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Opening Packet Affirmative HSS 2017

OPENING NOTES
Please read
Thanks to those that helped organize this Starter Pack.
they know who they are. It takes a village. The time and assistance they provide is much appreciated.
And a special shout-out to Mikaela Malsin The new Director of Debate at Georgetown. Great to have you on-
board. We are excited to work with you as part of the Georgetown Debate Seminar.
Glossary

Here are a few terms that come-up in the starter pack:

Agency Deference:
Sometimes courts are asked to resolve a dispute involving a US Federal Agency (i.e. The EPA or the Department of
Justice). Agency deference says that in those disputes, the courts will enter into the process presuming in favor of
the agency.
For this Affirmative, agencies under the Trump administration have in the status quo - implied that the phrase sex
discrimination (which is protected under Federal law) does not clearly include gender non-conformity (in this
instance, trans- students that would prefer to use a restroom that does not correspond to the sex that they were
assigned at birth).
The Affirmative will go on to argue that deferring to the agency is bad and that the Affirmative plan could set a
broader precedent that reduces the presumption in favor of Agency decisions.

Amici or Amicus curiae :


Amici is Latin for "friend of the court".
An amicus curiae brief is sometimes filed by person or group that is not a party to a legal case. However, amici feel
that they have a perspective or argument that bears upon the case. Many of the Aff and Neg cards in this starter pack
are from Amicus curiae briefs.

Anti-discrimination law:
Usually means a law that gives a party the right to sue if they feel discrimination has taken place against them. The
Civil Rights Act, The American with Disabilities Act and Title IX (below) are all examples. It is important to note
that right is enforced in civil courts (meaning that the reward tends to be money via lawsuits as opposed to a party
that goes to prison).

Auer Deference:
This is a legal precedent stemming from a Supreme Court case called Auer vs. Robbins. That ruling helped
establish that Executive agencies should be given deference especially when interpreting their own regulations.
The Affirmative will argue that Auer Deference is bad and should be broken by the plan.

Chevron or Chevron Deference:


Another Court case that created a precedent that favors Agency deference. Thematically Chevron deference is
extremelysimilar to Auer Deference (above). The Aff is saying both Auer Deference and Chevron Deference
are bad and that a new precedent should break such deference. Technically, Auer deference arises when a court
defers to an agencys understanding of their own rule. Chevron deference applies to how an agency understands
the language in statute that externally tasks the agency with a project.

Constitutional vs. Statutory Rulings:


Constitutional Rulings are decisions by courts that say a particular conduct violates the Constitution. Statutory
Rulings declare what a statue (law) means.
In this Affirmative, the Court could rule that - even though the current law does not expressly state it - the phrase
sex discrimination could reasonably be understood to include violations against gender-non-conforming persons
(i.e. it is a form of sex discrimination to not allow a person to use the restroom that corresponds with their gender
identity). This would be a Statutory Ruling.
Alternatively, a court could also say: its not clear what the statue means when it says sex discrimination, but its a
violation of the Constitutional right to Equal Protection to not allow a person to use the restroom that corresponds
with their gender identity. This would be a Constitutional Ruling.

Equal Protection:
The Equal Protection Clause is part of the 14th Amendment to the Constitution and it blocks States from violating
equal protection of the laws".
et al :
Latin for and others it most often arises in the citation when there are multiple authors for a piece of evidence.
This is especially common was cutting evidence from Amicus briefs which often have many, many people signing
onto the brief.

Gloucester County School Board v. Grimm :


Gloucester County is in Virginia. They passed a restrictive bathroom policy that did not allow a trans- student
named Gavin Grimm to use the restroom that corresponded with his gender identity. Grimm sued and eventually
won in a Federal Circuit Court (the 4th Circuit).
The Gloucester County School Board appealed that decision. The US Supreme Court initially agreed to take the
case. One of the major controversies in the case was that the Obama Administration had an Agency that interpreted
the phrase sex discrimination (as it appears in current Federal law) to include gender discrimination. The 4 th
circuit deferred to the Obama Administrations understanding of sex discrimination.
But, before the US Supreme Court heard the case Trump won the election. And, Trump agencies rescinded the
Obama Administrations understanding of sex discrimination. This meant that the case was sent back the 4 th
circuit. In time, they may rule in favor of Gloucester County or in favor of Gavin Grimm.
Because the 4th Circuits original decision was based on Deference to Agencies, that deference currently stands.
And, that means that the courts are currently deferring to the Trump Administrations understanding of sex
discrimination. Thus, in the status quo, Gloucester County School Board is not forced to change its bathroom
policy.

Petitioner vs. Respondent :


The Petitioner is the entity that presented a formal, written application to a court. They in short started it (in
the legal sense of initiating a court case). The Respondent is who the Petitioner is disagreeing with.
In many cards the word Respondent is used and that will usually mean Gavin Grimm. In other cards Petitioner
is used. That will usually be referencing the Gloucester County School Board.

Price Waterhouse v. Hopkins:


A Supreme Court case about sex discrimination. The accounting firm Price Waterhouse denied a promotion to an
employee named Anne Hopkins. Hopkins sued and argued that the firm denied her partnership because she didn't fit
the partners' idea of what a female employee should look like and act like (they said she was not feminine enough in
her mannerism, conduct, etc). Hopkins won.
The case is especially germane because it wasnt about classically-understood sex discrimination. After all,
Hopkins was not denied a promotion because she was a biological female. Instead, she was fired because she did not
fulfill certain gender stereotypes. Because the ruling drew upon the phrase sex discrimination, some people
point to this court case as proof that the legal system already does equate sex discrimination with discrimination
against those that do not fulfill certain gender norms.

Title IX :
Pronounced Title Nine. Title IX of the Education Amendments Act of 1972 is a federal anti-discrimination law
that states: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial
assistance.". It applies to public institutions that receive federal funds.
Title IX is the statute that could be used to make a statutory ruling in favor of Grimm. If so, the understanding of the
Constitution would not change. Rather, Title IX would now be understood (in a legal sense) to include gender. In
short, sex discrimination under Title IX would then understand sex to include more than biological
understandings (at birth).
Two notes on Terminology

The use of initials G.G. vs. the use of Gavin Grimm:

As you will notice, much of the Aff centered on specific Court case one that is commonly referred to as
Gloucester County School Board v. G.G.. A legal custom dictates that initials be used for persons under the age of
18.
I modified references to the initials G.G. (replacing them with Grimm). My rationale was based on reading a
bunch of literature on the subject and is best summed-up by this card :
Dorf 17
Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus Test:
Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice Anthony
Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard as an
undergraduate, he was the American Parliamentary Debate Association national champion. Should Federalism Play a Role in
the Interpretation of Civil Rights Laws ? From the publication: VERDICT March 8th -
https://verdict.justia.com/2017/03/08/federalism-play-role-interpretation-civil-rights-laws

Plaintiff Gavin Grimm argued that the school board's policy discriminates against him on the basis of sex because the term sex, as used in Title
IX, includes gender identity. (Because Grimm is a minor, the case caption refers to him by his initials, but he has made
numerous public appearances under his actual name, and thus using it causes him no harm; indeed, insistence on
using initials could be taken to imply that there is something shameful about being transgender.)

The use of word trans- (with a dash) vs. other possible terminology:

This is a tricky issue and I am open to feedback that I got it wrong. For what its worth, I spent several hours
researching the subject only to discover that there is overwhelming complexity to the issue. If someone has
reservations about the terminology, I would gladly invite their feedback. And, I promise my impulse will be to listen
and not to grow defensive. I am certainly still learning.
I read one anecdote where a big city hospital moved from the binary Male or Female on forms - shifting to an
open identification by those filling out the forms. The hospital reported over 90 distinct answers in less than a year.
My point isnt to cast aspersions on those flexible choices. Rather, that anecdote led me to seek a term that was
itself open-ended. I settled upon the (albeit imperfect) choice of trans- . Some authors defended that the dash
implicitly endorsed non-singularity and openness. Here is an example of one set of authors that directly commented
upon the terminological choice:

Stryker & Currah 8


Susan Stryker is associate professor of gender and women's studies and director of the Institute for LGBT Studies at the
University of Arizona and general coeditor of TSQ: Transgender Studies Quarterly. Paisley Currah teaches political science and
gender studies at Brooklyn College and the Graduate Center of the City University of New York and is general coeditor of TSQ:
Transgender Studies Quarterly. Introduction: Trans-, Trans, or Transgender? Women's Studies Quarterly - Volume 36,
Numbers 3 & 4, Fall/Winter 2008 Project MUSE - Premium Collection

Since the early 1990s, a burgeoning body of scholarly work in the new field of transgender studies has linked insights and analyses drawn from the experience or
study of phenomena that disrupt or unsettle the conventional boundaries of gender with the central disciplinary concerns of contemporary humanities and social
science research. In seeking to promote cutting-edge feminist work that builds on existing transgender- oriented scholarship to articulate new generational and analytical perspectives, we

didnt want to perpetuate a minoritizing or ghettoizing use of transgender to delimit and contain the relationship of
trans- conceptual operations to -gender statuses and practices in a way that rendered them the exclusive
property of a tiny class of marginalized individuals. Precisely because we believe some vital and more generally relevant
critical/political questions are compacted within the theoretical articulations and lived social realities of transgender embodiments,
subjectivities, and communities, we felt that the time was ripe for bursting transgender wide open, and linking the questions of

space and movement that that term implies to other critical crossings of categorical territories. This issue of WSQ centrally address the challenges presented to tra

- ditional feminist scholarship by the transgender sociopolitical movement of the past two decades, but it aims to resist applications of trans as a gender
category that is necessarily distinct from more established categories such as woman or man. Rather than seeing
genders as classes or categories that by definition contain only one kind of thing (which raises unavoidable questions about the masked rules and
we understand genders as potentially porous and permeable spatial territories
normativities that con - stitute qualifications for categorical membership),
(arguable number - ing more than two), each capable of supporting rich and rapidly prolifer - ating ecologies of embodied difference.

Although the literature most often uses the term transgender, I tried to use trans- when I typed a tag or block.
When I highlighted a card I avoided highlighting the phrase transgender and opted for trans instead.
If you have questions about the Starter Pack
Feel free to drop me a line.
I can be reached at:
repkowil@msu.edu
****1AC OPTIONS START HERE
Aff Plan text options
Plans choose one and probably only one

Plan Option #1
The United States federal government should no longer permit schools to block students from using bathrooms that
correspond with their gender identity.

Plan Option #2
The United States federal government should no longer permit public elementary and secondary schools to block
students from using bathrooms that correspond with their gender identity.
-----------------------------------------------------------------------------------------------------------

Plan Option #3:


The United States federal government should substantially increase its regulation of elementary and/or secondary
education in the United States by holding that when students are not allowed to use bathrooms that correspond with
their gender identity it is a violation of Title IX of the Education Amendments of 1972.

Plan Option #4:


The United States federal government should substantially increase its regulation of elementary and/or secondary
education in the United States by holding that when students are not allowed to use bathrooms that correspond with
their gender identity it is a violation of equal protection.
-------------------------------------------------------------------------------------------------------------

Plan Option #5:


The United States federal government should hold that the phrase sex discrimination in Title IX of the of the
Education Amendments of 1972 precludes elementary and/or secondary institutions from blocking student access to
bathrooms that correspond to their gender identity.

Plan Option #6:


The United States federal government should hold that equal protection law precludes elementary and/or secondary
institutions from blocking student access to bathrooms that correspond to their gender identity.
-------------------------------------------------------------------------------------------------------------

Plan Option #7:


In the case Gloucester County School Board v. Grimm, the United States federal government should rule in favor of
Grimm.

Plan Option #8:


In the case Gloucester County School Board v. Grimm, the United States Supreme Court should rule in favor of
Grimm.
-------------------------------------------------------------------------------------------------------------

Plan Option #9:


In the case Gloucester County School Board v. Grimm, the United States federal government should hold that
students cannot be denied access to bathrooms that correspond to their gender identity

Plan Option #10:


In the case Gloucester County School Board v. Grimm, the United States federal government should hold that
blocking student access to bathrooms that correspond with their gender identity is a violation of equal protection.
Plan Option #11:
In the case Gloucester County School Board v. Grimm, the United States federal government should hold that
blocking student access to bathrooms that correspond with their gender identity is a violation of Title IX of the
Education Amendments of 1972.
-------------------------------------------------------------------------------------------------------------
Inherency Contention
Contention One Inherency

Contention One - Inherency

Due to new norms set by the Trump Administration, The Supreme Court remanded the Gloucester County
case. That means students that identify as trans- can be blocked from using bathrooms that match their
gender identity.
Green 17
Emma Green is a Managing Editor for the publication The Atlantic. The author holds a B.A. in Government from Georgetown
University and is a former George F. Baker Scholar - From the article: The Trump Administration May Have Doomed Gavin
Grimm's Case The Atlantic March 6th - #CutWithKirby - https://www.theatlantic.com/politics/archive/2017/03/the-trump-
administration-may-have-doomed-gavin-grimm/518676/

The Supreme Court sent an important case concerning a transgender student in Virginia back down to the Fourth Circuit
Court of Appeals on Monday, in part because of the Trump administrations new position on the issues involved in the case.
In Gloucester County School Board v. G.G., Gavin Grimm sued his school district for the right to use the boys bathroom,
which corresponds with his gender identity. Under the Obama administration, it looked like Grimm might have a strong
chance of success at the countrys highest court, potentially setting a precedent for school districts across the country.
Now, thats looking less likely.
The Trump administration has rolled back Obamas former policies, meaning that transgender students like Grimm may have
to follow policies on bathroom use and other accommodations set by individual school districts.
Grimms case has been winding its way through the court system for nearly two years. In the summer of 2015, a federal
district court dismissed Grimms claims. The judges decision turned on their interpretation of Title IX of the Education
Amendments of 1972, which prohibits sex discrimination in schools that get federal funds. Courts have disagreed about
the meaning of sex discrimination: Some have held that it covers gender identity, meaning that it prohibits
discrimination against transgender people like Grimm. Others, like the district court in Grimms case, have disagreed.
The Obama administration supported the inclusive interpretation, instructing schools to accommodate transgender
students.
Last April, the Fourth Circuit Court of Appeals handed down a decision in Grimms favor : They held that the courts should
defer to the administrations interpretation of Title IX, meaning in effect that Gloucester County should have to let Grimm use the bathroom of
his choice. The Supreme Court stayed the opinion and the school district appealed. In October, the Supreme Court agreed to hear the
case. Arguments were set for late March.
But in February, the Trump administration withdrew the Obama administrations guidance, arguing that there must be due
regard for the primary role of the States and local school districts in establishing educational policy. This was a
clear sign that Trump is backing away from the Obama administrations inclusive interpretation of Title IX, favoring the
previousstatus quo in which individual school districts decide d how to deal with transgender students according to
state and local laws .
While Grimms attorneys encouraged the Supreme Court to move forward with the case despite the Trump administrations new letter, the
justices declined to do so on Monday, remanding the case back to the Fourth Circuit for further consideration in light of the guidance document
issued by the Department of Education and Department of Justice on February 22, 2017.
The Supreme Courts decision not to hear the case at this point is a sign that this issue is likely to remain unresolved ,
at least for the near future. The courts have long been conflicted about the meaning of Title IX and other civil-rights statutes that deal with sex
discrimination, in part because the law is arguably unclear about what sex discrimination means.
Discrimination Advantage Options
Note to students
Option 1.0 is the longer-version of the Discrimination Advantage.
Option 2.0 is the shorter version.
Version 1.0 - Discrimination Advantage

Advantage # __ is Discrimination

Anti-trans- bathroom policies violate Title IXs core educational purpose and function as an impermissible
form of discrimination.
Barbur - 17
et al; Peter Barbur is an attorney that is the Counsel of Record for this Amicus Brief filed to the US Supreme Court. Barbur is an
attorney with the New York Firm Cravath, Swaine, & Moore. Barbur received his B.A. from Dartmouth College and his J.D.,
cum laude, from New York University School of Law. 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 196 MEMBERS OF CONGRESS AS AMICI CURIAE IN SUPPORT OF RESPONDENT -
Available at SCOUTS blog along with all amicus briefs on this matter- March modified for language that may offend -
#CutWithKirby - http://www.scotusblog.com/wp-content/uploads/2017/03/16-273_bsac_196_members_of_congress.pdf

Amici are 40 United States Senators and 156 members of the United States House of Representatives.2 152 are co-sponsors of
the Student Non-Discrimination Act ("SNDA"),3 S. 439, 114th Cong. (2015), which, if enacted, will ensure existing civil rights laws continue to
protect lesbian, gay, bisexual and transgender ("LGBT") children from discrimination and harassment in public schools.
Title IX was enacted to protect vulnerable students from discrimination on the basis of sex and guarantee that these at-risk students
receive equal educational opportunities . Title IX's prohibition on discrimination "on the basis of sex" encompasses discrimination on
the basis of gender identity and sex stereotypes. It therefore does not allow a school to limit bathroom access based solely on
birth-assigned sex or according to sex stereotypes, including the stereotype that a student's gender identity should correspond to birth-
assigned sex.
The lower courts have overwhelmingly adopted this correct interpretation of sex discrimination. However, a minority of lower federal courts
and state and local governments have allowed schools to limit bathroom access based on sex stereotypes. This
impermissibly harms LGBT studentsa particularly vulnerable group of young peopleand undermines the governing
purpose of Title IX .
We firmly believe that Title IX's prohibition on sex discrimination already prohibits discrimination on the basis of gender identity. In fact, the
authors of SNDA designed the legislation to bring clarity and stability to an area of law that has been inconsistently interpreted and enforced. As
members of Congress, we are uniquely positioned to advise the Court on the meaning of draft and pending legislation. We also
have an inherent interest in the proper interpretation of enacted laws and pending legislation, particularly when differing interpretations
alternately vindicate or eliminate the rights of the constituents we represent. Different interpretations of Title IX have led to uncertainty
for public school children and their families and left LGBT children underprotected from discrimination despite applicable federal
law. We urge this Court to uphold the Fourth Circuit's decision and allow G.G. (Grimm) to use the boys' bathroom at his school,
as is already required by federal statutory law and consistent with this Court's own precedent.
The Fourth Circuit's judgment should be affirmed and G.G. should be permitted to use the boys' bathroom at his high school.
First, Title IX was designed to create and protect equal educational opportunities for students discriminated against on the
basis of sex, who make up a particularly vulnerable and marginalized part of any student body. Respondent G.G. is a transgender boy subjected to
discrimination by his school board solely because of his transgender status, and he has suffered psychologically and physically because the school
board denies him access to the boys' bathroom. The school board's new bathroom policy inhibits G.G.'s academic achievement and
social well-being at school. The policy fundamentally undermines Title IX's central purpose , and is thus impermissible under Title
IX.
Indeed, even setting aside the Department of Education's or Department of Justice's now-withdrawn guidance, Title IX's
prohibition on discrimination "on the basis of sex" encompasses discrimination on the basis of gender identity and sex
stereotypes. This statutory interpretation is recognized and supported by this Court's precedent and lower court application of that precedent.
Surely the stereotype that an individual's gender identity ought to correspond to that person's birth-assigned sex is
the most basic form of impermissible sex-based discrimination .
Second, SNDA does nothing to change the proper interpretation of Title IX. This Court should be wary, as it always has been, of relying on
pending or abandoned legislation to interpret enacted statutes. But if this Court does look to SNDA to inform its understanding of Title IX, amici,
as legislators, many of whom have co-sponsored SNDA, are uniquely able to advise the Court of SNDA's meaning and purpose. Despite decades-
old case law interpreting civil rights statutes like Title IX to prohibit sex stereotyping, as well as congressional requests for and the subsequent
adoption of proper agency guidance interpreting Title IX, discrimination against transgender students persists. SNDA's framework was therefore
explicitly designed to operate in parallel with Title IX and reinforce what is already lawthat transgender individuals in public schools are
protected from discrimination.
Petitioner's Policy Limiting Bathroom Access Based on Birth-Assigned Sex Discriminates Against Transgender Students and Violates Title IX.
Title IX is designed to protect students from discrimination on the basis of sex. Transgender students are particularly susceptible to sex
discrimination. By forbidding G.G. from using the boys' bathroom, the Gloucester County school board defies the animating purpose of Title IX
and impermissibly discriminates on the basis of sex.
Petitioner's Policy Contravenes Title IX by Stigmatizing Vulnerable Students and Limiting Their Educational Opportunities.
By prohibiting discrimination "on the basis of sex", Title
IX promotes equal educational opportunities for some of the most vulnerable, at-risk
student body populations. See 20 U.S.C. 1681 (2012). When transgender children are discriminated against by the very institutions charged with
their care, development, and continued scholarship, they are robbed of the educational opportunities guaranteed by Title IX . As amicus
Senator Murray has noted, "[w]hen kids (students) do not feel safe at school, when they are relentlessly bullied because they are different, when they endure
harassment simply because of who they are, we have failed to provide them with the educational opportunities they
deserve." 161 Cong. Rec. S5040 (daily ed. July 14, 2015) (statement of Senator Murray) (speaking in support of an amendment by Senator Franken to add SNDA to
the Every Child Achieves Act).
The Gloucester County school board's policy restricting Respondent G.G.'s bathroom use is thus fundamentally at odds
with Title IX's core goals . G.G. is a transgender boy in his senior year of high school who has been very publicly banned from the boys'
bathroom at school because of his transgender status. Compl. 38, 44. G.G. has identified as a boy for as long as he can remember.4 Compl. ^ 16-
17. When G.G. was in the ninth grade, a psychologist diagnosed G.G. with gender dysphoria and recommended that G.G. begin living "as a boy
in all respects, including with respect to his use of the restroom". Compl. ^ 23. Therefore, just before his sophomore year, G.G. and his family
informed school officials that G.G. was a transgender boy. Compl. 28. G.G. then used the boys' bathroom at his school for seven weeks, without
incident or complaint. Compl. ^ 32.

