning director Lana Wachowski or activist and former soldier Chelsea Manning. Others have simply become successful without hiding or apologising for their trans status, like sassy British columnist Paris Lees, or actress Laverne Cox, star of "Orange Is The New Black," who graced the Time cover as one of a new generation of breakout trans stars.

At the same time, the internet is making it easier for members of a previously isolated section of the population to find and support one another. Until recently, the threat of violence, coupled with the relatively small visible number of trans people, meant that coming out was a fraught, complicated process. It often meant moving away from your hometown, finding a community in a city, changing your job, your school. Transgender people in isolated or rural areas found it very difficult to make connections with others who might be able to understand their situation and offer advice. A great many trans people waited decades before deciding to transition in public—and some attempted to keep that part of their lives secret forever, at great personal cost.

The network changed all that. Partly because of the internet, and partly because of a new wave of transgender role models, more and more people are coming out as trans, and they are doing so younger, and their friends and families now have the language to understand what that means. As celebrated trans author Julia Serano told me over email, “The truth is that trans people exist and our lives are fairly mundane. In the U.S., the number of transsexuals is roughly equivalent to the number of Certified Public Accountants. Nobody views accountants as exotic or scandalous!”

Not everyone is born a boy or a girl and stays that way. A significant minority of the population is born intersex, meaning that they are not clearly assigned as biologically male or female when they are born, and many more are transgender, meaning that they do not identify with the sex they were assigned at birth, and sometimes choose to change their physical appearance with hormones or surgery.

If gender identity is no longer a fixed commodity, that affects everybody. Not just those who are transsexual, their friends, families and colleagues, but everybody else, too. If gender identity is fluid—if anyone can change their gender identity, decide to live as a man, a woman, or something else entirely, as it suits them—then we have to question every assumption about gender and sex role we've had drummed into us since the moment the doctors handed us to our panting mothers and declared us a boy or a girl. That's an enormous prospect to consider, and some people find it scary.

I'm crossing my fingers that in ten years' time, most of this article is going to look dated. I won't have to waste words explaining to you, for example, that "cissexual" or "cis" simply means "not transsexual," in the way that "heterosexual" means "not homosexual or bisexual."

Changing words changes the world. The word "cis" is both necessary and challenging, because previously, people who weren't transsexual were used to thinking of themselves simply as "normal." If being cis, in Dorothy Parker's terminology, isn't normal but merely common, that changes everyone's understanding of how gender shapes our lives, individually and collectively.

Of course, "cis" covers a lot of bases. A great many cis people experience gender dysphoria to some degree, and a great many women, in particular, experience the socially-imposed category of "womanhood" as oppressive. I'm one of them, and that's why I believe trans rights are so important to feminism—and why it's so dispiriting that some feminists have been actively fighting the inclusion of trans people in anti-patriarchal and LGBT politics. The notion that biology is not destiny has always been at the heart of radical feminism. Trans activists and feminists should be natural allies.

It is increasingly clear that gender is not a binary. Unfortunately, we’re living in society which has organized itself for centuries on the principle that it is, and that everyone who disagrees should be shouted down, beaten up or locked away.

For centuries, it was standard practice was to compel anyone who didn’t conform to the rigid roles set out for their sex—from gay and transgender people to women who were too promiscuous, angry or "mannish"—to do so by force and medical intervention. Generations of activism have fought this type of gender policing, but for the transgender and transsexual community, that sort of bullying is still an everyday reality. Trans people are more likely to be victims of murder and assault than any other minority group—recent studies suggest that 25 percent of trans people have been physically attacked because of their gender status, and hundreds of trans people are murdered every year. Up to 50 percent of transgender teenagers attempt suicide. That of course, is what violence and prejudice are designed to do. They're designed to make people hate and hurt themselves, to frighten them out of being "different," to bully and brutalize any perceived threat to the social order out of existence.

Explaining why this is so significant is hard for me, because I’m about as close as you can get to the trans rights movement without being trans yourself. I’ve been associated with trans activism for years, and while I don’t know what it’s like to be harassed, threatened or abandoned for being transsexual, most of my close friends do. Right now, I’m watching the rest of the world begin to understand the community that has become my home, and it is incredibly exciting—but it’s frightening, too, because the backlash is on.