The impact is trans- dignity. This is a fundamental value that should come before any disad. It also impacts
millions of lives and can be easily solved by the plan.
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 - #CutWithKirby - http://www.scotusblog.com/wp-content/uploads/2017/03/16-273-resp-amicus-greenberg.pdf
INTEREST OF AMICI CURIAE
Amici Curiae are transgender people and individuals whose gender identity may not fit the rigid categorization of
male or female. Amici are predominantly people of color from the greater DC, Maryland, and Virginia area who have
experienced hardship in navigating public spaces and seek to have their (perspectives) voices elevated in front of the
Court. Amici, due to their race, income level, or current stage in life, have not been afforded the privilege of having
their voices (perspectives) heard (advanced) in front of the Court, yet are likely to be the most dramatically impacted by
society's approach to transgender issues. They share deeply personal narratives in this brief that shed light on the lived experience of
transgender people across the country navigating institutions that refuse to affirm their gender identities. Amici represent our loved ones, our
family, our coworkers, and are, literally, our neighbors; they are human, and will continue to exist regardless of the outcome of this case.
Amicis narratives are powerful reminders of how society has failed to affirm transgender identities. They also
demonstrate how simple it can be to make society more inclusive and the large impact that inclusivity has on the
wellbeing of a transgender individual. The day-to-day working of a society structured to support only non-
transgender identities is not just an inconvenience or burden, but an act of violence against transgender people in the
United States.
Amici submit this brief in support of Respondent, in support of upholding the decision of the Fourth Circuit, and in
support of affording all transgender people the basic right to human dignity and access to public accommodations.
Amici's lived experiences are the focal point of this briefs argument because the question of whether the transgender community will
have equal access to places of public accommodation and in public institutions impacts the daily lives, dignity , education, and
general wellbeing of millions of human beings.
A person's gender identity is an indispensable expression of themself and a core component of human dignity. The Court has
frequently explained that people have a fundamental liberty interest in human dignity, and that an individual denied dignity
is deprived of the chance to be who they are. Because society is structured to accommodate non-transgender identities, in ways large
and small, it conveys the message that transgender people do not have a place in public life unless they acquiesce to their gender assigned at birth
and force themselves to live out a gender identity not their own. This refusal to accord transgender people basic human dignity is not
a mere inconvenience but rather an act of psychologicaland often physicalviolence that forces transgender men and women to
turn themselves inside out in order to perform even the most basic of public acts that non-transgender people routinely take for granted: walking
out the door, shopping at a store, using a public bathroom.
Perhaps nowhere is the evidence of lack of accommodation clearer than in educational institutions, which should serve as
supportive learning environments for all students but are currently failing to provide such a space for trans gender students.
Transgender students are more likely than non-transgender students to experience isolation and violence, creating a hostile climate that negatively
impacts their educational and life outcomes. The bathroom policy here is one example of how school policies can exacerbate
the negative climate for transgender students by refusing to affirm a student's gender identity or treat them with
dignity. Amici share their lived experiences of using bathrooms in schools to shed light on the impact that their school climates have had on
them.

Anti-trans- bathroom policies cant be justified on utilitarian grounds it causes profound violence.
Dorf 17
et al; Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus
Test: Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice
Anthony Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard
as an undergraduate, he was the American Parliamentary Debate Association national champion. In the Supreme Court of the
United States: Gloucester County School Board, Petitioner, v. G.G., by his next friend and mother, Deirdre Grimm,Respondent.
Amicus Briefs - On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit March 2, 2017 AMICI
CURIAE IN SUPPORT OF RESPONDENT - - #CutWithKirby - https://www.aclu.org/sites/default/files/field_document/16-
273_bsac_bagenstos_et_al.pdf

Title IX of the Education Amendments of 1972 provides that in a school district receiving federal financial
assistance, "[n]o person in the United States shall, on the basis of sex, ... be subjected to discrimination." 20 U.S.C.
1681(a).
The briefing in this case has largely focused on two questions that sharply divide the parties: (i) whether discrimination on the basis of
transgender status, as suchfor example, treating a transgender boy such as Gavin Grimm (Gavin) differently from, and less favorably than,
other boysis "discrimination . . . on the basis of sex" under 1681(a); and (ii) whether a particular, longstanding Title K regulation, 34 C.F.R.
106.33, authorizes a school district receiving federal funds to exclude transgender students from restrooms designated for use by students of their
gender identity.
This Court need not resolve either of these questions, however, for there is a more straightforward reason why Title IX itself
prohibits the Gloucester County School Board (the Board) from excluding Gavin Grimm from the boys' restrooms at
Gloucester High School: the policy segregates students "on the basis of sex" under any definition of that term, and it subjects
transgender students to "discrimination" because it is not necessary to require those students to comply with such sex-
based segregation in order to advance any important institutional objective.
The Board concedes that its restroom policy classifies and segregates students according to certain "objective physiological characteristics"
(Board Br. 32) or "physical sexual attributes" (id. at 20)namely, the students' external reproductive organs. As all parties agree, that
classification differentiates and separates students "on the basis of sex," regardless of whether other types of classifications (e.g., differential
treatment of transgender students) might also be "sex"-based. And under Title IX, segregation "on the basis of sex" (including classifying
students on the basis of their external reproductive organs) generallybut not invariablysubjects students to a form of prohibited
"discrimination ... on the basis of sex." That is so because Title IX not only prohibits unequal treatment on the basis of sex, but
also presumptively condemns policies that classify and segregate on the basis of sex, even in cases where such separate
treatment might appear, on its face, to be "equal."
To be sure, the assignment of students to particular restrooms on the basis of their reproductive organs is one of the rare contexts in which such
sex-based segregation does not necessarily subject all such students to prohibited "discrimination." Indeed, Title IX generally permits such sex-
based assignment of restrooms with respect to the vast majority of students, even though it is "on the basis of sex," because such a separate-
restroom policy can advance a school's legitimate interests in preserving traditional expectations of privacy respecting the performance of bodily
functions, and in lowering the risk of improper student conduct, without promoting any harmful sex stereotypes and without inflicting any
significant harm on the mine run of students, most of whom are likely to prefer such sex-based separation.
As applied to transgender students, however, such segregation on the basis of sexon the basis of anatomical differences in
external reproductive organsdoes subject them to "discrimination," and is therefore prohibited in schools receiving federal funds,
becausethe profound and uncontroverted harms it inflicts upon trans gender students cannot be justified by the
interests that might otherwise support this particular, traditional practice of sex-based segregation , or by the other institutional
interests on which the Gloucester policy here is expressly predicated. Strikingly, the Board makes no effort at all to demonstrate to this Court that
excluding Gavin from the "male" restrooms is necessary to accomplish the stated reasons for its exclusionary policyi.e., "to provide a safe
learning environment for all students and to protect the privacy of all students" (J.A. 16 (quoting Gloucester policy)). It is no accident that the
Board does not attempt such a showing, because relegating transgender students such as Gavin to stigmatizing single-stall restrooms plainly is not
necessary in order for the Board to realize those goals.
Our framework prioritizes trans- dignity. De-prioritizing this framework is violently unethical and denies
value to life.
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 - #CutWithKirby - http://www.scotusblog.com/wp-content/uploads/2017/03/16-273-resp-amicus-greenberg.pdf

Human dignity is at the core of this case . While this is not a constitutional case, the Court's reliance on human dignity bears repeating as
its decision here so obviously implicates it. Transgender people are people and aredeserving of treatment that upholds basic
values of human dignity. For transgender people, a right to human dignity is the right to be accepted for who they are, to be
valued , respected, and ethically treated , irrespective of their gender identity. For transgender people of all ages, recognizing
that their gender does not match the gender they were assigned at birth is an enormous burden to carry when the institutions they navigate refuse
to affirm their true identity. The ability to self-determine what gender best aligns with their identity, and then be
acknowledged as such, is at the crux of bodily integrity .
The reality of transgender people's lives is a daily reminder that virtually everything in the world is organized in a way that tells them that their
identity is not normal.
I often tell people that my body has been inextricably linked to violence since birth. On its face, this statement appears to be overdramatic. People
begin to dissect and regurgitate a list of my privileges in attempts to ease their guilt, while simultaneously stripping me of my voice. You see, the
violence I speak of is not that which we have been socialized to naturally fear but instead one that is systemically normalized. This is the type of
violence that is often disregarded and negated because conversations around privilege and oppression are uncomfortable and for many, irrelevant.
Avatara Smith-Carrington, Black, Age 24, Baltimore, MD
Upon birth, an infant is designated a gender of either male or female.26 The infant then spends their youth adhering to socially constructed
guidelines on how to present themselves as male or female.27 Their forms of identificationbirth certificate, driver s license, passport, etc.
reflect the gender assigned at birth. In public forums, they face gender-segregated choices, such as joining a male or female soccer league, or
becoming a boy scout or a girl scout, and those decisions are pressured by what is written on a piece of paper handed to thein at birth. This
standardized, presumptive process is a much more oppressive system to navigate for those whose gender identity does not align with the gender
assigned at birth.
Transgender people face a complicated reality in great part because, from time immemorial, clinicians and academics have made transgender
individuals the "objects of their inquiry,"28 using language that at times implicitly but far more often explicitly burdens transgender people with
the mark of being "abnormal." Transgender people live in a society where "people must be willing to be pathologized" in order to have their
gender identity socially and legally affirmed.29 Society today deems transgender people's gender identities, expressions, and sex "less natural and
less legitimate" than those of non-transgender people.30 Transgender people are expected to carry not only medical prognosis, but also a physical
appearance that passes as "male" or "female" in the eyes of non-transgender people.
Even among well-meaning people, non-transgender attributes are "simply taken for granted" and "assumed to be natural or normal."31 Although
the assessment of a person's gender, for the majority of people, tends to be in agreement with that person's gender identity, this is not the lived
experience of transgender people. Most non-transgender people "remain oblivious to the subjective nature of gendering, primarily because they
themselves have not regularly had the experience of being misgendered."32 One need look no further than the amici curiae briefs filed after the
Petitioner filed its brief, such as the one by Safe Spaces for Women, to see evidence of a world in which the only "normal" perspective is that of
non-transgender individuals. When calling specific attention to violence against women by men, counsel for Safe Spaces for Women did not
include transgender women in their efforts to "ensur[e] that the voices of women who have suffered sexual abuse are heeded when policies are
made that may directly affect their physical, emotional, and psychological well-being."33 This is a silencing of transgender identities and voices.
Because of the assumptions created by our non-trans gender frameworks, non-transgender individuals draw the conclusion that
everyone they meet is also non-transgender.34 The mentality of assuming everyone you meet is non-transgender trickles into every aspect of life,
from casual interactions with people on the street, to how coworkers address each other in the workplace. As such the majority of people
are blind (ignorant of) to the struggles of transgender people, and the legitimacy of the struggle transgender people living in the United
States face is obfuscated by that blindness. When people come out as transgender, many healthcare providers,35 employers, and educational
institutions perpetuate violence against them by refusing to affirm their gender identity. When this lack of affirmation takes the form of
exclusion cutting off transgender individuals from work, health services, classes, or other essential structuresthere can be no question that
such exclusion is an act of violence. Even when transgender people are able to access non-affirming institutions, they are left with two options:
(1) perform an identity that is not their own, which strips them of human dignity; or (2) defy the institution and face punishment, which is quite
literally violent. Forcing a transgender individual into performing their gender assigned at birth forces that individual to live in a skin that is not
their own. Theinability of a transgender person to be acknowledged as the gender identity they align with forces
individuals to live in violence.

Anti-trans- stigmas are often learned in schools but they also carry beyond it. That stigma causes hate
crimes and harassment in many settings. These modes of evil must be rejected.
Underwood 17
Barbara D. Underwood is the Solicitor General of New York. Underwood earned an A.B magna cum laude from Radcliffe
College of Harvard University in 1966 and received her law degree from Georgetown University Law Center in 1969.
Underwood clerked for then Associate Justice Thurgood Marshall of the Supreme Court from 1971 to 1972. Underwood was a
law professor for 10 years at the Yale Law School, from 1972 to 1982. She has argued twenty cases before the U.S. Supreme
Court. 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 States of New York,
Washington, California, Connecticut, Delaware, Hawai'i, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New
Mexico, Oregon. Pennsylvania, Rhode Island, Vermont, and Virginia, and The District of Columbia, as Amici Curiae in Support
of Respondent. Available at SCOUTS blog along with all amicus briefs on this matter- March continues to footnote - -
#CutWithKirby - http://www.scotusblog.com/wp-content/uploads/2017/03/16-273-bsac-States-28CORRECTED29.pdf

Amici States New York, Washington, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New
Hampshire, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia, along with the District of Columbia, file this brief in
support of respondent G.G. The amici States strongly support the right of transgender peopleindividuals whose gender
identity differs from their sex assigned at birthto live with dignity, be free from discrimination, and have equal access
to employment , housing , public accommodations, education , and other necessities of life. Discrimination against
transgender people has no legitimate basis, and serves only to injure a group that is feared for being different. It harms transgender
people at work, at school, and in other settings, causing tangible economic, emotional, and health consequences. To prevent such
harms, most of the amici States have adopted policies to protect transgender people against discrimination on the basis of their gender identities.
The amici States' shared experience demonstrates that protecting transgender people from discrimination benefits all members of the public. And
contrary to the petitioner's claims, our shared experience demonstrates that ensuring the civil rights of transgender peopleincluding by allowing
them access to common restrooms consistent with their gender identitycreates no public safety or personal privacy threat and imposes no
meaningful financial burden.
The amici States also share a strong interest in seeing that Title IX is properly applied to protect transgender people from
discrimination in federally funded educational institutions. The policy petitioner seeks to defend here violates Title IX by
denying transgender boys and girls access to the same common restrooms that other boys and girls may use. If entities
receiving Title IX funds are allowed to discriminate in this way , trans gender people will be denied equality in the
schools operated by petitioner and in many other places. The amici States have important interests in ensuring that their transgender
populations, including students, college faculty, and other state employees, do not experience indignity and discrimination when they travel to
other States.
Discrimination on the basis of gender identity causes real and significant harm both to transgender people and to the amici
States. Policies that promote tolerance and inclusion of transgender people can reduce that harm. The experience of the amici
States and of local governments around the country shows that such policies can confer broad social benefits without compromising personal
privacy or requiring significant public expenditures.
Title IX provides a crucia l additional tool for ensuring equality by guaranteeing that transgender people can travel
freely across State lines without fearing discrimination by educational institutions receiving federal funds. And contrary to
the arguments of petitioner and its amici, enforcing Title IX's mandate of gender equality in the circumstances of this case does not violate the
Spending Clause of the Constitution, U.S. Const, art. I, 8, cl. 1. The application of federal equality requirements to particular fact patterns
inevitably raises questions, but the resolution of those questions does not impose new mandates on recipients of federal funds in violation of the
Spending Clause whereas herethe text of the statute itself, as informed by prior judicial decisions, is sufficient to resolve the issue.
Discrimination Against Transgender People Harms the Amici States and Their Residents.
A. Transgender People Are an Important Part of the Population of the Amici States, and of Every State in the Union.
Nearly 1.5 million people in the United States identify as trans gender.1 They serve our communities in a broad array of roles,
including as members of the armed services,2 police officers,3 firefighters,4 doctors,5 scientists,6 engineers,7 professors,8 and attorneys.9
Professional psychologists recognize that transgender people have been part of cultures worldwide "from antiquity until the present day," and that
being transgender is natural and not any form of pathology. FN10
Being transgender does not in itself inhibit a person's ability to contribute to society.
Unfortunately, however, transgender people are often subject to harsh discrimination that limits their ability to realize their
potential. FN11 See infra 7-15. Recognizing the stigma, isolation, and other harms caused by such discriminationand the benefits of
combatting such discriminationStates began providing explicit civil rights protections for transgender people nearly a quarter century ago.
Currently, twenty States and the District of Columbia offer such protections: New York, Washington, California, Colorado, Connecticut,
Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah,
and Vermont.12 At least six more States bar gender-identity discrimination in state employment: Michigan, Kentucky, Virginia, Louisiana,
Montana, and Pennsylvania.13 In addition, at least 225 local governments prohibit discrimination based on gender identity or expression.14 As
that ensure equality for transgender peopleincluding by allowing them
the experience of these jurisdictions shows, policies
access to public facilities consistent with their gender identity promote safe and inclusive communities , workplaces ,
and schools : a benefit that accrues to all.
Transgender People Face Pervasive and Harmful Discrimination, Including by Being Denied Access to Common Restroom Facilities.
1. Hate crimes pose a serious and enduring problem for transgender people and the amici States.
Transgender people have long been subject to murder, assault, and other crimes on account of their gender identity.15
Recent data indicate that such incidents continue to occur and, in fact, are on the rise.16 For example, in just the first few months of 2017,
at least seven transgender people were murdered.17
Such hate crimes harm transgender people in the amici States, physically and psychologically. In doing so, those crimes damage the social fabric
and impair "the States' compelling interest in the maintenance of domestic peace," Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 741
(1983).
2. Discrimination at school also causes enormous harm to transgender students and the States.
Transgender students experience levels of discrimination, violence, and harassment that are much higher than for non-
transgender students.18 In the 2015 National Transgender Discrimination Survey (NTDS), the largest survey of transgender people to date, 77%
of respondents who were known or perceived as transgender in grades K-12 reported experiencing harassment by
students, teachers, or staff.19 More than half of transgender students (54%) reported verbal harassment, and more than a
third reported suffering either a physical attack (24%) or sexual assault (13%).20
The harassment experienced by transgender students leads, for many, to absenteeism and trouble graduating. The 2015 NTDS survey revealed
that nearly twenty percent of transgender students left a K-12 school because the mistreatment was so severe.21 A 2015 school survey showed
that more than 60% of lesbian, gay, bisexual, and transgender (LGBT) students who did not expect to graduate from high school attributed their
academic struggles to a hostile or unsupportive school environment, hostile peers, unsupportive school staff, and gendered school practices.22
The survey found that three-fourths of transgender students felt unsafe at school because of their gender expression.23
In one national survey, 46% of transgender students reported missing at least one day of school in the last month because they felt unsafe or
uncomfortable at school.24 The same survey found that 40% of students who experienced frequent verbal harassment because of their gender
expression did not intend to continue their studies by attending college.25 Another study showed that of transgender students who left school due
to harassment, 48% experienced ness at some point in their lives.26
These outcomes illustrate the harms suffered by transgender students from discrimination and harassment in
educational settings. Such discrimination and harassment also infringes core state interests. As this Court has recognized, "[providing public
schools ranks at the very apex of the function of a State," Wisconsin v. Yoder, 406 U.S. 205, 213 (1972), and education advances more than the
private interests of students: it establishes "the very foundation of good citizenship" by "awakening [children] to cultural values," "preparing
[them] for later professional training," and "helping [them] to adjust normally to [their] environment." Brown v. Bd. ofEduc., 347 U.S. 483, 493
(1954); see also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 30 (1973) (acknowledging "the vital role of education in a free society").
Discrimination in the workplace further harms transgender people and the States.
Discrimination and harassment follow transgender people into the workplace. In 2011, the NTDS found that transgender people report "[n]ear
universal harassment on the job": 90% of those surveyed reported either experiencing "harassment or mistreatment on the job or t[aking] actions
to avoid it."27 Mistreatment includes verbal harassment, inappropriate questions about surgical status, denial of access to restrooms, and physical
and sexual assault.28 "As a consequence of discrimination and abuse," 57% of 2011 NTDS respondents reported delaying their gender transition
and 71% reported hiding their gender identity for some period of time.29
Job-related discrimination has negative consequences for transgender people and the economies of the States and communities where they live.
Harassment can result in transgender workers changing or quitting jobs, experiencing poor job performance, and having excessive absences and
tardiness.30 The unemployment rate for transgender people is three times the national average.31 Nearly half of transgender people report being
underemployed due to gender identity or expression, because they are working in a field or in a position for which they are overqualified.32
Nearly one-third of transgender people live in povertytwice the rate of the population as a whole.33 Home ownership is one-fourth that of the
population.34 Nearly one-third of transgender people have been homeless at some time in their lifeand the rate is nearly twice as high for
transgender women in ethnic or racial minorities.35 Such outcomes not only harm transgender people, but also have tangible consequences for
the economies and fiscs of the amici States.36
4. Discrimination against transgender people poses significant health risks.
In addition to affecting school and work outcomes, gender-identity harassment can have serious health consequences. The high incidence of
suicide attempts by transgender people has been widely reported.37 Transgender people attempt suicide at a rate nine times that of the general
population.38 Forty percent of transgender people have attempted suicide, and the rate is even higher for persons who do not complete high
school (52%) or who belong to certain racial or ethnic minorities (up to 57%).39 Ninety-two percent of those attempting suicide first did so
before the age of 25.40 Seventy-one percent of those attempting suicide have done so more than once.41 Eighty-two percent of all respondents in
the 2015 NTDS had seriously thought about killing themselves at some point in their life.42
There are direct links between the bathroom access of transgender people and transgender health. A recent study analyzing the relationship
between access to college bathrooms and suicide found a correlation: transgender people who had been denied access to bathroom facilities were
approximately 40% more likely to have attempted suicide in their lifetime than transgender people who had not.43
And suicide is not the only health risk. In this case, for example, petitioners' denial of appropriate restroom facilities to G.G. has caused him to
avoid drinking fluids during the school day so that he can avoid needing to use a restroom while at school; as a consequence, he has developed
multiple urinary tract infections. Pet. App. 109a.
Research shows that G.G.'s experience is not unique, and that transgender people are often denied access to appropriate restroom facilities, with
sometimes-serious consequences for their physical health.44 One recent study showed that more than two-thirds (69.5%) of the transgender
students surveyed avoided school restrooms because they felt unsafe or uncomfortable.45 Attempting to avoid going to the bathroom for an entire
school day can cause a variety of health problems, including dehydration, urinary tract infections, kidney infections, and other kidney-related
problems.46 Indeed, in a recent study of transgender people, 54% of respondents reported negative health effects from avoiding public
restrooms.47
In summary, data about the experiences of transgender people paint a stark picture. Transgender people experience significant
discrimination and harassment, with severe negative consequences for themselves, their schools, their employers, and their
communities. The amici States, in turn, are injured in ways this Court aptly summarized a quarter-century ago. "[A] State's interests in the
health and well-being of its residents extend beyond mere physical interests to economic and commercial interests," and to an interest in
"securing residents from the harmful effects of discrimination . This Court has had too much experience with the political, social,
and moral damage of discrimination not to recognize that a State has a substantial interest in assuring its residents that it will
act to protect them from these evils. " Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 609 (1982).