Even as reports come in that the Southern Baptist Convention, an influential American religious lobby, has made it official policy to oppose trans rights, even as the anti-trans opinion pieces mount up, I’m watching my trans friends and colleagues attacked and harassed online, made to fear for their jobs and their safety. With greater visibility, the stakes are even higher—and sadly, some sections of the left, including feminists like Sheila Jeffreys and Janice Raymond, have allied with social conservatives to attack trans people as deranged.

Time magazine is correct to call this the "new civil rights frontier." The cultural Right has largely lost the argument on homosexuality. Those who argue against gay marriage and gay adoption are increasingly at odds with social norms, and the type of popular pseudo-religious homophobia that was common in the days of Section 28 sounds more and more frothingly bigoted. But gender and sexuality still need to be policed—and if you can no longer call gay people sinful and expect to be taken seriously, someone else has to be the scapegoat, the "other" against which "normality" is defined.

The time is coming when everyone who believes in equality and social justice must decide where they stand on the issue of trans rights—whether that be the right to equal opportunities at work, or simply the right to walk down the street dressed in a way that makes you comfortable. Those are rights that the feminist and gay liberation movements have fought for for generations, and those who have made gains have a responsibility to stand up for (support) those who have yet to be accepted. If we believe in social justice, we must support the trans community as it makes its way proudly into the mainstream.

Extensions – Squo solves, Grimm case not key

Grimm immediate case may not win – but similar trans- legal victories are inevitable.

Lang ‘17

Nico Lang is a journalist and contributor for the L.A. Times, Huffington Post and Salon.com. “Don’t panic over Neil Gorsuch: The courts are the last hope for LGBT rights under Trump” – Salon - Apr 12, 2017 - http://www.salon.com/2017/04/12/do-not-panic-over-neil-gorsuch-the-courts-are-the-last-hope-for-lgbt-rights-under-trump/

Even a major setback in Gavin Grimm’s impending U.S. Supreme Court case offered unexpected hope for the transgender student’s fight to be treated with dignity and respect.

After the Supreme Court, which was set to hear arguments in G.G. v. Gloucester County School Board this term, turned the case back to the lower courts, the Fourth Circuit Court of Appeals declined to hear the 17-year-old’s case on an expedited basis. As Chase Strangio of the American Civil Liberties Union noted in a post for Medium, it would be customary for the federal court to offer a “short, one-line update” on the case to its docket. Instead, Senior Judge Henry Floyd penned a stirring ode to Grimm’s years-long struggle — which will now be decided after the Virginia student graduates.

“G.G.’s case is about much more than bathrooms,” Floyd wrote. “It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity.”

Justice for Gavin Grimm will be delayed, but if the recent direction of the courts on LGBT rights is any indication, it’s coming sooner rather than later. The LGBT community may no longer have a friend in the Oval Office, but justice is on our side.

Grimm case is not key – status quo will solve on Equal Protection Grounds. Evancho case proves the trend.

Dunlap ‘17

Bridgette Dunlap is a lawyer and a scholar whose work centers on public understanding of and access to legal systems. Bridgette is a fellow and adjunct professor at the Leitner Center for International Law and Justice at Fordham Law School. From the article: “Gavin Grimm: What Supreme Court Announcement Means for Trans Rights” – Rolling Stone - March 7, 2017 http://www.rollingstone.com/culture/gavin-grimm-what-supreme-court-announcement-means-w470772

What are Grimm's legal claims?

Grimm's team argued that the school board violated his 14th Amendment right to equal protection of the law, as well as his rights under Title IX, which prohibits sex discrimination in federally funded institutions. Yet while Title IX generally bars classifications on the basis of sex, the 1975 regulations implementing it specifically allow restrooms segregated by gender. The Gloucester school board argued that regulation unambiguously allows it to ban Grimm from the boys' room. The district court denied Grimm an injunction – which would have allowed him to use the bathroom of his choice – and dismissed his Title IX claim.

But the U.S. Court of Appeals for Fourth Circuit reversed that ruling. That decision depended heavily on a guidance letter issued by the Department of Education's Office of Civil Rights in 2015 interpreting Title IX to require that, in the limited circumstances when schools may separate and treat students differently based on sex, they "generally must treat transgender students consistent with their gender identity." The letter was consistent with existing DOE policy, the policies of other government agencies and many court decisions that have held discrimination based on gender is a form of sex discrimination.

The Fourth Circuit determined that the regulation says nothing about how to decide whether a transgender student is a male or female for the purpose of access to sex segregated restrooms. Even if the court were persuaded that "sex" should be read to mean what the school board called "biological gender," that would not answer how the regulation should apply in all instances: "For example, which restroom would a transgender individual who had undergone sex reassignment surgery use?" the court wrote in its decision. "What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident?" The court found that the DOE's interpretation resolved the ambiguity and was entitled to deference.

Why did the Trump Administration decide to rescind the guidance letter?

The school board appealed to the U.S. Supreme Court, which was set to answer, one, the nerdy administrative law question of whether an agency guidance letter is indeed entitled to deference from the courts and two, whether the DOE's interpretation of Title IX in the 2015 letter should be given effect. So the Supreme Court was going to answer questions focused on the 2015 guidance letter, not just the best interpretation of the law.

But the Trump Administration rescinded that guidance letter before the court heard the case. The Trump letter claimed the 2015 guidance lacked sufficient legal analysis and should have gone through the formal rule-making process required for new regulations. It also references the role of states in education policy in a seeming allusion to "states' rights" – which is concerning, given the role that justification has historically played when states claimed freedom to discriminate based on race.

What does that mean for the Supreme Court case?

After Trump's Department of Justice informed the Supreme Court it had revoked the guidance at issue in the case, the parties argued to the court that it should decide the case anyway. But on Monday, the court vacated the Fourth Circuit's decision and remanded the case for further proceedings. It's disappointing given the bathroom litigation all over the country, and the harm that further delay in resolving it will have on transgender students. However, it isn't unusual for the court to decline to hear a case that hasn't been fully considered by the lower courts. And because the lower courts in this case focused on whether the DOE's guidance was binding, they didn't address whether – irrespective of the government's position – Title IX and/or the 14th Amendment bar the school board from forcing Grimm to use a separate and stigmatizing bathroom.

What will this mean for transgender student rights?

The argument that discrimination against transgender people is a form of sex discrimination isn't anywhere near as novel as Jeff Sessions would have you believe, so we can hope the Supreme Court will rule that Title IX prohibits it once this case or a similar one is before it again. However, if the court wasn't ready to rule that all discrimination against transgender people is sex discrimination, it could still rule more narrowly that bathroom bans are. As a friend of the court brief filed by a group of law professors in Grimm's case explains, rules like Gloucester's prevent students from choosing the restroom appropriate to their gender identities as other students are permitted to on the basis of their genitals – and that is sex discrimination.

We can also expect courts to find that the Equal Protection clause protects transgender people from government discrimination, as a federal court in Pennsylvania did recently. What it takes for a law that classifies people based on particular characteristics to pass constitutional muster depends on whether the law targets a "suspect class." Laws that classify people based on race get the highest level of scrutiny and therefore rarely survive review. Sex-based classifications get "intermediate scrutiny," which means they will be struck down unless the government has an "exceedingly persuasive" justification.

The Supreme Court has not yet ruled on whether transgender people are a suspect class, but the Pennsylvania district court did in Evancho et al. v. Pine-Richland School District. There, the court found that laws affecting transgender people as a class meet the test for heightened scrutiny because transgender people have historically been discriminated against, have defining characteristics with little relation to their ability to contribute to society, and are a minority with relatively little political power.

Extensions – Boycotts will solve in the status quo

Boycotts solving anti-trans- laws in the status quo

Wechsler ‘17

Internally quoting Lawrence Glickman, an American studies professor at Cornell University. Pat Wechsler is a veteran journalist who has held senior editing and writing positions at Businessweek, Bloomberg, Newsday and New York magazine. Most recently, she served as a senior vice president at FleishmanHillard, where she created and ran an award-winning online thought-leadership magazine focused on the intersection of communications, marketing and media – “The Boycott” – Business Researcher – May 1^st - http://businessresearcher.sagepub.com/sbr-1863-102636-2779297/20170501/the-boycott

Some of the most effective boycotts have been against states over laws or policies, says Lawrence Glickman, an American studies professor at Cornell University. The National Football League has twice threatened to move the Super Bowl from Arizona: in 1993, when the state did lose the game because it refused to recognize Martin Luther King Jr.’s birthday as a state as well as a national holiday, and again in 2015 when the state legislature passed a measure to allow businesses to refuse to serve gay and transgender customers for religious reasons. Republican Gov. Jan Brewer avoided a second loss of the big game by vetoing the bill.