FN10 See Am. Psychol. Ass'n (APA), Answers to Your Questions About Transgender People, Gender Identity and Gender Expression 1 (3rd
ed. 2014) (internet); see also APA, Guidelines for Psychological Practice With Transgender and Gender Nonconforming People, 70 Am. Psychol.
832, 834 (2015) ("Gender as a nonbinary construct has been described and studied for decades. There is historical evidence of recognition,
societal acceptance, and sometimes reverence of diversity in gender identity and gender expression in several different
cultures." (citations omitted)); World Prof 1 Ass'n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and
Gender-Nonconforming People 4 (4th Ver. 2012) (internet) ("[T]he expression of gender characteristics, including identities, that are not
stereotypically associated with one's assigned sex at birth is a common and culturally diverse human phenomenon [that] should not be judged as
inherently pathological or negative." (quotation and alteration marks omitted)).
FN11 See also APA, Answers to Your Questions, supra; APA, Guidelines, supra, 70 Am. Psychol, at 840 (discussing adverse effects of anti-
transgender prejudice within "families, schools, health care, legal systems, workplaces, religious traditions, and communities."); Wynne Parry,
Gender Dysphoria: DSM-5 Reflects Shift In Perspective On Gender Identity, HuffingtonPost (June 4, 2013) (internet) ("[ T]he distress that
accompanies gender dysphoria arises as a result of a culture that stigmatizes people who do not conform to gender
norms[.]").

Federal Law is key. Federal inaction sanctions stigmatizing norms. It also invites roll-back of the local anti-
discrimination efforts that are solving in the status quo.
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 - - #CutWithKirby - http://www.scotusblog.com/wp-
content/uploads/2017/03/16-273_bsac_san_francisco.pdf

D. Petitioner's Conception of Title IX Would Undermine Critical Protections for Transgender People, Who Already Face Marginalization.
Petitioner's understanding of Title IX should be rejected not only because it is ill-founded and inconsistent with precedent, but also
because it is dangerous. Under Petitioner's interpretation, federal antidiscrimination law would sanction and even
invite the stigmatization and unequal treatment of transgender students in the institutions most central to their lives. That view
threatens to undermine decades of work by amici and others to protect transgender people from discrimination. In the
experience of amici, local antidiscrimination laws are necessary to enable transgender people to participate as full members of society,
and are fully compatible with protection of the public. Local laws prohibiting discrimination against transgender individuals are important
means of protecting them from the harm and violence that they have disproportionately experienced - often as a result of
the fact that they do not conform to stereotypes about how men and women are supposed to act and appear.
1. Without policies guaranteeing equal access for transgender people, the simple act of using a public restroom can expose them to harassment,
violence, and even arrest. By way of illustration, in 2005 and 2006 -before New York City adopted its current policy permitting transgender
individuals to use the restroom consistent with their gender identity - a 70-year-old transgender woman was arrested three times for using the
women's restroom in Grand Central Terminal. Metro Briefing, N.Y. Times (Mar. 1, 2006).41 A different transgender woman was stopped by five
guards in a Manhattan shopping mall and "encircled ... in a very menacing and hostile" manner when she attempted to use the women's restroom.
Nicholas Confessore, Transgender Group Reaches Agreement on Restrooms, N.Y. Times (Apr. 2, 2005).42 And yet another transgender woman
was stopped by a security guard when she used a women's restroom while taking the Graduate Record Examination in a Manhattan office
building. Ibid.
The possibility that using a public restroom will lead to an encounter like these has a particularly devastating effect on transgender individuals'
well-being. In 2016 alone, fifty-nine percent of transgender individuals reported avoiding bathrooms at work, at school, and in public places for
fear of confrontation. Nat'l Ctr. for Transgender Equality, Harassment of Transgender People in Bathrooms and Effects of Avoiding Bathrooms
(2016).43 Further, thirty-one percent reported avoiding drinking or eating so they did not have to use the restroom; twenty-four percent had
someone question their presence in a bathroom; nine percent were denied access to a restroom; and eight percent contracted infections due to
restroom avoidance. Ibid. These data substantiate amici s belief that protecting transgender people from discrimination in restrooms and other
sex-segregated facilities remains vital to the well-being of the community. Without confidence that one can safely and timely access a restroom,
full participation in public life is not possible.
2. 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.
The 2015 National Transgender Discrimination Survey reveals that transgender people suffer pervasive mistreatment
and discrimination in every aspect of life, ranging from education and employment to housing and health. Nat'l Ctr.
for Transgender Equality, The Report of the 2015 U.S. Transgender Survey at 2-3 (2016).44 Survey respondents reported high levels of
harassment and violence in schools: a majority reported experiencing some form of mistreatment in grades K-12
because they were transgender, including being verbally harassed (fifty-four percent), physically attacked (twenty-
four percent), and sexually assaulted (thirteen percent). Id. at 9. Seventeen percent of respondents reported experiencing harassment
so severe that they had to leave school altogether. Ibid. In the workplace , thirty percent of respondents with a job reported various
forms of mistreatment, ranging from being fired, denied promotion, or verbally, physically, or sexually assaulted at work. Id. at 11. The
survey's findings also reveal the enormous toll of stigma and discrimination against transgender persons. Forty percent of respondents
have attempted suicide in their lifetime, a rate that is nearly nine times the rate of attempted suicide for the overall
U.S. population (4.6 percent). Id. at 8.45
Despite the dire exclusion, harassment, and discrimination experienced by transgender people, Petitioner asks this Court to
enshrine in Title IX a rigid conception of sex that disregards their very existence and defines individuals exclusively by the sex
assigned to them at birth. Petitioner's understanding of Title IX is unmoored from precedent, unsupported by any evidence, and contrary
to amicis extensive experience providing similar protections to their transgender residents. Petitioner's position would interfere with amici's
efforts to promote inclusion of transgender individuals and would endorse stigma against, and diminished dignity for ,
transgender people across our Nation. Petitioner's arguments thus threaten even more significant harm to an already marginalized group.
Amici urge the Court to reject Petitioner's attempt to entrench discrimination against transgender people in federal law.

A clear ruling from the Supreme Court is key to shaping new norms.
OBrien 17
et al; Alice OBrien is The General Counsel at National Education Association. The author holds a J.D. from The Georgetown
University Law Center and a B.A. from Yale. 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 NATIONAL EDUCATION ASSOCIATION; AMERICAN FEDERATION OF TEACHERS, AFL-
CIO; NATIONAL ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS; AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO; SERVICE EMPLOYEES INTERNATIONAL UNION; AND
SCHOOL SOCIAL WORK ASSOCIATION OF AMERICA AS AMICI CURIAE IN SUPPORT OF RESPONDENT -
Available at SCOUTS blog along with all amicus briefs on this matter- March - #CutWithKirby -
http://www.scotusblog.com/wp-content/uploads/2017/03/16-_273_bsac_national_education_association.pdf

Amici write to urge the Court to rule that Title IX and 34 C.F.R. 106.33 proscribe transgender discrimination and protect
the rights of transgender students to use sex-segregated facilities that correspond to their gender identity.
Amici specifically write to make four points: (1) school-based discrimination against transgender students harms them profoundly, by
stigmatizing them and denying them equal educational opportunities; (2) laws and school policies that respect and recognize transgender students
promote a positive school environment that benefits all students and a discriminatory regime harms and degrades the educational environment for
all students; (3) a clear ruling holding that policies that discriminate against transgender students are illegal would clarify

the legal duties of schools and education employees, but a contrary or no ruling would create difficult
situations for education employees in the real world; and (4) compelling educators to enforce discriminatory policies like Petitioner's harms
educators themselves by forcing them to knowingly harm or witness the harming of their students.
Amici have interviewed public school employees from across the country in preparation for this brief. Among these are high school and middle
school teachers, as well as school counselors and psychologists. Some of the interviewees work in schools that have adopted inclusive
transgender student policies; others work in schools that have not. Collectively, they represent a variety of experiences with transgender
educational policies (and access to sex-segregated facilities in particular) and as such have valuable perspectives to share with the Court about the
needs of transgender students, and, indeed, all students, in our nation's schools. This brief reflects both the specific experiences of these
employees as well as the views of amici's memberships as a whole.
School-based discrimination harms transgender students by stigmatizing them and denying them equal education opportunities.
This stigmatization is harmful and sends the message that transgender students are not entitled to equal respect. Such
policies are defended by unjustifiable fear and disdain of transgender studentsfear and disdain that in turn leads to and magnifies
harassment, abuse, and even violence directed at transgender students. The harassment, violence, and abuse cause transgender students to
quit and miss school, suffer deficient educational outcomes, and even commit suicide.
All this denies equal educational opportunities to transgender students. In particular , denying access to sex-segregated facilities
deprives transgender students the opportunity to fully participate in the school experience ; such denials often result in
transgender students avoiding using the bathroom altogether at school. Amici's members see firsthand how bathroom avoidance in particular puts
the health and safety of transgender students at risk: it leads transgender students to avoid meals and water (to avoid having to use the restroom),
causing fatigue, concentration problems, and various types of urinary infections and other health problems that are caused by failing to use the
restroom.
On the other hand, school policies that respect transgender students promote a positive school climate for all students.
When transgender students are welcomed equally into the school, their educational and personal outcomes improve. And the welcoming and safe
school climate fostered by trans-inclusive policies benefits all students. Safe and supportive schools, as educators know, are good for all students.
A clear decision by the Court holding that Title IX proscribes transgender discrimination will clarify not only the
rights of transgender students, but also the duties of educators toward transgender students. A contrary ruling would
only muddle the duties of educators .
Version 2.0 - Discrimination Advantage

Advantage # __ is Discrimination

Status quo policies block trans- students access to bathroom that match their gender identity. That violates
trans- dignity. This is a fundamental value that should come before any disad. It also impacts millions of lives
and can be easily solved by the plan.
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 - #CutWithKirby - http://www.scotusblog.com/wp-content/uploads/2017/03/16-273-resp-amicus-greenberg.pdf
INTEREST OF AMICI CURIAE
Amici Curiae are transgender people and individuals whose gender identity may not fit the rigid categorization of
male or female. Amici are predominantly people of color from the greater DC, Maryland, and Virginia area who have
experienced hardship in navigating public spaces and seek to have their (perspectives) voices elevated in front of the
Court. Amici, due to their race, income level, or current stage in life, have not been afforded the privilege of having
their voices (perspectives) heard (advanced) in front of the Court, yet are likely to be the most dramatically impacted by
society's approach to transgender issues. They share deeply personal narratives in this brief that shed light on the lived experience of
transgender people across the country navigating institutions that refuse to affirm their gender identities. Amici represent our loved ones, our
family, our coworkers, and are, literally, our neighbors; they are human, and will continue to exist regardless of the outcome of this case.
Amicis narratives are powerful reminders of how society has failed to affirm transgender identities. They also
demonstrate how simple it can be to make society more inclusive and the large impact that inclusivity has on the
wellbeing of a transgender individual. The day-to-day working of a society structured to support only non-
transgender identities is not just an inconvenience or burden, but an act of violence against transgender people in the
United States.
Amici submit this brief in support of Respondent, in support of upholding the decision of the Fourth Circuit, and in
support of affording all transgender people the basic right to human dignity and access to public accommodations.
Amici's lived experiences are the focal point of this briefs argument because the question of whether the transgender community will
have equal access to places of public accommodation and in public institutions impacts the daily lives, dignity , education, and
general wellbeing of millions of human beings.
A person's gender identity is an indispensable expression of themself and a core component of human dignity. The Court has
frequently explained that people have a fundamental liberty interest in human dignity, and that an individual denied dignity
is deprived of the chance to be who they are. Because society is structured to accommodate non-transgender identities, in ways large
and small, it conveys the message that transgender people do not have a place in public life unless they acquiesce to their gender assigned at birth
and force themselves to live out a gender identity not their own. This refusal to accord transgender people basic human dignity is not
a mere inconvenience but rather an act of psychologicaland often physicalviolence that forces transgender men and women to
turn themselves inside out in order to perform even the most basic of public acts that non-transgender people routinely take for granted: walking
out the door, shopping at a store, using a public bathroom.
Perhaps nowhere is the evidence of lack of accommodation clearer than in educational institutions, which should serve as
supportive learning environments for all students but are currently failing to provide such a space for trans gender students.
Transgender students are more likely than non-transgender students to experience isolation and violence, creating a hostile climate that negatively
impacts their educational and life outcomes. The bathroom policy here is one example of how school policies can exacerbate
the negative climate for transgender students by refusing to affirm a student's gender identity or treat them with
dignity. Amici share their lived experiences of using bathrooms in schools to shed light on the impact that their school climates have had on
them.
Our framework prioritizes trans- dignity. De-prioritizing this framework is violently unethical and denies
value to life.
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 - #CutWithKirby - http://www.scotusblog.com/wp-content/uploads/2017/03/16-273-resp-amicus-greenberg.pdf

Human dignity is at the core of this case . While this is not a constitutional case, the Court's reliance on human dignity bears repeating as
its decision here so obviously implicates it. Transgender people are people and aredeserving of treatment that upholds basic
values of human dignity. For transgender people, a right to human dignity is the right to be accepted for who they are, to be
valued , respected, and ethically treated , irrespective of their gender identity. For transgender people of all ages, recognizing
that their gender does not match the gender they were assigned at birth is an enormous burden to carry when the institutions they navigate refuse
to affirm their true identity. The ability to self-determine what gender best aligns with their identity, and then be
acknowledged as such, is at the crux of bodily integrity .
The reality of transgender people's lives is a daily reminder that virtually everything in the world is organized in a way that tells them that their
identity is not normal.
I often tell people that my body has been inextricably linked to violence since birth. On its face, this statement appears to be overdramatic. People
begin to dissect and regurgitate a list of my privileges in attempts to ease their guilt, while simultaneously stripping me of my voice. You see, the
violence I speak of is not that which we have been socialized to naturally fear but instead one that is systemically normalized. This is the type of
violence that is often disregarded and negated because conversations around privilege and oppression are uncomfortable and for many, irrelevant.
Avatara Smith-Carrington, Black, Age 24, Baltimore, MD
Upon birth, an infant is designated a gender of either male or female.26 The infant then spends their youth adhering to socially constructed
guidelines on how to present themselves as male or female.27 Their forms of identificationbirth certificate, driver s license, passport, etc.
reflect the gender assigned at birth. In public forums, they face gender-segregated choices, such as joining a male or female soccer league, or
becoming a boy scout or a girl scout, and those decisions are pressured by what is written on a piece of paper handed to thein at birth. This
standardized, presumptive process is a much more oppressive system to navigate for those whose gender identity does not align with the gender
assigned at birth.
Transgender people face a complicated reality in great part because, from time immemorial, clinicians and academics have made transgender
individuals the "objects of their inquiry,"28 using language that at times implicitly but far more often explicitly burdens transgender people with
the mark of being "abnormal." Transgender people live in a society where "people must be willing to be pathologized" in order to have their
gender identity socially and legally affirmed.29 Society today deems transgender people's gender identities, expressions, and sex "less natural and
less legitimate" than those of non-transgender people.30 Transgender people are expected to carry not only medical prognosis, but also a physical
appearance that passes as "male" or "female" in the eyes of non-transgender people.
Even among well-meaning people, non-transgender attributes are "simply taken for granted" and "assumed to be natural or normal."31 Although
the assessment of a person's gender, for the majority of people, tends to be in agreement with that person's gender identity, this is not the lived
experience of transgender people. Most non-transgender people "remain oblivious to the subjective nature of gendering, primarily because they
themselves have not regularly had the experience of being misgendered."32 One need look no further than the amici curiae briefs filed after the
Petitioner filed its brief, such as the one by Safe Spaces for Women, to see evidence of a world in which the only "normal" perspective is that of
non-transgender individuals. When calling specific attention to violence against women by men, counsel for Safe Spaces for Women did not
include transgender women in their efforts to "ensur[e] that the voices of women who have suffered sexual abuse are heeded when policies are
made that may directly affect their physical, emotional, and psychological well-being."33 This is a silencing of transgender identities and voices.
Because of the assumptions created by our non-trans gender frameworks, non-transgender individuals draw the conclusion that
everyone they meet is also non-transgender.34 The mentality of assuming everyone you meet is non-transgender trickles into every aspect of life,
from casual interactions with people on the street, to how coworkers address each other in the workplace. As such the majority of people
are blind (ignorant of) to the struggles of transgender people, and the legitimacy of the struggle transgender people living in the United
States face is obfuscated by that blindness. When people come out as transgender, many healthcare providers,35 employers, and educational
institutions perpetuate violence against them by refusing to affirm their gender identity. When this lack of affirmation takes the form of
exclusion cutting off transgender individuals from work, health services, classes, or other essential structuresthere can be no question that
such exclusion is an act of violence. Even when transgender people are able to access non-affirming institutions, they are left with two options:
(1) perform an identity that is not their own, which strips them of human dignity; or (2) defy the institution and face punishment, which is quite
literally violent. Forcing a transgender individual into performing their gender assigned at birth forces that individual to live in a skin that is not
their own. Theinability of a transgender person to be acknowledged as the gender identity they align with forces
individuals to live in violence.

A clear ruling from the Supreme Court is key to shaping new norms.
OBrien 17
et al; Alice OBrien is The General Counsel at National Education Association. The author holds a J.D. from The Georgetown
University Law Center and a B.A. from Yale. 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 NATIONAL EDUCATION ASSOCIATION; AMERICAN FEDERATION OF TEACHERS, AFL-
CIO; NATIONAL ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS; AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO; SERVICE EMPLOYEES INTERNATIONAL UNION; AND
SCHOOL SOCIAL WORK ASSOCIATION OF AMERICA AS AMICI CURIAE IN SUPPORT OF RESPONDENT -
Available at SCOUTS blog along with all amicus briefs on this matter- March - #CutWithKirby -
http://www.scotusblog.com/wp-content/uploads/2017/03/16-_273_bsac_national_education_association.pdf

Amici write to urge the Court to rule that Title IX and 34 C.F.R. 106.33 proscribe transgender discrimination and protect
the rights of transgender students to use sex-segregated facilities that correspond to their gender identity.
Amici specifically write to make four points: (1) school-based discrimination against transgender students harms them profoundly, by
stigmatizing them and denying them equal educational opportunities; (2) laws and school policies that respect and recognize transgender students
promote a positive school environment that benefits all students and a discriminatory regime harms and degrades the educational environment for
all students; (3) a clear ruling holding that policies that discriminate against transgender students are illegal would clarify

the legal duties of schools and education employees, but a contrary or no ruling would create difficult
situations for education employees in the real world; and (4) compelling educators to enforce discriminatory policies like Petitioner's harms
educators themselves by forcing them to knowingly harm or witness the harming of their students.
Amici have interviewed public school employees from across the country in preparation for this brief. Among these are high school and middle
school teachers, as well as school counselors and psychologists. Some of the interviewees work in schools that have adopted inclusive
transgender student policies; others work in schools that have not. Collectively, they represent a variety of experiences with transgender
educational policies (and access to sex-segregated facilities in particular) and as such have valuable perspectives to share with the Court about the
needs of transgender students, and, indeed, all students, in our nation's schools. This brief reflects both the specific experiences of these
employees as well as the views of amici's memberships as a whole.
School-based discrimination harms transgender students by stigmatizing them and denying them equal education opportunities.
This stigmatization is harmful and sends the message that transgender students are not entitled to equal respect. Such
policies are defended by unjustifiable fear and disdain of transgender studentsfear and disdain that in turn leads to and magnifies
harassment, abuse, and even violence directed at transgender students. The harassment, violence, and abuse cause transgender students to
quit and miss school, suffer deficient educational outcomes, and even commit suicide.
In particular , denying access to sex-segregated facilities
All this denies equal educational opportunities to transgender students.
deprives transgender students the opportunity to fully participate in the school experience ; such denials often result in
transgender students avoiding using the bathroom altogether at school. Amici's members see firsthand how bathroom avoidance in particular puts
the health and safety of transgender students at risk: it leads transgender students to avoid meals and water (to avoid having to use the restroom),
causing fatigue, concentration problems, and various types of urinary infections and other health problems that are caused by failing to use the
restroom.
On the other hand, school policies that respect transgender students promote a positive school climate for all students.
When transgender students are welcomed equally into the school, their educational and personal outcomes improve. And the welcoming and safe
school climate fostered by trans-inclusive policies benefits all students. Safe and supportive schools, as educators know, are good for all students.
A clear decision by the Court holding that Title IX proscribes transgender discrimination will clarify not only the
rights of transgender students, but also the duties of educators toward transgender students. A contrary ruling would
only muddle the duties of educators .
Excess Flex Advantage - Options
Note to students
Excess Flex really means Excessive State-level Flexibility is bad
The basic thesis of this advantage is as follows:
o In the status quo, the US Supreme Court chose to not take the Gloucester County v. Grimm case.
o This advantage disagrees with the rationale for why the Supreme Court chose to not decide that case.
The rationale according to the Affirmative - had to do with Trump Administration saying that it
would prefer that State Governments should have the flexibility to make decisions in Education
Policy. The Aff says that rationale needs to rejected on the Federal Level.
o That rationale may make sense for some issues in Public Policy or even in some parts of Education
Policy. But the Affirmative argues that it is a dangerous rationale in the context of Civil Rights. State
Flexibility has often not been permitted as a basis for denying avoiding civil rights. Allowing that
rationale for trans- rights might according to the Affirmative - set a dangerous precedent. Some
States might attempt to use flexibility to justify rolling-back other anti-discrimination protections.
Anti-Discrimination law does exists in schools but it also exists in the workplace and other settings.
The States Flexibility precedent could serve to hamper current protections that guard against racism,
sexism, ableism and a host of bigotries.

Version 1.0 of this advantage is the morality version. It argues that it would be morally unacceptable to roll-back
anti-discrimination laws.

Version 2.0 of this advantage has an impact about employment discrimination. It argues that State-level roll-back of
anti-discrimination laws will cause some workplaces to be less-accepting of diversity. That would hamper
innovation and harm the economy.

Version 3.0 of this advantage has the same premise employment discrimination and diversity but concludes with a
different impact to innovation. It argues that innovation is important to retaining US leadership and hegemony.
Version 1.0 - Excess Flex Advantage

Advantage # __ State Flexibility is Bad in this Context.

The Supreme Court punted on the Gloucester County verdict. That sets a bad precedent - greenlighting
excessive State flexibility on questions of social justice.
Dorf 17
Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus Test:
Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice Anthony
Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard as an
undergraduate, he was the American Parliamentary Debate Association national champion. Should Federalism Play a Role in
the Interpretation of Civil Rights Laws ? From the publication: VERDICT March 8th Modified for language that may be
objectionable -- #CutWithKirby - https://verdict.justia.com/2017/03/08/federalism-play-role-interpretation-civil-rights-laws

The Supreme Court was scheduled to hear argument later this month in Gloucester County School Board v. G.G.
(Grimm), which presented the question whether a school district policy forbidding a transgender boy from using the boys restroom in his
public high school violates Title IX, a federal civil rights statute that forbids sex discrimination by schools that receive federal funds. The U.S.
Court of Appeals for the Fourth Circuit held that the schools approach does violate Title IX, but its ruling relied on a policy of the Obama
administrations Department of Educationformalized in a January 2015 letterconcluding that Title IX requires that students be permitted to
use restrooms that correspond to their gender identity. When the justices granted review of the Fourth Circuit ruling, they expected that much of
the case would focus on a question of administrative law: Was deference to the letter policy appropriate?
However, as Professor Joanna Grossman explained last week, the Trump administration disavowed the Obama administration policy,
citing concerns about states rights. Accordingly, on Monday, the Supreme Court sent the case back to the appeals court for
reconsideration in light of the new administrations position.
With the administrative law issue removed from the case, the appeals court will now focus on the meaning of Title IX itself. We can discern what
arguments the parties will likely make based on the arguments they presented to the Supreme Court.
Plaintiff Gavin Grimm argued that the school boards policy discriminates against him on the basis of sex because the term sex, as used in Title
IX, includes gender identity. (Because Grimm is a minor, the case caption refers to him by his initials, but he has made numerous public
appearances under his actual name, and thus using it causes him no harm; indeed, insistence on using initials could be taken to imply that there is
something shameful about being transgender.)
In addition, a Supreme Court amicus brief on behalf of myself and three other law professors argued that the board policy excluding Grimm from
the common restrooms and publicly stigmatizing him as unfit to use the same restrooms as all other boys discriminates against him based on sex
in the most literal way: it excludes him from the male restroom on the basis of his sexual anatomy. A longstanding federal regulation permits
federally funded educational institutions to sex-segregate restroom facilities. Our brief argued that while such sex-segregation may be innocuous
as applied to most (cisgender) students, the school boards policy contravenes Title IX (and is thus invalid) when applied to transgender students
because of the severe harm it inflicts on them without furthering any important institutional interests.
On the other side, the school board has argued that the Congress that enacted Title IX intended sex to refer to what the boards Supreme Court
brief called physiological distinctions between males and females, warning that a ruling for Grimm would upend the universally accepted
practice of separating restrooms, locker rooms, showers, athletic teams, and dormitory rooms based on such distinctions. As readers no doubt
can infer from the fact that I filed a brief in support of Grimm, I find this line of argument unpersuasivenot least because, even in this very
case, it is incoherent: Grimm has received testosterone hormone therapy and undergone chest reconstruction surgery; in nearly all outwardly
observable respects, he presents as physiologically male. Beyond the confusion at the heart of the school boards policy, there is no reason to
think that its parade of horribles will come to pass based on a case that concerns only restrooms.
In any event, readers interested in delving deeper into the arguments back and forth would do well to read the respective Supreme Court briefs
(available here). Or those pressed for time might consult Professor Grossmans excellent analysis in last weeks column.
In the balance of this column, I explore the suggestion put forward by the Trump administration that the entire issue ought to
be decided at the state level. Professor Grossman wrote that this suggestion makes no sense in this context , and, as I shall
explain, I agree. But to understand why that is so, we must first acknowledge that in some other contexts states rights or , as the
case law typically refers to this interest, federalism is relevant to the interpretation of federal statutes.
A Legitimate Role for Federalism in Statutory Interpretation
Federal laws such as
Some federal statutes explicitly contemplate participation of state government officials in carrying out their objectives.
the Clean Air Act and the Clean Water Act as well as federal programs like Medicaid and highway grants are just some
examples of so-called cooperative federalism: The federal government sets the broad policy and provides most or all of the funding;
states that choose to participate have an important role in implementing the policy. States rights are baked into such programs.
Even when a federal law does not require or encourage state participation in its implementation, a court construing unclear provisions of that law
might do so in a way that preserves flexibility for states. Why? Three sorts of reasons can be offered.
First, conditions might vary from place to place . By construing a federal statute to allow state and local governments greater
freedom, courts leave open possibilities that suit such different conditions.
Second, even when the relevant conditions are relatively uniform nationwide, construing federal law to provide states and localities more freedom
encourages a variety of approaches. Such freedom allows each state to serve as what Justice Louis Brandeis famously called a
laboratory for novel social and economic experiments without risk to the rest of the country.
Third, the U.S. Constitution creates a system of dual sovereignty in which the federal government acts on its enumerated powers
while the states act on their reserved powers when doing so does not conflict with either a federal law or the Constitution itself. The Supreme
Court has sometimes narrowly construed federal statutes to avoid attributing to Congress the intention to go all the way to the edge of its powers
or required a clear statement by Congress to do so.
Values Conflict and Federalism
None of the factors thus-far discussed seems to bear on the question whether Title IX permits a school board to bar a
trans gender boy from the boys restroom. After all, when Congress enacts legislation protecting civil rights and civil liberties as it has
done since Reconstructionit necessarily determines that on these matters, national policy prevails over regional variation
and any interest in experimentation.
There is, however, a different sort of argument for states rights that one sometimes encounters and that appears to have animated the Trump
policy. When social norms lag behind legal norms, courts will sometimes hesitate to require that parties comply with the full measure of the legal
norms.
Why would a court trim its sails in that way? As Alexander Hamilton observed in Federalist 78, courts have neither the power of the purse nor of
the sword, and thus must ultimately depend on political actors for the fulfillment of their judgments. Where the judicial view of an issue
outpaces social norms by too wide a margin, a judge may be tempted to hold back, even if in doing so she (they) fails to act
on her (their) best legal judgment.
Examples of this sort of trimming are well known in constitutional law. Most famously, in the case that came to be known as Brown
II, the Supreme Court did not order that Jim Crow states immediately desegregate their schools, partly for fear that doing so
would spark a backlash. Instead, the Court ordered that jurisdictions practicing de jure segregation move to desegregate with all deliberate
speed.
Dissenting from the Supreme Courts decision finding a constitutional right to same-sex marriage, Chief Justice Roberts expressed a
similar worry to the one that animated the Brown II Court. He thought that a right to same-sex marriage would be better
accepted by the People if they chose it democratically than if it were (as he saw the matter) imposed on them by the courts.
Why Federalism Fails in the Gloucester County Case
Yet these two leading examples of the argument for going slowly when there is value conflict ultimately undermine rather than support the states
rights argument in a case like Gloucester County.
For one thing, the notion that courts ought not to get too far ahead of public opinion on matters of civil rights and civil liberties has somewhat
greater force in constitutional cases than in statutory cases like Gloucester County. After all, if a ruling construes a statute in a way that
substantial portions of the country find troubling, Senators and representatives from the relevant states can use their influence in Congress to
enact new legislation.
To be sure, Grimms original complaint included a claim under the Equal Protection Clause of the Fourteenth Amendment, not just Title IX.
Although the Supreme Court did not grant review to decide the constitutional issue, it could arise on remand or in a future case involving a
different plaintiff. And a ruling that a policy like the Gloucester County School Boards restroom policy violates the Constitution would not be
amendable by an act of Congress.
But even with respect to constitutional questions, the dont-go-too-fast approach is deeply flawed. Consider Brown II. Far from using
the breathing space that the Court afforded them to desegregate in an orderly fashion that allowed white southerners to buy into the ruling,
politicians throughout the South engaged in a practice of massive resistance, while their lawyers used the all-deliberate-speed formula as
an excuse for foot dragging. It was not until Congress enacted the 1964 Civil Rights Act, which among other things, put the resources of
the Justice Department behind desegregation efforts, that substantial changes began to occur. By that point, a clearly frustrated Supreme Court
had declared: The time for mere deliberate speed has run out.
Conversely, the Chief Justices fears that a ruling in favor of same-sex marriage would spark a backlash or undermine support for marriage
equality have (thus far) proved unwarranted. According to Pew polls, that support has remained steady since the Courts ruling in the summer of
2015. According to Gallup polls, support for marriage equality has increased.
None of this is to say that judges should simply impose their values on a reluctant society. However, if judges are not philosopher-kings, neither
are they skilled soothsayers who can predict with any certainty when the People will turn against a ruling versus when the People will be guided
by it. Faced with such uncertainty, judges and justices should interpret and apply the law, as best they see it. In the current case, that
should mean ruling in favor of Gavin Grimm and rejecting the Trump administrations states rights argument.

The States Rights arguments in this case risks rolling-back anti-discrimination policies. That spills-over to
a new wave of unacceptable able-ist, heterosexist and racist bigotries.
Goldberg 17
et al; Suzanne Goldberg serves as the Herbert and Doris Wechsler Clinical Professor of Law at Columbia Law School. She also
leads the Law Schools Center for Gender and Sexuality Law and its Sexuality and Gender Law Clinic. Goldberg previously
served on the faculties of Rutgers School of Law-Newark and Fordham Law School. In private practice, Goldberg served as a
senior staff attorney at Lambda Legal, the countrys first legal organization focused on achieving full equality for lesbian and gay
people. During her time at Lambda, she served as co-counsel for the defendants in the landmark U.S. Supreme Court case
Lawrence v. Texas- 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 NAACP
LEGAL DEFENSE AND EDUCATIONAL FUND, INC. AND THE ASIAN AMERICAN LEGAL DEFENSE AND
EDUCATION FUND AS AMICI CURIAE IN SUPPORT OF RESPONDENT - Available at SCOUTS blog along with all
amicus briefs on this matter- March - #CutWithKirby - modified for language that may offend
http://www.scotusblog.com/wp-content/uploads/2017/03/16-273_bsac_naacp_ldf_0.pdf

While this case involves complex issues of agency deference and the proper interpretation of Title IX of the Education
Amendments of 1972, one fundamental question lies at its core: can state actors physically separate and restrict
individuals in public places solely because they are perceived to be different based on unfounded fears and prejudices?
Time and time again, this Court has rightly said that the principle of equality under the law dictates that the answer to this
question is no. Accordingly, this Court has made clear that it is unconstitutional for a state to physically separate people into
different schools or bathrooms by their race, regardless of the quality of the respective facilities; to separate and prohibit people
from enjoying the benefits of marital union because of race or sex; to separate and restrict people from neighborhoods based
on race or disability; and/or to separate and exclude people from the workplace based on race or sex. The broad application of this principle
is central to the enduring strength of liberty and equal protection.
Given the vital importance of equal access to public accommodations and amici's long experience challenging discrimination
against disfavored groups including discrimination justified by claims of "states' rights" amici register three core
points in this brief:
First, there is a lengthy and troubling history of state actors using public restrooms and similar shared spaces to sow division
and instill subordination. Not so long ago, bathrooms nationwide were designated "Colored Only" and "Whites Only." A key lesson of
that painful and ignoble era is that while private-space barriers like racially segregated bathrooms may have seemed to some
like minor inconveniences or insignificant sources of embarrassment, they were in fact a source of profound indignity that
inflicted deep and indelible harm s on individuals of both races, and society at large. This disreputable tradition of state and local
governments enshrining fear or hostility toward a disfavored group of people into laws requiring their physical
separation from others should encourage this Court to view ( consider ) with skepticism the rationales proffered by local
officials here.
Second, state officials often justified physical separation in restroom facilities, swimming pools, and marriage by invoking unfounded fears about
sexual contact and exploitation. As demonstrated below, the purported concerns about sexual predation currently used as a basis for excluding
transgender students from school bathrooms uncomfortably echo those used to justify the separate bathrooms for racial minorities.
Third, certain physical-separation rules that were applied to African Americans were also justified as protectioniste.g., for the good of the
African-American community and/or to protect African-Americans from harm that could arise from others' feelings of discomfort. Eventually,
these kinds of rules were rejected by both the courts and society at large because they conflict with the foundational constitutional principle that
government shall not distinguish between people based on sex, race, or other arbitrary, perceived differences.
The arguments offered to defend the discriminatory singling out of G.G. (Grimm) are painfully similar to those that
this Court long ago deemed to be insufficient to justify discrimination based on race. The proposition that G.G. should
go back to using the "separate restroom," Pet. App. 88a, parrots
the functionalist logic that this Court discarded along with " separate
but equal."
The Trump Administration's recent withdrawal of the guidance on transgender students and its description of
bathroom access as a " states' rights issue"2 only amplifies the disconcerting historical echoes in this case . State and
local officials often invoked "states' rights" as a basis for opposing this Court's decisions and insulating prohibited
discrimination from statutory and constitutional review. Indeed "states' rights" was the frequent refrain of officials who fought against
racial integration, including in bathrooms. Ultimately, however, the claim of "states' rights" has no relevance to this Court's interpretation of a
federal statutein this case Title IXas states are bound by this Court's interpretation of federal law.
We must not repeat the mistakes of the past . These all-too-familiar argumentsabout sexual contact, predation, danger, and
discomfortremain both factually baseless and legally immaterial. Instead,
the weight of precedent and the guarantee of equal
protection inexorably support this Court in recognizing G.G.'s (Grimms) simple and inherent dignity by letting him use the
boys' bathroom with his peers.