The NCAA, the organization that governs college athletics, boycotted North Carolina, saying it would not play any championships there, after the state in 2016 enacted a law that forced transgender people to use bathrooms aligned with their birth gender.21 After the state in March repealed the law and replaced it with a less stringent version, the NCAA ended its boycott “reluctantly,” warning that it could change its mind if the new law ends up allowing discrimination.

Boycotts by any sports league and by business in general can be even more potent than consumer boycotts. An Associated Press analysis found that North Carolina’s “bathroom bill” would have cost the state more than $3.76 billion in lost business over the next 12 years.23 “These kinds of boycotts have made legislatures think twice before passing discriminatory laws,” Glickman says.

Boycotts solving now – North Carolina experience proves.

Jenkins ‘17

(et al; Colleen Jenkins - Editor in Charge, U.S. Southeast, Reuters - “Seeking end to boycott, North Carolina rescinds transgender bathroom law” - Reuter’s - Mar 30, 2017 - http://www.reuters.com/article/us-north-carolina-lgbt-idUSKBN1711V4)

The new measure rescinds House Bill 2, the so-called bathroom bill also popularly known as HB 2, which required transgender people to use the bathrooms, changing rooms and showers in state-run buildings that correspond to the sex on their birth certificate rather than their gender identity.

HB 2's enactment a year ago prompted boycotts that cost the state economy hundreds of millions of dollars. Deutsche Bank AG and PayPal Holdings Inc reversed expansion plans in the state. Entertainers such as Bruce Springsteen and Itzhak Perlman canceled concerts.

In basketball-crazed North Carolina, the withdrawal of National Collegiate Athletic Association (NCAA) tournament games and the National Basketball Association All-Star game, which had been awarded to Charlotte, reverberated throughout the state.

Under the new law, transgender people are once again free to use the bathroom of their choice, but they lack any recourse should a person, business or state entity eject or harass them.

Boycotts exert huge leverage - Bathroom bill would cost Texas billions of dollars

Jones ‘17

Mark P. Jones is the James A. Baker III Institute for Public Policy’s political science fellow at Rice University. “Texas’s ‘Bathroom Bill’ Could Mean Economic Disaster” – Fortune – May 25^th - http://fortune.com/2017/05/25/texas-transgender-bathroom-bill-6-vote-passes-legislature/

The Texas legislature is currently debating different bills that would require either all Texans or just public school students to use restrooms that correspond with the gender on their birth certificates. If both houses can agree on a single policy before the clock strikes midnight Sunday, the bill would head to the desk of Republican Gov. Greg Abbott, who intends to sign it into law.

Some Republicans hope that the watered-down House version of the bill—which has opaque language and narrower scope than the Senate’s—will spare Texas the major economic consequences and boycotts North Carolina experienced after passing its own “bathroom bill” last year. GOP legislators are banking on the reaction to their legislation to be like the response to North Carolina’s milder replacement bill, which passed in March and eased political and economic pressure on the state.

But this is wishful thinking, ignoring that North Carolina’s amended legislation demonstrated the state’s movement in what many considered the right direction, especially under a new Democratic governor. Instead, opponents of the Texas legislation view the pending legislation as a slap in the LGBTQ community’s face, and a move in the wrong direction. As a result, Texas is likely to see the cancelation of major sporting events and conventions—and possibly even a major boycott—if it passes its bathroom bill.

Major sports leagues are aware of the fact that holding events in Texas in the future could be construed as condoning discrimination, which could lead other states to be more comfortable adopting similar legislation. To avoid appearing complicit in this, the NCAA could very well cancel the 2018 Final Four tournament in San Antonio, which would be a massive economic blow to Texas. The loss of the Final Four alone would cost San Antonio an estimated $234 million in foregone economic impact and $14 million in lost tax revenue. The bathroom bill could also make it difficult for Texas to secure major sporting events like the Super Bowl and NBA All-Star Game in the future.

Even more consequential than the loss of sporting events would be the notable decrease in convention business in the state’s major destinations of Austin, Dallas-Fort Worth, Houston, and San Antonio—which regularly rank among the country’s top 20 convention destinations—as well as in secondary convention markets like Amarillo, Corpus Christi, El Paso, and Galveston. Conventions and smaller meetings represent a significant economic engine in these locales and help sustain hundreds of thousands of jobs in Texas’s vibrant hospitality industry. They also provide the state and local governments with a significant source of revenue via sales tax receipts, as well as hotel and rental car taxes targeted at visitors.