In this context, bigotrys not advancing because of the Law but due to a relinquishing of it. A Federal legal
checks needed to counter roll-back from violent local influences.
Anderson 16
Internally quoting Harper Jean Tobin The director of policy for the Washington, D.C.-based National Center for Transgender
Equality, as well as Dan Losen, the director of the Center for Civil Rights Remedies at UCLAs Civil Rights Project. Melinda D.
Anderson is a contributing writer for The Atlantic - From the article: What Is the Future of the Office for Civil Rights? - The
Atlantic - December 2nd Modified for language that may offend - - #CutWithKirby -
https://www.theatlantic.com/education/archive/2016/12/what-is-the-future-of-the-education-office-for-civil-rights/509348/

In the days after the presidential election, news outlets and thousands of educators reported increases in harassment,
bullying, and intimidation of students based on race , ethnicity , religion , and gender identity . While schools and colleges
are on the frontline in confronting these incidents, one mechanism that for more than 35 years has served to curtail such
actions is the Office for Civil Rights ( OCR ) within the U.S. Department of Education .
The federal agencys mission is to ensure equal access to education, and its charged with enforcing laws that prohibit discrimination against
marginalized populationsincluding students of color, religious and gender minorities, and students with disabilities. In recent years OCR has
issued guidance to states and local school districts on their legal obligation to meet the educational needs of transgender students, students with
ADHD, and youth in juvenile justice facilities; the civil-rights unit also tracks how well public schools and districts nationwide measure up on
equity in learning opportunities.
As one president wraps up his term and another takes the reigns, some have speculated on what a Donald Trump administration and Education
Secretary-nominee Betsy DeVos foretell for the civil-rights branch given indications that they plan to downsize the department. With many
unknowns still in play, The Atlantic invited voices in education representing divergent viewpoints to offer their outlook and prognosis on the
Education Departments civil-rights arm. The responses, via email, have been edited for clarity and length.
Melinda D. Anderson: It would seem that thefundamental work of the current OCRwhether focused on sexual harassment
and violence, racial bullying , trans gender discrimination , or other efforts is providing equitable learning
environments. Could this work look (be) different in the new administration and a DeVos-led Department of
Education? If so, how?
Thomas J. Gentzel, the executive director of the National School Boards Association
[Though] the fundamental work of OCR is enforcing civil-rights laws in education, it is the job of school districts to provide equitable learning
environments and, ultimately, to balance all of the competing interests so that all students have safe environments in which to learn. NSBA has
been concerned about executive overreach through the issuance of guidance [and] will continue to urge the incoming administration to exercise
restraint in such an approach to achieving its educational objectives.
Dan Losen, the director of the Center for Civil Rights Remedies at UCLAs Civil Rights Project
A major question is to what extent a Trump [administration] will seek to unleash the forces of the far right and yield OCR
[and the Department of Justice] as hammers for its agenda, versus dramatically diminishing the federal role in education
by substantially cutting OCR's budget and reducing OCR's footprint. The latter entails allowing those [far right] forces to go
unchecked at the state and local levels [where] they clearly have power and influence [its] like the difference
between aggressive and passive aggressive, but [both] mean a big difference in the lives of children. I predict a lot
more bullying , much less sensitivity, and blatant bigotry being tolerated [at schools and campuses.]
Robert Shibley, the executive director of the Foundation for Individual Rights in Education, an advocacy group focused on free speech in
academia, and the author of Twisting Title IX
The fundamental work of OCR is to enforce the anti-discrimination laws over which it has been given jurisdiction by Congress, as well as duly
enacted regulations based on those laws. I suspect that most of OCRs work will remain largely unchanged, but an agencys interpretation of laws
and regulations is bound to change somewhat with a change of political control. Consensus wont be possible on every controversial issue, but
OCRs efforts to fight discrimination are severely hobbled from the start if stakeholders dont even have the sense that they have been given a fair
hearing, as they werent with the April 4, 2011 [letter to colleges, universities, and schools] mandating that institutions use the preponderance of
the evidence standard in sexual-misconduct hearings.
Harper Jean Tobin, the director of policy for the Washington, D.C.-based National Center for Transgender Equality
OCR's mission will not change. How effective it is in carrying out that mission will depend in large part on the resources provided by Congress
and the leadership provided by the president and his appointees. Unfortunately, the president-elect's nominee for secretary of education and other
members of his leadership team have shown an indifference or hostility to civil-rights enforcement in general, and hostility to certain
communities in particular, including LGBT communities.
Anderson: What do you predict as the biggest changeeither in approach or executionas the Department of Educations
civil-rights arm transitions from the Obama era?
Gentzel: Not much is known about the incoming administrations agenda for education [however,] the nations school boards will advocate for
equity and excellence in public education, as well as oppose privatization schemes that drain public dollars from our public schools.
Losen: Assuming DeVos and Senator Jeff Sessions [for attorney general] are confirmed, the biggest change will be that a Trump
administration will ignore blatant civil-rights violations seek changes that will add to segregated schools, and allow
bullying of discrete and insular minority groups of children. From a civil-rights perspective, we can hope that what looks like a
tidal wave peters out before it hits land, but we must prepare for the [ impact ] This will be much, much worse than
the prior Republican administrations who at least gave lip service to basic civil-rights issues. We will see a true crisis in U.S.
civil rights and not just in education.
Shibley: I dont have any special knowledge of how OCR s policies might change [but] I hope and recommend that the new OCR leadership
withdraw the preponderance mandate, replace its unconstitutionally broad definition of sexual harassment with one that is in accord with
Supreme Court case law, and recommit itself to going through proper notice and comment rulemaking procedures so that the interests of all
concerned parties are actually taken into account.
Tobin: That depend s greatly on the direction taken by the Secretary of Education and other appointees, funding from Congress, and
rulings from the courts. There could be both a tremendous slow-down in civil-rights work in general and an abandonment of
students' civil rights in certain areas, or even reversing course and advocating against students' civil rights in certain areas.

Reject this roll-back of anti-discrimination protections. It is an unacceptable moral outcome that cant be
justified by utilitarian ends.
Hasnas 2
John Hasnas is a professor of law at Georgetown University Law Center and teaches courses in ethics and law. Professor Hasnas
is also the excutive director of the Georgetown Institute for the Study of Markets and Ethics. Hasnas is also a professor of
business at Georgetown's McDonough School of Business. Professor Hasnas received a B.A. in Philosophy from Lafayette
College, a J.D. and Ph.D. in Legal Philosophy from Duke University, and an LL.M. in Legal Education from Temple Law
School. From the article: EQUAL OPPORTUNITY, AFFIRMATIVE ACTION, AND THE ANTI-DISCRIMINATION
PRINCIPLE: THE PHILOSOPHICAL BASIS FOR THE LEGAL PROHIBITION OF DISCRIMINATION Fordham Law
Review Volume 71 Modified for potentially objectionable language continues to footnote # 6 - - #CutWithKirby - available
at: http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3857&context=flr

In doing so, I will not be engaging in constitutional or statutory analysis. I possess neither the inclination nor the expertise to comment
usefully on the quality of the courts' legal interpretations of the Equal Protection Clause and Civil Rights Act. I propose, rather, to undertake a purely
normative analysis of each provision. Disregarding the intent of the framers, previous judicial interpretations, the constraints of stare decisis, and the politics of
antidiscrimination law, the question I propose to
answer is how each provision should be interpreted if it is to correspond to the dictates of morality .
The conclusions I reach are that the Civil Rights Act should be understood as an anti-oppression principle and the Equal
Protection Clause should be understood as an anti-differentiation principle.
These terms are defined in Part I of this article, in which I describe the basic nature of the anti-discrimination principle and identify the three
ways that it may be understoodi.e., as an anti-differentiation principle, an anti-oppression principle, or an anti-subordination principle. In Part
II, I trace the history of the judicial understanding of the anti-discrimination principle contained in the Equal Protection Clause and the Civil
Rights Act from 1868 to the present. This will show that the courts originally understood the anti-discrimination principle as an anti-oppression
principle, that over the first half of the twentieth century this understanding gradually evolved into that of an anti-differentiation principle, and
finally, that for the past three and a half decades there has been no dominant judicial understanding of the anti-discrimination principle, but rather
a fluctuating mix of the three possible interpretations. In Part III, I perform the normative analysis that leads to the conclusion that the Civil
Rights Act is properly interpreted as an anti-oppression principle and the Equal Protection Clause as an anti-differentiation principle. In Part IV, I
offer an explanation for the ideological strife that has beset the issue of discrimination during the last generation and draw some implications for
the way both the Civil Rights Act and Equal Protection Clause should be applied. Finally, I apply the results of the analysis to the case of Jacob's
sons and conclude.
The two main provisions of American law that address the problem of discrimination are the Equal Protection Clause of the Fourteenth
Amendment and the Civil Rights Act of 1964. As a constitutional provision, the Equal Protection Clause places restrictions on state action.3 By
enjoining government from denying any person the equal protection of the laws, it prohibits state officials from engaging in actions that
discriminate against any citizen or group of citizens. As a federal statute, the Civil Rights Act places restrictions on the behavior of the individual
members of society and private, non-governmental entities. It prohibits private parties from discriminating against others with regard to
employment, public accommodations, and education.4 Both of these legal provisions are thought to embody a fundamental moral principle
that prohibits discrimination: the anti-discrimination principle.5
The Equal Protection Clause and the Civil Rights Act reflect a profound national commitment in the United States to eradicate
discrimination on the basis of race, color, religion, sex, or national origin . FN6 If there is a moral position that
commands anything close to universal assent in our contemporary political culture, it is the belief that it is wrong to
discriminate against individuals on these bases. Yet, despite this consensus, discrimination remains the most divisive
political issue facing our polity. Whether society should be structured so as to guarantee strict equality of opportunity, i.e., whether we should
have a "color-blind"7 society, or whether affirmative action or benign racial, ethnic, or sexual classifications should be permitted (or perhaps
required) is a perennial source of political strife. For the past half century, the United States has been in the paradoxical situation of having
simultaneously reached a national consensus on the need to incorporate the anti-discrimination principle into the law of the land and an utter lack
of agreement on what it means to give this principle effect. Why is this the case? What precisely is the anti-discrimination principle?
We might begin to answer this question by asking what it means to say that something is a moral principle . Moral
principles place restrictions on the means we may use to achieve our ends . They instruct us that regardless of the
desirability of these ends , there are certain things we may not do in order to attain them. Like the foul lines on a baseball field,
moral principles distinguish fair means from foul by ruling certain ways of pursuing our ends as morally out of bounds .
Thus, moral principles trump efficiency concerns." By forbidding the use of the most efficient means to an end when those means
contravene a moral principle , moral principles impose additional costs on both the efforts of individuals to realize their personal ends and
those of society to realize collective ends. This reflects the fact that moral principles protect values of exceptional moral
significance values whose preservation is important enough to justify reductions in the ability of others to satisfy
their desires.9
By recognizing the anti-discrimination principle to be a moral principle, we are recognizing that, whatever our ends ,
we are morally prohibited from pursuing them by means that involve discrimination. This means that to the extent that the
Equal Protection Clause embodies the anti-discrimination principle, it instructs us that the government may not pursue
legitimate state interests by means that involve discrimination even if this would be the most efficient way to realize those
interests. And to the extent that the Civil Rights Act embodies (underscores) the anti-discrimination principle, it instructs
us that individuals and other private entities may not pursue their legitimate personal or corporate ends by means that involve
discrimination even though it is more costly to do so by non-discriminatory means.
FN6 . This national commitment may extend to other categories such as age or disability as well, although it does not
yet extend to more controversial categories such as sexual orientation. For purposes of simplicity and expediency, I will limit my
discussion to the five categories enumerated in the Civil Rights Act.

Despite pessimism, anti-discrimination Court rulings can succeed in contingent areas. Many examples prove.
Our claim isnt that the Law is a cure-all. Its that bigotry is bad; roll-back would be worse; and that degree
matters.
McKanders 17
Karla McKanders is a Visiting Associate Professor at the Howard University College of Law for the 2016 2017 academic year
where she teaches in the Civil Rights Clinic and Refugee Law. She is a tenured professor at the University of Tennessee, College
of Law 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 AMICUS CURIAE
HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC IN SUPPORT OF RESPONDENTS- Available at
SCOUTS blog along with all amicus briefs on this matter- March - #CutWithKirby - http://www.scotusblog.com/wp-
content/uploads/2017/03/16-273_bsac_196_members_of_congress.pdf
The Court should not allow society's apprehension of change to determine the scope of transgender students' rights.
These students' rights should be determined by the Constitutionnot by society's discomfort with change in the existing social order. The
school board policy at issue here, mandating separate, single-sex restrooms for transgender students, is reminiscent of
the "separate but equal" doctrine that hindered racial equality for school children for over half a century. The policy singles out and labels
transgender students as being different from others, rather than affording all students uniform rights. The policy is based on unfounded fears,
which are inadequate to negate an individual's right to equality. Fear should never undermine the importance of equal protection and fairness
under the law.
Furthermore, and perhaps equally important, the
separate restroom policy will have a disparate impact on Black and Brown
transgender students in lower socioeconomic school districts. In order to execute a policy similar to the one at issue in this case, schools will
be required to build new, single-sex restrooms. Often, Black and Brown students attend schools with fewer financial resources; these schools,
therefore, will likely have difficulty installing truly "equal" facilities. As a result, students in these schools will be subject to
makeshift accommodations that will be both separate and unequal. This unintended consequence will
disproportionately impact many Black and Brown transgender students who already face a variety of challenges due
to inadequate resources.
This case affords the Court an opportunity to uphold the principles of equality enshrined in the Fourteenth Amendment of the Constitution and
Title IX's prohibition against discrimination on the basis of sex in education. In upholding the Fourth Circuit's decision, this Court will continue
its tradition of ensuring equality for all Americans, as it did in Brown.
This case is about more than the right to use a restroom. It is about equality. Equality is a fundamental principle at the foundation
of American society and "at the heart of the Fourteenth Amendment." Loving v. Virginia, 388 U.S. 1, 12 (1967). At its core, this case is "about
the founding ideals that have led this country - haltingly but inexorably - in the direction of fairness, inclusion and equality for all Americans."3
Protecting equality implicates all Americans, especially those who do not fit within existing social norms and the status quo. In protecting G.
Grimm ("G.G."), a transgender boy, this Court will affirm "the dignity and respect we accord our fellow citizens and the laws that we,
as a people and as a country, have enacted to protect them - indeed, to protect all of us."4 G.G. has been singled out and forced to use separate
restrooms in accordance with the Gloucester County Public School's ("GCPS") policy. J.A. 34. G.G. and other transgender students who will be
impacted by this Court's decision only "ask for equal dignity in the eyes of the law." Obergefell u. Hodges, 135 S. Ct. 2584, 2608 (2015).
The Equal Protection Clause and Title IX are not simply aspirational in nature; instead, this Court has made those
principles a reality in the face of societal fear and resistance to change in the social hierarchy and the status quo. The United States has witnessed
discriminatory responses to historic moments of progress towards equality in our nation's history. The separation and discrimination G.G.
(Grimm) has faced is reminiscent of moments in our country's history where immutable differences have been a
marker to justify disparate and discriminatory treatmentthe antithesis of equality. Throughout U.S. history, however, this Court
has been the stalwart in safeguarding individuals who have been the targets of discrimination because of their differences. See
State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) ( allowing in-state tuition for African-American students ); Sipuel v.
Bd. of Regents of Univ. ofOkl., 332 U.S. 631 (1948) ( allowing African Americans to enroll in law school ); Brown v. Bd. of Ed.
ofTopeka, Shawnee Cty., Kan., 347 U.S. 483 (1954) ( Brown I ), sub nom. Brown v. Bd. of Educ. ofTopeka, Kan., 349 U.S. 294 (1955)
( Brown II ) (eliminating discrimination in public schools based on race ); Loving, 388 U.S. 1 ( eliminating discrimination in
marriage based on race ); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (recognizing discrimination in workplace
based on same-sex harassment); Obergefell, 135 S. Ct. 2584 (extending marital rights to same-sex couples).
Accordingly, this Court's decision will have a critical role in affirming the principles of equality enshrined in the Constitution and
promulgated in Title IX to ensure that we continue to make progress towards a more equal society in the face of potential social discomfort and
unfounded fear. The theme of equal rights in American society continues to hold the force of power that will bridge the gap
between the Constitution's promise of equality and the reality of deconstructing a social hierarchy where race, class,
sex, and gender have unjustly been determinative of the dignity accorded to members of our society.
Version 2.0 - Excess Flex Advantage

Advantage # __ State Flexibility is Bad in this Context.

The Supreme Court punted on the Gloucester County verdict. That sets a bad precedent - greenlighting
excessive State flexibility on questions of social justice.
Dorf 17
Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus Test:
Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice Anthony
Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard as an
undergraduate, he was the American Parliamentary Debate Association national champion. Should Federalism Play a Role in
the Interpretation of Civil Rights Laws ? From the publication: VERDICT March 8th Modified for language that may be
objectionable - - #CutWithKirby - https://verdict.justia.com/2017/03/08/federalism-play-role-interpretation-civil-rights-laws

The Supreme Court was scheduled to hear argument later this month in Gloucester County School Board v. G.G.
(Grimm), which presented the question whether a school district policy forbidding a transgender boy from using the boys restroom in his
public high school violates Title IX, a federal civil rights statute that forbids sex discrimination by schools that receive federal funds. The U.S.
Court of Appeals for the Fourth Circuit held that the schools approach does violate Title IX, but its ruling relied on a policy of the Obama
administrations Department of Educationformalized in a January 2015 letterconcluding that Title IX requires that students be permitted to
use restrooms that correspond to their gender identity. When the justices granted review of the Fourth Circuit ruling, they expected that much of
the case would focus on a question of administrative law: Was deference to the letter policy appropriate?
However, as Professor Joanna Grossman explained last week, the Trump administration disavowed the Obama administration policy,
citing concerns about states rights. Accordingly, on Monday, the Supreme Court sent the case back to the appeals court for
reconsideration in light of the new administrations position.
With the administrative law issue removed from the case, the appeals court will now focus on the meaning of Title IX itself. We can discern what
arguments the parties will likely make based on the arguments they presented to the Supreme Court.
Plaintiff Gavin Grimm argued that the school boards policy discriminates against him on the basis of sex because the term sex, as used in Title
IX, includes gender identity. (Because Grimm is a minor, the case caption refers to him by his initials, but he has made numerous public
appearances under his actual name, and thus using it causes him no harm; indeed, insistence on using initials could be taken to imply that there is
something shameful about being transgender.)
In addition, a Supreme Court amicus brief on behalf of myself and three other law professors argued that the board policy excluding Grimm from
the common restrooms and publicly stigmatizing him as unfit to use the same restrooms as all other boys discriminates against him based on sex
in the most literal way: it excludes him from the male restroom on the basis of his sexual anatomy. A longstanding federal regulation permits
federally funded educational institutions to sex-segregate restroom facilities. Our brief argued that while such sex-segregation may be innocuous
as applied to most (cisgender) students, the school boards policy contravenes Title IX (and is thus invalid) when applied to transgender students
because of the severe harm it inflicts on them without furthering any important institutional interests.
On the other side, the school board has argued that the Congress that enacted Title IX intended sex to refer to what the boards Supreme Court
brief called physiological distinctions between males and females, warning that a ruling for Grimm would upend the universally accepted
practice of separating restrooms, locker rooms, showers, athletic teams, and dormitory rooms based on such distinctions. As readers no doubt
can infer from the fact that I filed a brief in support of Grimm, I find this line of argument unpersuasivenot least because, even in this very
case, it is incoherent: Grimm has received testosterone hormone therapy and undergone chest reconstruction surgery; in nearly all outwardly
observable respects, he presents as physiologically male. Beyond the confusion at the heart of the school boards policy, there is no reason to
think that its parade of horribles will come to pass based on a case that concerns only restrooms.
In any event, readers interested in delving deeper into the arguments back and forth would do well to read the respective Supreme Court briefs
(available here). Or those pressed for time might consult Professor Grossmans excellent analysis in last weeks column.
In the balance of this column, I explore the suggestion put forward by the Trump administration that the entire issue ought to
be decided at the state level. Professor Grossman wrote that this suggestion makes no sense in this context , and, as I shall
explain, I agree. But to understand why that is so, we must first acknowledge that in some other contexts states rights or , as the
case law typically refers to this interest, federalism is relevant to the interpretation of federal statutes.
A Legitimate Role for Federalism in Statutory Interpretation
Federal laws such as
Some federal statutes explicitly contemplate participation of state government officials in carrying out their objectives.
the Clean Air Act and the Clean Water Act as well as federal programs like Medicaid and highway grants are just some
examples of so-called cooperative federalism: The federal government sets the broad policy and provides most or all of the funding;
states that choose to participate have an important role in implementing the policy. States rights are baked into such programs.
Even when a federal law does not require or encourage state participation in its implementation, a court construing unclear provisions of that law
might do so in a way that preserves flexibility for states. Why? Three sorts of reasons can be offered.
First, conditions might vary from place to place . By construing a federal statute to allow state and local governments greater
freedom, courts leave open possibilities that suit such different conditions.
Second, even when the relevant conditions are relatively uniform nationwide, construing federal law to provide states and localities more freedom
encourages a variety of approaches. Such freedom allows each state to serve as what Justice Louis Brandeis famously called a
laboratory for novel social and economic experiments without risk to the rest of the country.
Third, the U.S. Constitution creates a system of dual sovereignty in which the federal government acts on its enumerated powers
while the states act on their reserved powers when doing so does not conflict with either a federal law or the Constitution itself. The Supreme
Court has sometimes narrowly construed federal statutes to avoid attributing to Congress the intention to go all the way to the edge of its powers
or required a clear statement by Congress to do so.
Values Conflict and Federalism
None of the factors thus-far discussed seems to bear on the question whether Title IX permits a school board to bar a
trans gender boy from the boys restroom. After all, when Congress enacts legislation protecting civil rights and civil liberties as it has
done since Reconstructionit necessarily determines that on these matters, national policy prevails over regional variation
and any interest in experimentation.
There is, however, a different sort of argument for states rights that one sometimes encounters and that appears to have animated the Trump
policy. When social norms lag behind legal norms, courts will sometimes hesitate to require that parties comply with the full measure of the legal
norms.
Why would a court trim its sails in that way? As Alexander Hamilton observed in Federalist 78, courts have neither the power of the purse nor of
the sword, and thus must ultimately depend on political actors for the fulfillment of their judgments. Where the judicial view of an issue
outpaces social norms by too wide a margin, a judge may be tempted to hold back, even if in doing so she (they) fails to act
on her (their) best legal judgment.
Examples of this sort of trimming are well known in constitutional law. Most famously, in the case that came to be known as Brown
II, the Supreme Court did not order that Jim Crow states immediately desegregate their schools, partly for fear that doing so
would spark a backlash. Instead, the Court ordered that jurisdictions practicing de jure segregation move to desegregate with all deliberate
speed.
Dissenting from the Supreme Courts decision finding a constitutional right to same-sex marriage, Chief Justice Roberts expressed a
similar worry to the one that animated the Brown II Court. He thought that a right to same-sex marriage would be better
accepted by the People if they chose it democratically than if it were (as he saw the matter) imposed on them by the courts.
Why Federalism Fails in the Gloucester County Case
Yet these two leading examples of the argument for going slowly when there is value conflict ultimately undermine rather than support the states
rights argument in a case like Gloucester County.
For one thing, the notion that courts ought not to get too far ahead of public opinion on matters of civil rights and civil liberties has somewhat
greater force in constitutional cases than in statutory cases like Gloucester County. After all, if a ruling construes a statute in a way that
substantial portions of the country find troubling, Senators and representatives from the relevant states can use their influence in Congress to
enact new legislation.
To be sure, Grimms original complaint included a claim under the Equal Protection Clause of the Fourteenth Amendment, not just Title IX.
Although the Supreme Court did not grant review to decide the constitutional issue, it could arise on remand or in a future case involving a
different plaintiff. And a ruling that a policy like the Gloucester County School Boards restroom policy violates the Constitution would not be
amendable by an act of Congress.
But even with respect to constitutional questions, the dont-go-too-fast approach is deeply flawed. Consider Brown II. Far from using
the breathing space that the Court afforded them to desegregate in an orderly fashion that allowed white southerners to buy into the ruling,
politicians throughout the South engaged in a practice of massive resistance, while their lawyers used the all-deliberate-speed formula as
an excuse for foot dragging. It was not until Congress enacted the 1964 Civil Rights Act, which among other things, put the resources of
the Justice Department behind desegregation efforts, that substantial changes began to occur. By that point, a clearly frustrated Supreme Court
had declared: The time for mere deliberate speed has run out.
Conversely, the Chief Justices fears that a ruling in favor of same-sex marriage would spark a backlash or undermine support for marriage
equality have (thus far) proved unwarranted. According to Pew polls, that support has remained steady since the Courts ruling in the summer of
2015. According to Gallup polls, support for marriage equality has increased.
None of this is to say that judges should simply impose their values on a reluctant society. However, if judges are not philosopher-kings, neither
are they skilled soothsayers who can predict with any certainty when the People will turn against a ruling versus when the People will be guided
by it. Faced with such uncertainty, judges and justices should interpret and apply the law, as best they see it. In the current case, that
should mean ruling in favor of Gavin Grimm and rejecting the Trump administrations states rights argument.