Most organizations have a diverse membership and strive to not select convention sites that may cause controversy. If the bathroom bill is enacted, many of those tasked with arranging their organization’s conventions will be pressured to cancel existing commitments and to not book future conventions in the Lone Star State.

Extensions – Anti-Discrimination Law Fails/Counter-productive

Bathroom policy alone is woefully insufficient to solve for trans- oppression

Francois ‘17

et al; Aderson B. Francois currently serves as the Director for Institute for Public Representation Civil Rights Law Clinic as well as a Professor of Law at The Georgetown Law School. Prior to joining the Georgetown faculty, Professor Francois directed the Civil Rights Clinic at Howard University School of Law, where he also taught Constitutional Law, Federal Civil Rights, and Supreme Court Jurisprudence. Professor Francois received his J.D. and B.A. from New York University. While the author serves as the Counsel of Record for this Amicus Brief. it is important to note that this Amicus Brief is submitted on behalf of REAGAN GREENBERG, ACHIM HOWARD, ALEXA RODRIGUEZ, JEYMEE SEMITI, AVATARA SMITH-CARRINGTON, SAVANNA WANZER, & SAM WILLIAMSON – who, identity as transgender people and individuals whose gender identity may not fit the rigid categorization of male or female. Amicus Brief - Gloucester County School Board, Petitioner, v. G.G., by his next friend and mother, Deirdre Grimm, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit - BRIEF OF AMICI CURIAE REAGAN GREENBERG, ACHIM HOWARD, ALEXA RODRIGUEZ, JEYMEE SEMITI, AVATARA SMITH-CARRINGTON, SAVANNA WANZER, & SAM WILLIAMSON IN SUPPORT OF RESPONDENT - Available at SCOUTS blog – along with all amicus briefs on this matter- March – modified for language that may offend – http://www.scotusblog.com/wp-content/uploads/2017/03/16-273-resp-amicus-greenberg.pdf

Although it seems obvious that every human being should be treated with dignity, this has not been a reality for the transgender community. Rampant discrimination still exists against the transgender community36 with regards to education, employment, health, family life and public accommodation, and the ability to use the bathroom just touches the surface of the myriad of hardship faced on a daily basis.3' Further, despite the diversity of gender expression that has existed for centuries in the United States, transgender people have historically faced a unique set of challenges in accessing institutions and public accommodations. Shortly after the Civil Rights Movement in 1969, riots at the Stonewall Inn began where the LGBTQ (Lesbian, Gay, Bisexual and Transgender) community "as a group forcefully and vocally assei'ted their rights."38 However, largely left out of the gay rights narrative are the voices of those who spearheaded the riot: transgender women of color such as Marsha P. Johnson and Sylvia Rivera.39 Even historic LGBTQ establishments such as The Stonewall Inn had exclusionary practices regarding transgender individuals, rendering them with no sanctuary to express their gender safely.40

The Law is woefully insufficient to resolve broader anti-trans- discrimination. History goes neg.

Delaye ‘17

et al ;Jaime Huling Delaye - Deputy City Attorney, Complex and Affirmative Litigation San Francisco City Attorney's Office. The author also holds a J.D. from Stanford University Law School Amicus Brief - Gloucester County School Board, Petitioner, v. G.G., by his next friend and mother, Deirdre Grimm, Respondent.On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit - BRIEF FOR THE CITY AND COUNTY OF SAN FRANCISCO, THE CITY OF NEW YORK, AND 29 OTHER JURISDICTIONS AND MAYORS AS AMICI CURIAE IN SUPPORT OF RESPONDENT - Available at SCOUTS blog – along with all amicus briefs on this matter- March - http://www.scotusblog.com/wp-content/uploads/2017/03/16-273_bsac_san_francisco.pdf

As important as they are, laws barring discrimination in public accommodations address only one aspect of the exclusion and harassment that transgender members of our communities face on a daily basis. Unfortunately, many of the findings that motivated San Francisco to adopt its equal-access laws remain true today: "persons who are perceived to be transgender! 1 are considered by some as less than human and therefore assumed to be fair game for objec-tification, violence, and discrimination. Hate violence is perpetrated against transgender I ] persons as much as, if not more than, any other group." S.F. Human Rights Comm'n, Investigation into Discrimination Against Transgendered People at 44. The tens of thousands of transgender and gender-nonconforming individuals who live in our cities are among our most vulnerable residents. Crime statistics show that transgender individuals are disproportionately more likely to fall victim to violence in public facilities such as bathrooms. Transgender people also face staggeringly high rates of poverty, harassment, violence, and poor health, as well as discrimination in housing and employment.