The States Rights arguments in this case risk a broader roll-back anti-discrimination policies.
Goldberg 17
et al; Suzanne Goldberg serves as the Herbert and Doris Wechsler Clinical Professor of Law at Columbia Law School. She also
leads the Law Schools Center for Gender and Sexuality Law and its Sexuality and Gender Law Clinic. Goldberg previously
served on the faculties of Rutgers School of Law-Newark and Fordham Law School. In private practice, Goldberg served as a
senior staff attorney at Lambda Legal, the countrys first legal organization focused on achieving full equality for lesbian and gay
people. During her time at Lambda, she served as co-counsel for the defendants in the landmark U.S. Supreme Court case
Lawrence v. Texas- 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 NAACP
LEGAL DEFENSE AND EDUCATIONAL FUND, INC. AND THE ASIAN AMERICAN LEGAL DEFENSE AND
EDUCATION FUND AS AMICI CURIAE IN SUPPORT OF RESPONDENT - Available at SCOUTS blog along with all
amicus briefs on this matter- March modified for language that may offend - #CutWithKirby -
http://www.scotusblog.com/wp-content/uploads/2017/03/16-273_bsac_naacp_ldf_0.pdf

While this case involves complex issues of agency deference and the proper interpretation of Title IX of the Education
Amendments of 1972, one fundamental question lies at its core: can state actors physically separate and restrict
individuals in public places solely because they are perceived to be different based on unfounded fears and prejudices?
Time and time again, this Court has rightly said that the principle of equality under the law dictates that the answer to this question is
no. Accordingly, this Court has made clear that it is unconstitutional for a state to physically separate people into different schools or bathrooms by their race,
regardless of the quality of the respective facilities; to separate and prohibit people from enjoying the benefits of marital union because of race or sex; to separate and
restrict people from neighborhoods based on race or disability; and/or to separate and exclude people from the workplace based on race or sex. The broad application
of this principle is central to the enduring strength of liberty and equal protection.
Given the vital importance of equal access to public accommodations and amici's long experience challenging discrimination
against disfavored groups including discrimination justified by claims of "states' rights" amici register three core
points in this brief:
First, there is a lengthy and troubling history of state actors using public restrooms and similar shared spaces to sow division and instill
subordination. Not so long ago, bathrooms nationwide were designated "Colored Only" and "Whites Only." A key lesson of that painful and
ignoble era is that while private-space barriers like racially segregated bathrooms may have seemed to some like minor inconveniences or
insignificant sources of embarrassment, they were in fact a source of profound indignity that inflicted deep and indelible harms on individuals of
both races, and society at large. This disreputable tradition of state and local governments enshrining fear or hostility toward a
disfavored group of people into laws requiring their physical separation from others should encourage this Court to view
( consider ) with skepticism the rationales proffered by local officials here.
Second, state officials often justified physical separation in restroom facilities, swimming pools, and marriage by invoking unfounded fears about
sexual contact and exploitation. As demonstrated below, the purported concerns about sexual predation currently used as a basis for excluding
transgender students from school bathrooms uncomfortably echo those used to justify the separate bathrooms for racial minorities.
Third, certain physical-separation rules that were applied to African Americans were also justified as protectioniste.g., for the good of the
African-American community and/or to protect African-Americans from harm that could arise from others' feelings of discomfort. Eventually,
these kinds of rules were rejected by both the courts and society at large because they conflict with the foundational constitutional principle that
government shall not distinguish between people based on sex, race, or other arbitrary, perceived differences.
The arguments offered to defend the discriminatory singling out of G.G. (Grimm) are painfully similar to those that
this Court long ago deemed to be insufficient to justify discrimination based on race. The proposition that G.G. should
go back to using the "separate restroom," Pet. App. 88a, parrots
the functionalist logic that this Court discarded along with " separate
but equal."
The Trump Administration's recent withdrawal of the guidance on transgender students and its description of
bathroom access as a " states' rights issue"2 only amplifies the disconcerting historical echoes in this case . State and
local officials often invoked "states' rights" as a basis for opposing this Court's decisions and insulating prohibited
discrimination from statutory and constitutional review. Indeed "states' rights" was the frequent refrain of officials who fought against
racial integration, including in bathrooms. Ultimately, however, the claim of "states' rights" has no relevance to this Court's interpretation of a
federal statutein this case Title IXas states are bound by this Court's interpretation of federal law.
We must not repeat the mistakes of the past . These all-too-familiar argumentsabout sexual contact, predation, danger, and
discomfortremain both factually baseless and legally immaterial. Instead,
the weight of precedent and the guarantee of equal
protection inexorably support this Court in recognizing G.G.'s (Grimms) simple and inherent dignity by letting him use the
boys' bathroom with his peers.

A Federal Court ruling is necessary to counter State & Local efforts to roll-back anti-discrimination laws.
Absent that check, efforts will spill beyond education policy.
Anderson 16
Internally quoting Harper Jean Tobin The director of policy for the Washington, D.C.-based National Center for Transgender
Equality, as well as Dan Losen, the director of the Center for Civil Rights Remedies at UCLAs Civil Rights Project. Melinda D.
Anderson is a contributing writer for The Atlantic - From the article: What Is the Future of the Office for Civil Rights? - The
Atlantic - December 2nd Modified for language that may offend - - #CutWithKirby -
https://www.theatlantic.com/education/archive/2016/12/what-is-the-future-of-the-education-office-for-civil-rights/509348/

In the days after


the presidential election, news outlets and thousands of educators reported increases in harassment,
bullying, and intimidation of students based on race , ethnicity , religion , and gender identity . While schools and colleges
are on the frontline in confronting these incidents, one
mechanism that for more than 35 years has served to curtail such
actions is the Office for Civil Rights ( OCR ) within the U.S. Department of Education .
The federal agencys mission is to ensure equal access to education, and its charged with enforcing laws that prohibit discrimination against
marginalized populationsincluding students of color, religious and gender minorities, and students with disabilities. In recent years OCR has
issued guidance to states and local school districts on their legal obligation to meet the educational needs of transgender students, students with
ADHD, and youth in juvenile justice facilities; the civil-rights unit also tracks how well public schools and districts nationwide measure up on
equity in learning opportunities.
As one president wraps up his term and another takes the reigns, some have speculated on what a Donald Trump administration and Education
Secretary-nominee Betsy DeVos foretell for the civil-rights branch given indications that they plan to downsize the department. With many
unknowns still in play, The Atlantic invited voices in education representing divergent viewpoints to offer their outlook and prognosis on the
Education Departments civil-rights arm. The responses, via email, have been edited for clarity and length.
Melinda D. Anderson: It would seem that the fundamental work of the current OCRwhether focused on sexual harassment
racial bullying , trans gender discrimination , or other efforts is providing equitable learning
and violence,
environments. Could this work look (be) different in the new administration and a DeVos-led Department of
Education? If so, how?
Thomas J. Gentzel, the executive director of the National School Boards Association
[Though] the fundamental work of OCR is enforcing civil-rights laws in education, it is the job of school districts to provide equitable learning
environments and, ultimately, to balance all of the competing interests so that all students have safe environments in which to learn. NSBA has
been concerned about executive overreach through the issuance of guidance [and] will continue to urge the incoming administration to exercise
restraint in such an approach to achieving its educational objectives.
Dan Losen, the director of the Center for Civil Rights Remedies at UCLAs Civil Rights Project
A major question is to what extent a Trump [administration] will seek to unleash the forces of the far right and yield OCR
[and the Department of Justice] as hammers for its agenda, versus dramatically diminishing the federal role in education
by substantially cutting OCR's budget and reducing OCR's footprint. The latter entails allowing those [far right] forces to go
unchecked at the state and local levels [where] they clearly have power and influence [its] like the difference
between aggressive and passive aggressive, but [both] mean a big difference in the lives of children. I predict a lot
more bullying , much less sensitivity, and blatant bigotry being tolerated [at schools and campuses.]
Robert Shibley, the executive director of the Foundation for Individual Rights in Education, an advocacy group focused on free speech in
academia, and the author of Twisting Title IX
The fundamental work of OCR is to enforce the anti-discrimination laws over which it has been given jurisdiction by Congress, as well as duly
enacted regulations based on those laws. I suspect that most of OCRs work will remain largely unchanged, but an agencys interpretation of laws
and regulations is bound to change somewhat with a change of political control. Consensus wont be possible on every controversial issue, but
OCRs efforts to fight discrimination are severely hobbled from the start if stakeholders dont even have the sense that they have been given a fair
hearing, as they werent with the April 4, 2011 [letter to colleges, universities, and schools] mandating that institutions use the preponderance of
the evidence standard in sexual-misconduct hearings.
Harper Jean Tobin, the director of policy for the Washington, D.C.-based National Center for Transgender Equality
OCR's mission will not change. How effective it is in carrying out that mission will depend in large part on the resources provided by Congress
and the leadership provided by the president and his appointees. Unfortunately, the president-elect's nominee for secretary of education and other
members of his leadership team have shown an indifference or hostility to civil-rights enforcement in general, and hostility to certain
communities in particular, including LGBT communities.
Anderson: What do you predict as the biggest changeeither in approach or executionas the Department of Educations
civil-rights arm transitions from the Obama era?
Gentzel: Not much is known about the incoming administrations agenda for education [however,] the nations school boards will advocate for
equity and excellence in public education, as well as oppose privatization schemes that drain public dollars from our public schools.
Losen: Assuming DeVos and Senator Jeff Sessions [for attorney general] are confirmed, the biggest change will be that a Trump
administration will ignore blatant civil-rights violations seek changes that will add to segregated schools, and allow
bullying of discrete and insular minority groups of children. From a civil-rights perspective, we can hope that what looks like a
tidal wave peters out before it hits land, but we must prepare for the [ impact ] This will be much, much worse than
the prior Republican administrations who at least gave lip service to basic civil-rights issues. We will see a true crisis in U.S.
civil rights and not just in education.
Shibley: I dont have any special knowledge of how OCRs policies might change [but] I hope and recommend that the new OCR leadership
withdraw the preponderance mandate, replace its unconstitutionally broad definition of sexual harassment with one that is in accord with
Supreme Court case law, and recommit itself to going through proper notice and comment rulemaking procedures so that the interests of all
concerned parties are actually taken into account.
Tobin: That depend s greatly on the direction taken by the Secretary of Education and other appointees, funding from Congress, and
rulings from the courts . There could be both a tremendous slow-down in civil-rights work in general and an
abandonment of students' civil rights in certain areas, or even reversing course and advocating against students' civil rights in
certain areas.
A Court precedent is key. A win for Grimm rejects legal rationales that would get used to roll-back of broader
anti-discrimination laws.
Choe 17
et al; Ken Choe was Deputy General Counsel and Counselor to the Office of Health Reform at the Department of Health and
Human Services (HHS), where he was lead agency counsel with respect to the ACA, as well as Medicare, Medicaid, and other
healthcare financing programs administered by the Centers for Medicare & Medicaid Services. Ken holds a J.D., The George
Washington University National Law Center - 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 AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE AND THE NATIONAL LGBT
BAR ASSOCIATION AS AMICI CURIAE IN SUPPORT OF RESPONDENT - Available at SCOUTS blog along with all
amicus briefs on this matter- March MODIFIED FOR LANGUAGE THAT MAY OFFEND - #CutWithKirby -
http://www.scotusblog.com/wp-content/uploads/2017/03/16-273bsacamericansunitedforseparationofchurchandstate.pdf
But using the restroom is an essential and ordinary part of life . If G.G. is singled out and prevented from using the restroom as his
classmates do, he is also for practical purposes prevented from attending school in the same manner as they do. The Board's policy thus
subjects G.G. (Grimm) to sex-stereotyping and gender-identity discrimination that limits his ability to enjoy the educational
opportunities guaranteed to him by Title IX.
To be sure, some people hold deeply entrenched moral and religious beliefs regarding traditional sex roles and
transgender people. Some of them spoke at the Board's meetings; others have filed amicus briefs in this case. They are entitled to hold
whatever views they wish; no court can dictate how a person should think. But this Court has never allowed such views
(perspectives) to override federal antidiscrimination laws.
Quite the contrary. This Court's equal-protection decisions consistently prohibit federal, state, and local governmental actors
from relying on moral or religious disapprobation to justify treating some classes of people differently from others.
Hence, the Fourth Circuit appropriately gave no weight to morality and religion-based objections to transgender individuals when it ruled that Title IX may be
Those objections cannot be used as an
reasonably interpreted to require schools to treat transgender students consistent with their gender identity.
excuse to disregard Title IX or to justify ousting G.G. from the restrooms that he had been using without incident. This Court should therefore
decline to countenance such class-based objections as a defense under Title IX. To do otherwise not only would erode
critical federal antidiscrimination protections but also would be irreconcilable with this Court's settled understanding
of equal-protection law . What is more, it would give rise to grave Establishment Clause concerns by codifying religious belief as
official policy, thereby impermissibly imposing the burdens of objectors' religious views (perspectives) on innocent third
parties.

The impact is employment discrimination:

State-level roll-back of anti-discrimination law means employment discrimination will skyrocket. Thatll kill
the economy by hampering innovation.
Gao 15
et al; Huasheng Gao - Associate Professor, Division of Banking & Finance, Nanyang Business School - Nanyang Business
School - Nanyang Technological University - Does Workplace Discrimination Impede Innovation? March - modified for
language that may offend -- #CutWithKirby - http://www3.ntu.edu.sg/home/hsgao/GaoZhang20150307.pdf

We identify a negative causal effect of workplace discrimination on corporate innovation, using the staggered adoption
of U.S. state employment laws that prohibit discrimination based on sexual orientation and gender identity. We find a significant
increase in patents and patent citations for firms headquartered in states that pass such laws relative to firms
headquartered in states that do not. This result is more pronounced for firms that previously have not implemented pro-gay non-
discrimination policies, for firms in states with a large homosexual population, and for firms in human capital-intensive industries. Overall, our
findings support the view that inclusion inspires innovation.
The best way to ensure the development of new ideas is through a diverse and inclusive workforce. Forbes Insights (2011)
1. Introduction
Anecdotal evidence suggests that workplace discrimination impedes corporate innovation. For example, in an opinion editorial in the Wall Street
Journal, November 3, 2013, Tim Cook, Apple's CEO, urges Congress to support the Employment Non-Discrimination Act, arguing that
workplace equality is important for business creativity. He states, "Embracing (Protecting) people's individuality is a matter of basic
human dignity and civil rights. It also turns out to be great for the creativity that drives our business.1" Despite some
circumstantial examples, there is little empirical evidence on how workplace discrimination influences corporate
innovation. In this paper, we fill this gap and reveal a negative causal effect of workplace discrimination on firms'
innovation.
As explained in Becker (1957) and Arrow (1973), workplace discrimination refers to unjustified actions taken against workers because of
personal characteristics that are unrelated to their productivity. Such discriminatory tastes usually arise from prejudices held by employers and
coworkers. In this regard, we expect that workplace discrimination impedes innovation for the following reasons.
Innovation requires teamwork and proactive employee participation. Discrimination in the workplace reduces workforce cohesion, lowers
social ties and trust, and prevents cooperative participation in research activities, which may hinder knowledge spillovers and
exchange of ideas among employees (Becker, 1957; Dougherty, 1992; Van de Ven, 1986). On the other hand, an inclusive workplace
can better engage employees with a variety of backgrounds and viewpoints, who can help companies to "think outside the box" by
providing a wider range of perspectives and intellectual skills (Amason, 1996: Hong and Page, 2001; Watson et al., 1993). Moreover,
considering that the long-term nature of innovationrequires talented employees with long-term commitment, an inclusive and equal
workplace can increase employee satisfaction and loyalty, and thus help firms recruit and retain talented people in the long term, which in turn
fosters firms' innovation (Edmans, 2011; Holmstrom, 1989; Zingales, 2000).
We empirically examine the relation between workplace discrimination and innovation based on the staggered passage
of U.S. state-level employment laws that prohibit discrimination based on sexual orientation and gender identity. We use the passage of
these employment laws to capture an exogenous decrease in workplace discrimination (in particular, discrimination against homosexuals in the
workplace). This setting is highly appealing from an empirical standpoint for two reasons. First, the motivation behind these laws centers around
state courts" determination to address a persistent, widespread pattern of discrimination on the basis of sexual orientation and gender identity, and
to reinforce the commitment to fairness and equal opportunity in the workplace. As these laws were not passed with the intention of
promoting innovation, potential effects on innovation are likely to be an unintended consequence of these laws .
Second, the staggered adoption of these laws in several U.S. states enables us to identify their effects in a difference-in-differences framework.
Because multiple shocks affect different firms exogenously at different times, we can avoid the common identification difficulty faced by studies
with a single shock: the potential biases and noise coinciding with the shock that directly affect corporate innovation (Roberts and Whited, 2012).
Using a panel of 58,009 U.S. public firms from 1976 to 2008 and a difference-indifferences approach, we show that an exogenous decrease in
workplace discrimination subsequently leads to a significant increase in innovation outputs. On average, firms headquartered in
states that pass this employment anti-discrimination law experience an increase in the number of patents by 8% and an
increase in the number of patent citations by 11%, relative to firms headquartered in states that do not pass such a law.
The identifying assumption central to a causal interpretation of the difference-indifferences estimation is that treated and control firms share
parallel trends prior to the law changes. Our tests show that their pre-treatment trends are indeed indistinguishable. Moreover, most of the impact
of employment anti-discrimination laws on innovation occurs three years after the law enactment, which suggests a causal effect.
However, it is possible that the adoption of state anti-discrimination laws is triggered by local business conditions that
in turn increase firms' innovation. To mitigate this concern, we additionally control for local business conditions such
as state GDP, population, education, and political balance. Our inferences are largely unchanged. In further tests, we exploit the fact that
economic conditions are likely to be similar in neighboring states, whereas the effects of anti-discrimination laws
stop at state borders. This discontinuity in anti-discrimination laws allows us to difference away any unobserved confounding
factors as long as they affect both the treated state and its neighbors. By comparing treated firms to their immediate neighbors, we can better
identity how much of the observed innovation change is due to anti-discrimination laws rather than other shocks to local business
conditions. When we difference away changes in local business conditions by focusing on treated and control firms closely located on either side
of a state border, we continue to find a significant increase in firms' innovation after their states pass anti-discrimination
laws, relative to their neighboring firms. These results indicate that the observed increase in innovation after the enactment of state anti-
discrimination laws is not driven by local economic shocks.
To provide further evidence that the effects of anti-discrimination laws on innovation are indeed tied to workplace discrimination, we apply a
double difference-indifferences approach to examine heterogeneous treatment effects. We find that the effects of anti-discrimination laws on
corporate innovation are stronger for firms that previously did not implement pro-gay non-discrimination policies, for firms that are in states with
a large homosexual population, and for firms that operate in human capital-intensive industries. These cross-sectional variations in the impacts of
anti-discrimination laws on innovation further increase our confidence in the presence of a discrimination channel.
This paper provides at least four major contributions to the literature. First, our paper adds to the literature that examines the drivers of
innovation. Current research on this topic has focused on factors such as incentive compensation for management (Manso, 2011), institutional
ownership (Aghion et al., 2013), anti-takeover provisions (Atanassov, 2013), access to the equity market (Hsu et al., 2013), information
environment (He and Tian, 2013), employees' job security (Acharya et al., 2014), etc. Although these studies enhance our understanding of the
mechanisms that motivate firms to innovate, the role of firms * work environment is largely overlooked. This lack of evidence makes it difficult
to fully understand the drivers of corporate innovation, given that innovative ideas arise usually when employees communicate, share ideas, and
collaborate with their peers (Cross et al., 2007; Spender and Strong, 2012). Our paper helps to fill this gap by documenting an inclusive
workforce as an important driver of innovation.
Second, our study sheds light on the real consequences of labor market discrimination. Since Becker's (1957) seminal work, the subject of labor
market discrimination has been an important research area in the economics literature. While most studies on discrimination focus on
documenting the existence of unfair treatment of women, minorities, and homosexuals in the workplace, the real economic cost of discrimination
is relatively under-explored. Our paper suggests that discrimination in the labor market imposes significant costs on the
economy by decreasing corporate innovativeness.
Innovation is key to the US economy that, in turn, is vital to global prosperity.
Thierer 17
et al; Adam Thierer is a Senior Research Fellow with the Technology Policy Program at the Mercatus Center at George Mason
University. Adams writings have appeared in the Wall Street Journal, the Economist, the Washington Post, the Atlantic, and
Forbes, and Adam has testified numerous times on Capitol Hill. hierer received his MA in international business management
and trade theory at the University of Maryland and his BA in journalism and political philosophy from Indiana University.
Innovation Policy at the Mercatus Center: The Shape of Things to Come - Originally published on Medium on 4/10/17 -
#CutWithKirby - available at: https://techliberation.com/2017/04/11/innovation-policy-at-the-mercatus-center-the-shape-of-
things-to-come/
Innovation isnt just about the latest gee-whiz gizmos and gadgets. Thats all nice, but something far more profound is
at stake:
Innovation is the single most important determinant of long-term human well-being. There exists widespread
consensus among historians, economists, political scientists and other scholars that technological innovation is the
linchpin of expanded economic growth , opportunity, choice, mobility, and human flourishing more generally. It is the ongoing
search for new and better ways of doing things that drives human learning and prosperity in every senseeconomic, social, and
cultural.
As the Industrial Revolution revealed, leaps in economic and human growth cannot be planned. They arise from societies that reward risk takers
and legal systems that accommodate change. Our ability to achieve progress is directly proportional to our willingness to embrace and benefit
from technological innovation, and it is a direct result of getting public policies right.
The U nited S tates is uniquely positioned to lead the world into the next era of global technological advancement and wealth
creation. Thats why we and our colleagues at the Technology Policy Program at the Mercatus Center at George Mason University
devote so much time and energy to defending the importance of innovation and countering threats to it. Unfortunately, those
threats continue to multiply as fast as new technologies emerge

Economic decline leads to nuclear war


Tnnesson 15
(Stein, Research Professor, Peace Research Institute Oslo; Leader of East Asia Peace program, Uppsala University, 2015,
Deterrence, interdependence and SinoUS peace, International Area Studies Review, Vol. 18, No. 3, p. 297-311)
Several recent works on China and SinoUS relations have made substantial contributions to the current understanding of how and under what
circumstances a combination of nuclear deterrence and economic interdependence may reduce the risk of war between major powers. At least
four conclusions can be drawn from the review above: first, those who say that interdependence may both inhibit and drive conflict are right.
Interdependence raises the cost of conflict for all sides but asymmetrical or unbalanced dependencies and negative trade expectations may
generate tensions leading to trade wars among inter-dependent states that in turn increase the risk of military conflict (Copeland, 2015: 1, 14, 437;
Roach, 2014). The risk may increase if one of the interdependent countries is governed by an inward-looking socio-economic coalition (Solingen,
2015); second, the risk of war between China and the US should not just be analysed bilaterally but include their allies and partners. Third party
countries could drag China or the US into confrontation; third, in this context it is of some comfort that the three main economic powers in
Northeast Asia (China, Japan and South Korea) are all deeply integrated economically through production networks within a global system of
trade and finance (Ravenhill, 2014; Yoshimatsu, 2014: 576); and fourth, decisions for war and peace are taken by very few people, who act on the
basis of their future expectations. International relations theory must be supplemented by foreign policy analysis in order to assess the value
attributed by national decision-makers to economic development and their assessments of risks and opportunities. If leaders on either side of
the Atlantic beginto seriously fear or anticipate their own nations decline then they may blame this on external dependence,
appeal to anti-foreign sentiments, contemplate the use of force to gain respect or credibility, adopt protectionist
policies, and ultimately refuse to be deterred by either nuclear arms or prospects of socioeconomic calamities. Such a
dangerous shift could happen abruptly , i.e. under the instigation of actions by a third party or against a third party.
Yet as long as there is both nuclear deterrence and interdependence, the tensions in East Asia are unlikely to escalate to war. As Chan (2013)
says, all states in the region are aware that they cannot count on support from either China or the US if they make provocative moves. The
greatest risk is not that a territorial dispute leads to war under present circumstances but that changes in the world economy
alter those circumstances in ways that render inter-state peace more precarious. If China and the US fail to rebalance their
financial and trading relations (Roach, 2014) then a trade war could result, interrupting transnational production networks, provoking social
distress, and exacerbating nationalist emotions. This could have unforeseen consequences in the field of security, with nuclear
deterrence remaining the only factor to protect the world from Armageddon, and unreliably so. Deterrence could
lose its credibility : one of the two great powers might gamble that the other yield in a cyber-war or conventional limited
war, or third party countries might engage in conflict with each other, with a view to obliging Washington or Beijing to
intervene.
Version 3.0 - Excess Flex Advantage

Advantage # __ State Flexibility is Bad in this Context.

The Supreme Court punted on the Gloucester County verdict. That sets a bad precedent - greenlighting
excessive State flexibility on questions of social justice.
Dorf 17
Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus Test:
Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice Anthony
Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard as an
undergraduate, he was the American Parliamentary Debate Association national champion. Should Federalism Play a Role in
the Interpretation of Civil Rights Laws ? From the publication: VERDICT March 8th Modified for language that may be
objectionable - - #CutWithKirby - https://verdict.justia.com/2017/03/08/federalism-play-role-interpretation-civil-rights-laws

The Supreme Court was scheduled to hear argument later this month in Gloucester County School Board v. G.G.
(Grimm), which presented the question whether a school district policy forbidding a transgender boy from using the boys restroom in his
public high school violates Title IX, a federal civil rights statute that forbids sex discrimination by schools that receive federal funds. The U.S.
Court of Appeals for the Fourth Circuit held that the schools approach does violate Title IX, but its ruling relied on a policy of the Obama
administrations Department of Educationformalized in a January 2015 letterconcluding that Title IX requires that students be permitted to
use restrooms that correspond to their gender identity. When the justices granted review of the Fourth Circuit ruling, they expected that much of
the case would focus on a question of administrative law: Was deference to the letter policy appropriate?
However, as Professor Joanna Grossman explained last week, the Trump administration disavowed the Obama administration policy,
citing concerns about states rights. Accordingly, on Monday, the Supreme Court sent the case back to the appeals court for
reconsideration in light of the new administrations position.
With the administrative law issue removed from the case, the appeals court will now focus on the meaning of Title IX itself. We can discern what
arguments the parties will likely make based on the arguments they presented to the Supreme Court.
Plaintiff Gavin Grimm argued that the school boards policy discriminates against him on the basis of sex because the term sex, as used in Title
IX, includes gender identity. (Because Grimm is a minor, the case caption refers to him by his initials, but he has made numerous public
appearances under his actual name, and thus using it causes him no harm; indeed, insistence on using initials could be taken to imply that there is
something shameful about being transgender.)
In addition, a Supreme Court amicus brief on behalf of myself and three other law professors argued that the board policy excluding Grimm from
the common restrooms and publicly stigmatizing him as unfit to use the same restrooms as all other boys discriminates against him based on sex
in the most literal way: it excludes him from the male restroom on the basis of his sexual anatomy. A longstanding federal regulation permits
federally funded educational institutions to sex-segregate restroom facilities. Our brief argued that while such sex-segregation may be innocuous
as applied to most (cisgender) students, the school boards policy contravenes Title IX (and is thus invalid) when applied to transgender students
because of the severe harm it inflicts on them without furthering any important institutional interests.
On the other side, the school board has argued that the Congress that enacted Title IX intended sex to refer to what the boards Supreme Court
brief called physiological distinctions between males and females, warning that a ruling for Grimm would upend the universally accepted
practice of separating restrooms, locker rooms, showers, athletic teams, and dormitory rooms based on such distinctions. As readers no doubt
can infer from the fact that I filed a brief in support of Grimm, I find this line of argument unpersuasivenot least because, even in this very
case, it is incoherent: Grimm has received testosterone hormone therapy and undergone chest reconstruction surgery; in nearly all outwardly
observable respects, he presents as physiologically male. Beyond the confusion at the heart of the school boards policy, there is no reason to
think that its parade of horribles will come to pass based on a case that concerns only restrooms.
In any event, readers interested in delving deeper into the arguments back and forth would do well to read the respective Supreme Court briefs
(available here). Or those pressed for time might consult Professor Grossmans excellent analysis in last weeks column.
In the balance of this column, I explore the suggestion put forward by the Trump administration that the entire issue ought to
be decided at the state level. Professor Grossman wrote that this suggestion makes no sense in this context , and, as I shall
explain, I agree. But to understand why that is so, we must first acknowledge that in some other contexts states rights or , as the
case law typically refers to this interest, federalism is relevant to the interpretation of federal statutes.
A Legitimate Role for Federalism in Statutory Interpretation
Federal laws such as
Some federal statutes explicitly contemplate participation of state government officials in carrying out their objectives.
the Clean Air Act and the Clean Water Act as well as federal programs like Medicaid and highway grants are just some
examples of so-called cooperative federalism: The federal government sets the broad policy and provides most or all of the funding;
states that choose to participate have an important role in implementing the policy. States rights are baked into such programs.
Even when a federal law does not require or encourage state participation in its implementation, a court construing unclear provisions of that law
might do so in a way that preserves flexibility for states. Why? Three sorts of reasons can be offered.
First, conditions might vary from place to place . By construing a federal statute to allow state and local governments greater
freedom, courts leave open possibilities that suit such different conditions.
Second, even when the relevant conditions are relatively uniform nationwide, construing federal law to provide states and localities more freedom
encourages a variety of approaches. Such freedom allows each state to serve as what Justice Louis Brandeis famously called a
laboratory for novel social and economic experiments without risk to the rest of the country.
Third, the U.S. Constitution creates a system of dual sovereignty in which the federal government acts on its enumerated powers
while the states act on their reserved powers when doing so does not conflict with either a federal law or the Constitution itself. The Supreme
Court has sometimes narrowly construed federal statutes to avoid attributing to Congress the intention to go all the way to the edge of its powers
or required a clear statement by Congress to do so.
Values Conflict and Federalism
None of the factors thus-far discussed seems to bear on the question whether Title IX permits a school board to bar a
trans gender boy from the boys restroom. After all, when Congress enacts legislation protecting civil rights and civil liberties as it has
done since Reconstructionit necessarily determines that on these matters, national policy prevails over regional variation
and any interest in experimentation.
There is, however, a different sort of argument for states rights that one sometimes encounters and that appears to have animated the Trump
policy. When social norms lag behind legal norms, courts will sometimes hesitate to require that parties comply with the full measure of the legal
norms.
Why would a court trim its sails in that way? As Alexander Hamilton observed in Federalist 78, courts have neither the power of the purse nor of
the sword, and thus must ultimately depend on political actors for the fulfillment of their judgments. Where the judicial view of an issue
outpaces social norms by too wide a margin, a judge may be tempted to hold back, even if in doing so she (they) fails to act
on her (their) best legal judgment.
Examples of this sort of trimming are well known in constitutional law. Most famously, in the case that came to be known as Brown
II, the Supreme Court did not order that Jim Crow states immediately desegregate their schools, partly for fear that doing so
would spark a backlash. Instead, the Court ordered that jurisdictions practicing de jure segregation move to desegregate with all deliberate
speed.
Dissenting from the Supreme Courts decision finding a constitutional right to same-sex marriage, Chief Justice Roberts expressed a
similar worry to the one that animated the Brown II Court. He thought that a right to same-sex marriage would be better
accepted by the People if they chose it democratically than if it were (as he saw the matter) imposed on them by the courts.
Why Federalism Fails in the Gloucester County Case
Yet these two leading examples of the argument for going slowly when there is value conflict ultimately undermine rather than support the states
rights argument in a case like Gloucester County.
For one thing, the notion that courts ought not to get too far ahead of public opinion on matters of civil rights and civil liberties has somewhat
greater force in constitutional cases than in statutory cases like Gloucester County. After all, if a ruling construes a statute in a way that
substantial portions of the country find troubling, Senators and representatives from the relevant states can use their influence in Congress to
enact new legislation.
To be sure, Grimms original complaint included a claim under the Equal Protection Clause of the Fourteenth Amendment, not just Title IX.
Although the Supreme Court did not grant review to decide the constitutional issue, it could arise on remand or in a future case involving a
different plaintiff. And a ruling that a policy like the Gloucester County School Boards restroom policy violates the Constitution would not be
amendable by an act of Congress.
But even with respect to constitutional questions, the dont-go-too-fast approach is deeply flawed. Consider Brown II. Far from using
the breathing space that the Court afforded them to desegregate in an orderly fashion that allowed white southerners to buy into the ruling,
politicians throughout the South engaged in a practice of massive resistance, while their lawyers used the all-deliberate-speed formula as
an excuse for foot dragging. It was not until Congress enacted the 1964 Civil Rights Act, which among other things, put the resources of
the Justice Department behind desegregation efforts, that substantial changes began to occur. By that point, a clearly frustrated Supreme Court
had declared: The time for mere deliberate speed has run out.
Conversely, the Chief Justices fears that a ruling in favor of same-sex marriage would spark a backlash or undermine support for marriage
equality have (thus far) proved unwarranted. According to Pew polls, that support has remained steady since the Courts ruling in the summer of
2015. According to Gallup polls, support for marriage equality has increased.
None of this is to say that judges should simply impose their values on a reluctant society. However, if judges are not philosopher-kings, neither
are they skilled soothsayers who can predict with any certainty when the People will turn against a ruling versus when the People will be guided
by it. Faced with such uncertainty, judges and justices should interpret and apply the law, as best they see it. In the current case, that
should mean ruling in favor of Gavin Grimm and rejecting the Trump administrations states rights argument.

The States Rights arguments in this case risk a broader roll-back anti-discrimination policies.
Goldberg 17
et al; Suzanne Goldberg serves as the Herbert and Doris Wechsler Clinical Professor of Law at Columbia Law School. She also
leads the Law Schools Center for Gender and Sexuality Law and its Sexuality and Gender Law Clinic. Goldberg previously
served on the faculties of Rutgers School of Law-Newark and Fordham Law School. In private practice, Goldberg served as a
senior staff attorney at Lambda Legal, the countrys first legal organization focused on achieving full equality for lesbian and gay
people. During her time at Lambda, she served as co-counsel for the defendants in the landmark U.S. Supreme Court case
Lawrence v. Texas- 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 NAACP
LEGAL DEFENSE AND EDUCATIONAL FUND, INC. AND THE ASIAN AMERICAN LEGAL DEFENSE AND
EDUCATION FUND AS AMICI CURIAE IN SUPPORT OF RESPONDENT - Available at SCOUTS blog along with all
amicus briefs on this matter- March modified for language that may offend - #CutWithKirby -
http://www.scotusblog.com/wp-content/uploads/2017/03/16-273_bsac_naacp_ldf_0.pdf

While this case involves complex issues of agency deference and the proper interpretation of Title IX of the Education
Amendments of 1972, one fundamental question lies at its core: can state actors physically separate and restrict
individuals in public places solely because they are perceived to be different based on unfounded fears and prejudices?
Time and time again, this Court has rightly said that the principle of equality under the law dictates that the answer to this question is
no. Accordingly, this Court has made clear that it is unconstitutional for a state to physically separate people into different schools or bathrooms by their race,
regardless of the quality of the respective facilities; to separate and prohibit people from enjoying the benefits of marital union because of race or sex; to separate and
restrict people from neighborhoods based on race or disability; and/or to separate and exclude people from the workplace based on race or sex. The broad application
of this principle is central to the enduring strength of liberty and equal protection.
Given the vital importance of equal access to public accommodations and amici's long experience challenging discrimination
against disfavored groups including discrimination justified by claims of "states' rights" amici register three core
points in this brief:
First, there is a lengthy and troubling history of state actors using public restrooms and similar shared spaces to sow division and instill
subordination. Not so long ago, bathrooms nationwide were designated "Colored Only" and "Whites Only." A key lesson of that painful and
ignoble era is that while private-space barriers like racially segregated bathrooms may have seemed to some like minor inconveniences or
insignificant sources of embarrassment, they were in fact a source of profound indignity that inflicted deep and indelible harms on individuals of
both races, and society at large. This disreputable tradition of state and local governments enshrining fear or hostility toward a
disfavored group of people into laws requiring their physical separation from others should encourage this Court to view
( consider ) with skepticism the rationales proffered by local officials here.
Second, state officials often justified physical separation in restroom facilities, swimming pools, and marriage by invoking unfounded fears about
sexual contact and exploitation. As demonstrated below, the purported concerns about sexual predation currently used as a basis for excluding
transgender students from school bathrooms uncomfortably echo those used to justify the separate bathrooms for racial minorities.
Third, certain physical-separation rules that were applied to African Americans were also justified as protectioniste.g., for the good of the
African-American community and/or to protect African-Americans from harm that could arise from others' feelings of discomfort. Eventually,
these kinds of rules were rejected by both the courts and society at large because they conflict with the foundational constitutional principle that
government shall not distinguish between people based on sex, race, or other arbitrary, perceived differences.
The arguments offered to defend the discriminatory singling out of G.G. (Grimm) are painfully similar to those that
this Court long ago deemed to be insufficient to justify discrimination based on race. The proposition that G.G. should
go back to using the "separate restroom," Pet. App. 88a, parrots
the functionalist logic that this Court discarded along with " separate
but equal."
The Trump Administration's recent withdrawal of the guidance on transgender students and its description of
bathroom access as a " states' rights issue"2 only amplifies the disconcerting historical echoes in this case . State and
local officials often invoked "states' rights" as a basis for opposing this Court's decisions and insulating prohibited
discrimination from statutory and constitutional review. Indeed "states' rights" was the frequent refrain of officials who fought against
racial integration, including in bathrooms. Ultimately, however, the claim of "states' rights" has no relevance to this Court's interpretation of a
federal statutein this case Title IXas states are bound by this Court's interpretation of federal law.
We must not repeat the mistakes of the past . These all-too-familiar argumentsabout sexual contact, predation, danger, and
discomfortremain both factually baseless and legally immaterial. Instead,
the weight of precedent and the guarantee of equal
protection inexorably support this Court in recognizing G.G.'s (Grimms) simple and inherent dignity by letting him use the
boys' bathroom with his peers.