Plan is a trap – Trans- populations will not find liberation through the Aff’s conventional legal approach.

Haddad ‘17

et al - Mark E. Haddad is an attorney with Sidley Austin LLP and served as Counsel of Record for this Amicus Brief. Mark has argued cases in the United States Supreme Court and clerked for Supreme Court Justice William Brennan. The author holds a J.D. from Yale Law School; an M.A. from Oxford University (Rhodes Scholar); and an A.B. from Stanford University. Amicus Brief - Gloucester County School Board, Petitioner, v. G.G., by his next friend and mother, Deirdre Grimm, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit - AMICI CURIAE BRIEF OF SCHOLARS WHO STUDY THE TRANSGENDER POPULATION IN SUPPORT OF RESPONDENT- Available at SCOUTS blog – along with all amicus briefs on this matter- March – modified for language that may offend – http://www.scotusblog.com/wp-content/uploads/2017/03/16-273bsacscholarswhostudythetransgenderpopulation.pdf

As a minority comprising just 0.6% of the total adult population, transgender people lack political power to protect themselves in the political process against a hostile majority. Bd. of Educ., 2016 U.S. Dist. LEXIS 131474, at *59-60 (finding transgender community politically powerless "as a tiny minority of the population, whose members are stigmatized for their gender non-conformity in a variety of settings"); see also Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 989-90 (S.D. Ohio 2013) (citing "small population size" as factor establishing powerlessness of gays and lesbians), rev'd sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev'd sub nom. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Further evidence that transgender people lack political power is reflected by the lack of openly transgender elected or appointed political officials. In Adkins, the court recognized the absence of openly transgender members of the United States Congress or federal judiciary. 143 F. Supp. 3d at 140. A recent study found only three openly transgender elected officials serving nationwide, all at local levels, and that very few transgender people have ever even been candidates.65

Although there are no conclusive answers as to why transgender individuals are underrepresented in elected and appointed office, research suggests that an enormous hurdle is getting transgender candidates - who may have to overcome fears of violence, discrimination, or backlash - to run.66 Transgender individuals also may lack the support needed to get elected if political parties and influential donors do not believe transgender candidates can win elections or are otherwise reluctant to give their support to transgender candidates.

Transgender people's political power is also undermined by laws requiring voters to have a certain form of identification in order to vote. These laws risk disenfranchising many transgender individuals, who face administrative obstacles to obtaining identification that reflects their correct gender identity. According to one recent study, the strictest of these voter-identification laws may have disenfranchised over 34,000 transgender people in eight states in the November 2016 general election.67

Extensions – Target proves no solvency

Extend that the company Target proves the Aff can’t solve for social norms.

They announced a policy similar to the Aff – and experienced an unexpected backlash.

Here’s more proof that the more publicized the Target policy became, the harder it was to change norms. Executives under-estimated how difficult solvency would be.

Safdar ‘17

Khadeeja Safdar holds an M.A. in Business from Columbia University and is a reporter covering the retail industry for The Wall Street Journal. “Target's Pricey Social Lesson --- Retailer's bathroom-policy post sparked backlash, exposing problems it is spending billions to fix” – Wall Street Journal – April 6^th – obtained via Pro-Quest.

In April last year, Target Corp. published a blog post welcoming transgender employees and shoppers to use restrooms and fitting rooms corresponding with their gender identities. "Everyone deserves to feel like they belong," read the post, which turned half of Target's red bullseye logo into a gay-pride rainbow.

Other retailers have similar policies. But for Target, the posting of what was its long-held practice quickly became an expensive and distracting lesson about the perils of combining the web's megaphone with touchy social issues.

Target Chief Executive Brian Cornell hadn't approved the April 19 post, which responded to a move by North Carolina to legislate bathroom use, said people familiar with the episode and its aftermath at Target. He didn't see an email notifying executives of the post, and was surprised to learn about it.

The next day, a conservative Christian nonprofit, American Family Association, called for a boycott of Target, saying the policy "is exactly how sexual predators get access to their victims." Protesters picketed stores from Clovis, Calif., to Mount Dora, Fla.

At Target's Minneapolis headquarters, executives scrambled to control the damage, according to the people familiar with the aftermath, perplexed that they were pilloried for a policy common to retailers. Sales started to decline and have now in every quarter since.

After an internal review, executives determined the negative publicity was the tipping point for some stores, especially in the South, that were already not inviting or competitive enough to give shoppers a reason to come back. Target has now embarked on a multibillion-dollar revamp.

Mr. Cornell, 58 years old, expressed frustration about how the bathroom policy was publicized, and told colleagues he wouldn't have approved the decision to flaunt it, these people said. Target didn't adequately assess the risk, and the ensuing backlash was self-inflicted, he told staff. Now, it was too late to reverse course.

"You can't take it back," said one of these people, adding that Mr. Cornell "felt very stuck."

Many gay-advocacy groups defended Target and dismissed arguments that gender-inclusive policies enable criminals. Some started campaigns urging supporters to shop there. Transgender people "have been going to the bathrooms corresponding to their gender identity for decades," said Jay Wu, a media-relations manager for the National Center for Transgender Equality, "and it's never been an issue."

Mr. Cornell declined to be interviewed for this article. "We strive to make our guests and team members feel accepted, respected and welcomed," Target spokeswoman Dustee Jenkins said. "We know our guests have many different points of view on this topic and we respect that."

A few weeks after the post, Mr. Cornell defended the policy in a television interview, saying Target had a "long history of embracing diversity." He said Target's bathroom policy was similar to rivals'.

The post came in response to the 2016 North Carolina law, which required transgender people to use bathrooms in government buildings according to the sex on their birth certificates. It also disallowed laws that prohibited businesses from asking for proof of sex before people used facilities.

Many national retailers, including Wal-Mart Stores Inc., let people use bathrooms corresponding with their gender identities. "We value the privacy of our associates and customers," said a Wal-Mart spokesman, "and we strive to make accommodations like family bathrooms in some stores."

Most retailers, though, don't publicize their policies. Chains such as Target have customers with perspectives from across the spectrum. In a February online survey by consulting firm Frank N. Magid Associates of 2,500 people, nearly two-thirds of respondents said businesses should stay out of politics.

"Target picked a side and pretty much said to the rest of us that we don't matter," said Mary McCandless, a shopper in Winston-Salem, N.C. "They should have just left it as, 'don't ask, don't show, don't tell.' "

The 56-year-old financial analyst said she quit using her Target credit card and shifted most shopping online. "At least I don't have to worry about using the bathroom on Amazon.com."

Target had publicly waded into social issues before. In 2010, employees and customers protested a $150,000 Target donation to a group that ran ads supporting a Minnesota gubernatorial candidate who opposed gay marriage. Target's then-CEO emailed staff: "Target's support of the GLBT community is unwavering."

The 2016 bathroom backlash has defined the tenure of Mr. Cornell, a former Sam's Club and PepsiCo Inc. executive who was credited with helping Target regain footing after taking over in 2014 in the aftermath of a major credit-card breach.

After North Carolina enacted its legislation, the NCAA pulled tournament games from the state. Companies including Alphabet Inc.'s Google and American Airlines Group Inc. decried the law.

Target store workers began asking their bosses to clarify how to apply company policy, said the people familiar with the episode, who gave an account of the internal chain of events that followed.

Headquarters sent an internal memo to store managers reiterating its official stance, these people said. On April 15, a group Target calls its "risk committee" emailed executives informing them of a plan to post that message publicly and requesting approval to do so. Mr. Cornell, said one of the people, wasn't among the recipients of that email.

At least two of Mr. Cornell's lieutenants approved the post, including Target's chief risk officer, Jackie Rice, and its chief external-engagement officer, Laysha Ward. Both executives declined to comment.

The six paragraphs went live on the company blog, reading in part: "Given the specific questions these legislative proposals raised about how we manage our fitting rooms and restrooms, we felt it was important to state our position."

Several media outlets covered the news. People began clogging Target's Facebook, Twitter and Instagram pages and flooded Mr. Cornell's mailbox with messages of discontent. Shoppers protested by filling carts inside Target stores and abandoning them.

Mr. Cornell, who was out of the office addressing vendors the day the post was published, returned to assess the damage. Retracting the statement wasn't an option, he decided -- that might have worse consequences than standing by it. Left-leaning areas such as Los Angeles are among Target's fastest-growing markets.

Inside the company, executives predicted the backlash would die down. It didn't, and foot traffic in several markets, particularly in the South, declined considerably in the months following the announcement.