A Federal Court ruling is necessary to counter State & Local efforts to roll-back anti-discrimination laws.
Absent that check, efforts will spill beyond education policy.
Anderson 16
Internally quoting Harper Jean Tobin The director of policy for the Washington, D.C.-based National Center for Transgender
Equality, as well as Dan Losen, the director of the Center for Civil Rights Remedies at UCLAs Civil Rights Project. Melinda D.
Anderson is a contributing writer for The Atlantic - From the article: What Is the Future of the Office for Civil Rights? - The
Atlantic - December 2nd Modified for language that may offend - - #CutWithKirby -
https://www.theatlantic.com/education/archive/2016/12/what-is-the-future-of-the-education-office-for-civil-rights/509348/

In the days after


the presidential election, news outlets and thousands of educators reported increases in harassment,
bullying, and intimidation of students based on race , ethnicity , religion , and gender identity . While schools and colleges
are on the frontline in confronting these incidents, one
mechanism that for more than 35 years has served to curtail such
actions is the Office for Civil Rights ( OCR ) within the U.S. Department of Education .
The federal agencys mission is to ensure equal access to education, and its charged with enforcing laws that prohibit discrimination against
marginalized populationsincluding students of color, religious and gender minorities, and students with disabilities. In recent years OCR has
issued guidance to states and local school districts on their legal obligation to meet the educational needs of transgender students, students with
ADHD, and youth in juvenile justice facilities; the civil-rights unit also tracks how well public schools and districts nationwide measure up on
equity in learning opportunities.
As one president wraps up his term and another takes the reigns, some have speculated on what a Donald Trump administration and Education
Secretary-nominee Betsy DeVos foretell for the civil-rights branch given indications that they plan to downsize the department. With many
unknowns still in play, The Atlantic invited voices in education representing divergent viewpoints to offer their outlook and prognosis on the
Education Departments civil-rights arm. The responses, via email, have been edited for clarity and length.
Melinda D. Anderson: It would seem that the fundamental work of the current OCRwhether focused on sexual harassment
racial bullying , trans gender discrimination , or other efforts is providing equitable learning
and violence,
environments. Could this work look (be) different in the new administration and a DeVos-led Department of
Education? If so, how?
Thomas J. Gentzel, the executive director of the National School Boards Association
[Though] the fundamental work of OCR is enforcing civil-rights laws in education, it is the job of school districts to provide equitable learning
environments and, ultimately, to balance all of the competing interests so that all students have safe environments in which to learn. NSBA has
been concerned about executive overreach through the issuance of guidance [and] will continue to urge the incoming administration to exercise
restraint in such an approach to achieving its educational objectives.
Dan Losen, the director of the Center for Civil Rights Remedies at UCLAs Civil Rights Project
A major question is to what extent a Trump [administration] will seek to unleash the forces of the far right and yield OCR
[and the Department of Justice] as hammers for its agenda, versus dramatically diminishing the federal role in education
by substantially cutting OCR's budget and reducing OCR's footprint. The latter entails allowing those [far right] forces to go
unchecked at the state and local levels [where] they clearly have power and influence [its] like the difference
between aggressive and passive aggressive, but [both] mean a big difference in the lives of children. I predict a lot
more bullying , much less sensitivity, and blatant bigotry being tolerated [at schools and campuses.]
Robert Shibley, the executive director of the Foundation for Individual Rights in Education, an advocacy group focused on free speech in
academia, and the author of Twisting Title IX
The fundamental work of OCR is to enforce the anti-discrimination laws over which it has been given jurisdiction by Congress, as well as duly
enacted regulations based on those laws. I suspect that most of OCRs work will remain largely unchanged, but an agencys interpretation of laws
and regulations is bound to change somewhat with a change of political control. Consensus wont be possible on every controversial issue, but
OCRs efforts to fight discrimination are severely hobbled from the start if stakeholders dont even have the sense that they have been given a fair
hearing, as they werent with the April 4, 2011 [letter to colleges, universities, and schools] mandating that institutions use the preponderance of
the evidence standard in sexual-misconduct hearings.
Harper Jean Tobin, the director of policy for the Washington, D.C.-based National Center for Transgender Equality
OCR's mission will not change. How effective it is in carrying out that mission will depend in large part on the resources provided by Congress
and the leadership provided by the president and his appointees. Unfortunately, the president-elect's nominee for secretary of education and other
members of his leadership team have shown an indifference or hostility to civil-rights enforcement in general, and hostility to certain
communities in particular, including LGBT communities.
Anderson: What do you predict as the biggest changeeither in approach or executionas the Department of Educations
civil-rights arm transitions from the Obama era?
Gentzel: Not much is known about the incoming administrations agenda for education [however,] the nations school boards will advocate for
equity and excellence in public education, as well as oppose privatization schemes that drain public dollars from our public schools.
Losen: Assuming DeVos and Senator Jeff Sessions [for attorney general] are confirmed, the biggest change will be that a Trump
administration will ignore blatant civil-rights violations seek changes that will add to segregated schools, and allow
bullying of discrete and insular minority groups of children. From a civil-rights perspective, we can hope that what looks like a
tidal wave peters out before it hits land, but we must prepare for the [ impact ] This will be much, much worse than
the prior Republican administrations who at least gave lip service to basic civil-rights issues. We will see a true crisis in U.S.
civil rights and not just in education.
Shibley: I dont have any special knowledge of how OCRs policies might change [but] I hope and recommend that the new OCR leadership
withdraw the preponderance mandate, replace its unconstitutionally broad definition of sexual harassment with one that is in accord with
Supreme Court case law, and recommit itself to going through proper notice and comment rulemaking procedures so that the interests of all
concerned parties are actually taken into account.
Tobin: That depend s greatly on the direction taken by the Secretary of Education and other appointees, funding from Congress, and
rulings from the courts . There could be both a tremendous slow-down in civil-rights work in general and an
abandonment of students' civil rights in certain areas, or even reversing course and advocating against students' civil rights in
certain areas.
A Court precedent is key. A win for Grimm rejects legal rationales that would get used to roll-back of broader
anti-discrimination laws.
Choe 17
et al; Ken Choe was Deputy General Counsel and Counselor to the Office of Health Reform at the Department of Health and
Human Services (HHS), where he was lead agency counsel with respect to the ACA, as well as Medicare, Medicaid, and other
healthcare financing programs administered by the Centers for Medicare & Medicaid Services. Ken holds a J.D., The George
Washington University National Law Center - 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 AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE AND THE NATIONAL LGBT
BAR ASSOCIATION AS AMICI CURIAE IN SUPPORT OF RESPONDENT - Available at SCOUTS blog along with all
amicus briefs on this matter- March MODIFIED FOR LANGUAGE THAT MAY OFFEND - - #CutWithKirby -
http://www.scotusblog.com/wp-content/uploads/2017/03/16-273bsacamericansunitedforseparationofchurchandstate.pdf
But using the restroom is an essential and ordinary part of life . If G.G. is singled out and prevented from using the restroom as his
classmates do, he is also for practical purposes prevented from attending school in the same manner as they do. The Board's policy thus
subjects G.G. (Grimm) to sex-stereotyping and gender-identity discrimination that limits his ability to enjoy the educational
opportunities guaranteed to him by Title IX.
To be sure, some people hold deeply entrenched moral and religious beliefs regarding traditional sex roles and
transgender people. Some of them spoke at the Board's meetings; others have filed amicus briefs in this case. They are entitled to hold
whatever views they wish; no court can dictate how a person should think. But this Court has never allowed such views
(perspectives) to override federal antidiscrimination laws.
Quite the contrary. This Court's equal-protection decisions consistently prohibit federal, state, and local governmental actors
from relying on moral or religious disapprobation to justify treating some classes of people differently from others.
Hence, the Fourth Circuit appropriately gave no weight to morality and religion-based objections to transgender individuals when it ruled that Title IX may be
reasonably interpreted to require schools to treat transgender students consistent with their gender identity. Those
objections cannot be used as an
excuse to disregard Title IX or to justify ousting G.G. from the restrooms that he had been using without incident. This Court should therefore
decline to countenance such class-based objections as a defense under Title IX. To do otherwise not only would erode
critical federal antidiscrimination protections but also would be irreconcilable with this Court's settled understanding
of equal-protection law . What is more, it would give rise to grave Establishment Clause concerns by codifying religious belief as
official policy, thereby impermissibly imposing the burdens of objectors' religious views (perspectives) on innocent third
parties.

The impact is employment discrimination:

State-level roll-back of anti-discrimination law means employment discrimination will skyrocket. Thatll
hamper innovation.
Gao 15
et al; Huasheng Gao - Associate Professor, Division of Banking & Finance, Nanyang Business School - Nanyang Business School - Nanyang
Technological University - Does Workplace Discrimination Impede Innovation? March - modified for language that may offend - -
#CutWithKirby - http://www3.ntu.edu.sg/home/hsgao/GaoZhang20150307.pdf

We identify a negative causal effect of workplace discrimination on corporate innovation, using the staggered adoption
of U.S. state employment laws that prohibit discrimination based on sexual orientation and gender identity. We find a significant
increase in patents and patent citations for firms headquartered in states that pass such laws relative to firms
headquartered in states that do not. This result is more pronounced for firms that previously have not implemented pro-gay non-
discrimination policies, for firms in states with a large homosexual population, and for firms in human capital-intensive industries. Overall, our
findings support the view that inclusion inspires innovation.
The best way to ensure the development of new ideas is through a diverse and inclusive workforce. Forbes Insights (2011)
1. Introduction
Anecdotal evidence suggests that workplace discrimination impedes corporate innovation. For example, in an opinion editorial in the Wall Street
Journal, November 3, 2013, Tim Cook, Apple's CEO, urges Congress to support the Employment Non-Discrimination Act, arguing that
workplace equality is important for business creativity. He states, "Embracing (Protecting) people's individuality is a matter of basic
human dignity and civil rights. It also turns out to be great for the creativity that drives our business.1" Despite some
circumstantial examples, there is little empirical evidence on how workplace discrimination influences corporate
innovation. In this paper, we fill this gap and reveal a negative causal effect of workplace discrimination on firms'
innovation.
As explained in Becker (1957) and Arrow (1973), workplace discrimination refers to unjustified actions taken against workers because of
personal characteristics that are unrelated to their productivity. Such discriminatory tastes usually arise from prejudices held by employers and
coworkers. In this regard, we expect that workplace discrimination impedes innovation for the following reasons.
Innovation requires teamwork and proactive employee participation. Discrimination in the workplace reduces workforce cohesion, lowers
social ties and trust, and prevents cooperative participation in research activities, which may hinder knowledge spillovers and
exchange of ideas among employees (Becker, 1957; Dougherty, 1992; Van de Ven, 1986). On the other hand, an inclusive workplace
can better engage employees with a variety of backgrounds and viewpoints, who can help companies to "think outside the box" by
providing a wider range of perspectives and intellectual skills (Amason, 1996: Hong and Page, 2001; Watson et al., 1993). Moreover,
considering that the long-term nature of innovationrequires talented employees with long-term commitment, an inclusive and equal
workplace can increase employee satisfaction and loyalty, and thus help firms recruit and retain talented people in the long term, which in turn
fosters firms' innovation (Edmans, 2011; Holmstrom, 1989; Zingales, 2000).
We empirically examine the relation between workplace discrimination and innovation based on the staggered passage
of U.S. state-level employment laws that prohibit discrimination based on sexual orientation and gender identity. We use the passage of
these employment laws to capture an exogenous decrease in workplace discrimination (in particular, discrimination against homosexuals in the
workplace). This setting is highly appealing from an empirical standpoint for two reasons. First, the motivation behind these laws centers around
state courts" determination to address a persistent, widespread pattern of discrimination on the basis of sexual orientation and gender identity, and
to reinforce the commitment to fairness and equal opportunity in the workplace. As these laws were not passed with the intention of
promoting innovation, potential effects on innovation are likely to be an unintended consequence of these laws.
Second, the staggered adoption of these laws in several U.S. states enables us to identify their effects in a difference-in-differences framework.
Because multiple shocks affect different firms exogenously at different times, we can avoid the common identification difficulty faced by studies
with a single shock: the potential biases and noise coinciding with the shock that directly affect corporate innovation (Roberts and Whited, 2012).
Using a panel of 58,009 U.S. public firms from 1976 to 2008 and a difference-indifferences approach, we show that an exogenous decrease in
workplace discrimination subsequently leads to a significant increase in innovation outputs. On average, firms headquartered in
states that pass this employment anti-discrimination law experience an increase in the number of patents by 8% and an
increase in the number of patent citations by 11%, relative to firms headquartered in states that do not pass such a law.
The identifying assumption central to a causal interpretation of the difference-indifferences estimation is that treated and control firms share
parallel trends prior to the law changes. Our tests show that their pre-treatment trends are indeed indistinguishable. Moreover, most of the impact
of employment anti-discrimination laws on innovation occurs three years after the law enactment, which suggests a causal effect.
However, it is possible that the adoption of state anti-discrimination laws is triggered by local business conditions that
in turn increase firms' innovation. To mitigate this concern, we additionally control for local business conditions such
as state GDP, population, education, and political balance. Our inferences are largely unchanged. In further tests, we exploit the fact that
economic conditions are likely to be similar in neighboring states, whereas the effects of anti-discrimination laws
stop at state borders. This discontinuity in anti-discrimination laws allows us to difference away any unobserved confounding
factors as long as they affect both the treated state and its neighbors. By comparing treated firms to their immediate neighbors, we can better
identity how much of the observed innovation change is due to anti-discrimination laws rather than other shocks to local business
conditions. When we difference away changes in local business conditions by focusing on treated and control firms closely located on either side
of a state border, we continue to find a significant increase in firms' innovation after their states pass anti-discrimination
laws, relative to their neighboring firms. These results indicate that the observed increase in innovation after the enactment of state anti-
discrimination laws is not driven by local economic shocks.
To provide further evidence that the effects of anti-discrimination laws on innovation are indeed tied to workplace discrimination, we apply a
double difference-indifferences approach to examine heterogeneous treatment effects. We find that the effects of anti-discrimination laws on
corporate innovation are stronger for firms that previously did not implement pro-gay non-discrimination policies, for firms that are in states with
a large homosexual population, and for firms that operate in human capital-intensive industries. These cross-sectional variations in the impacts of
anti-discrimination laws on innovation further increase our confidence in the presence of a discrimination channel.
This paper provides at least four major contributions to the literature. First, our paper adds to the literature that examines the drivers of
innovation. Current research on this topic has focused on factors such as incentive compensation for management (Manso, 2011), institutional
ownership (Aghion et al., 2013), anti-takeover provisions (Atanassov, 2013), access to the equity market (Hsu et al., 2013), information
environment (He and Tian, 2013), employees' job security (Acharya et al., 2014), etc. Although these studies enhance our understanding of the
mechanisms that motivate firms to innovate, the role of firms * work environment is largely overlooked. This lack of evidence makes it difficult
to fully understand the drivers of corporate innovation, given that innovative ideas arise usually when employees communicate, share ideas, and
collaborate with their peers (Cross et al., 2007; Spender and Strong, 2012). Our paper helps to fill this gap by documenting an inclusive
workforce as an important driver of innovation.
Second, our study sheds light on the real consequences of labor market discrimination. Since Becker's (1957) seminal work, the subject of labor
market discrimination has been an important research area in the economics literature. While most studies on discrimination focus on
documenting the existence of unfair treatment of women, minorities, and homosexuals in the workplace, the real economic cost of discrimination
is relatively under-explored. Our paper suggests that discrimination in the labor market imposes significant costs on the
economy by decreasing corporate innovativeness.
Innovations key to maintaining US Hegemony. Every tool that retains foreign policy leadership hinges on
strong innovation.
Troyjo 16
Marcos Troyjo, Adjunct Associate Professor of International and Public Affairs and Global Affairs Scholar at Columbia
University. Troyjo is the founder of the Center for Business Diplomacy, an independent think-tank on global entrepreneurship.
He holds a PhD in sociology of international relations from the University of So Paulo and pursued postdoctoral studies at
Columbia University. An economist and political scientist, he is an alumnus of The Rio Branco Institute (Instituto Rio Branco),
the graduate school of international relations and diplomatic academy of Brazil's Ministry of Foreign Affairs. He undertook
additional graduate studies at Harvard University's Kennedy School of Government. The New Age Of Talent Huffington Post
- Oct 14, 2016 - - #CutWithKirby - http://www.huffingtonpost.com/entry/the-new-age-of-talent_us_580140b4e4b0985f6d157076

The emergence of Talentism as a key factor in the global economy is revolutionizing traditional notions of power,
prosperity and prestige
The relative weight of any country in international relations can be traditionally measured at three levels: its dissuasive
strength in terms of defense forces; the prosperity of its citizens and companies; and its influence as projected through
intangible values. As far as all of these are concerned, innovation is the key . And innovation is something that is produced by
elites.
This has been well explained from the time of the pioneering Schumpeter up until Acemoglu and Robinson and their essential book Why
Nations Fail . Those who turn their backs on the knowledge, business, and policy-making elites that can bring about innovation
become increasingly irrelevant nations. The outcome is diminished traditional power , a low degree of technological density
in the economy, and a limited soft power projection.
The only way forward is to encourage elites to adopt one of two types of innovation strategies: either creative destruction or creative adaptation.
The former means that the economy is in a permanent state of evolutionary chaos. Innovators are the only ones to
survive in a context of constant mutation. The replacement of typewriters by computers is a typical example of
creative destruction.
Argentina used to be a wealthy country at the beginning of the 20th century thanks to agriculture and livestock. Its elite was well educated but
little disposed to innovation. As a result, it entered the 21st century relatively poor. Meanwhile, the United States has been progressing since
the 19th century thanks to its radically innovative elite. It became the wealthiest and most powerful nation in the world.

Failed US leadership causes global wars and extinction. No alternative to US hegemony will safely emerge.
Brzezinski 12
Zbigniew K. Brzezinski - CSIS counselor and trustee and cochairs the CSIS Advisory Board, holds honorary degrees from
Georgetown University, Williams College, Fordham University, College of the Holy Cross, Alliance College, the Catholic
University of Lublin, Warsaw University, and Vilnius University. He is the recipient of numerous honors and awards) February
2012 After America http://www.foreignpolicy.com/articles/2012/01/03/after_america?page=0,0
For if
America falters, the world is unlikely to be dominated by a single preeminent successor -- not even China. International uncertainty,
increased tension among global competitors, and even outright chaos would be far more likely outcomes. While a sudden, massive
crisis of the American system -- for instance, another financial crisis -- would produce a fast-moving chain reaction leading to global political and
economic disorder, a steady drift by America into increasingly pervasive decay or endlessly widening warfare with Islam would be
unlikely to produce, even by 2025, an effective global successor. No single power will be ready by then to exercise the role that the
world, upon the fall of the Soviet Union in 1991, expected the United States to play: the leader of a new, globally cooperative world order. More
probable would be a protracted phase of rather inconclusive realignments of both global and regional power, with no
grand winners and many more losers, in a setting of international uncertainty and even of potentially fatal risks to
global well-being . Rather than a world where dreams of democracy flourish, a Hobbesian world of enhanced national security based on
varying fusions of authoritarianism, nationalism, and religion could ensue. RELATED 8 Geopolitically Endangered Species The leaders of the
world's second-rank powers, among them India, Japan, Russia, and some European countries, are already assessing the
potential impact of U.S. decline on their respective national interests. The Japanese, fearful of an assertive China dominating the Asian
mainland, may be thinking of closer links with Europe. Leaders in India and Japan may be considering closer political and even military
cooperation in case America falters and China rises. Russia, while perhaps engaging in wishful thinking (even schadenfreude) about America's
uncertain prospects, will almost certainly have its eye on the independent states of the former Soviet Union. Europe , not
yet cohesive, would likely be pulled in several directions: Germany and Italy toward Russia because of commercial interests, France
and insecure Central Europe in favor of a politically tighter European Union, and Britain toward manipulating a balance within the EU while
preserving its special relationship with a declining United States. Others may move more rapidly to carve out their own regional
spheres: Turkey in the area of the old Ottoman Empire, Brazil in the Southern Hemisphere, and so forth. None of these countries,
however, will have the requisite combination of economic, financial, technological, and military power even to
consider inheriting America's leading role. China, invariably mentioned as America's prospective successor, has an impressive imperial
lineage and a strategic tradition of carefully calibrated patience, both of which have been critical to its overwhelmingly successful, several-
thousand-year-long history. China thus prudently accepts the existing international system, even if it does not view the prevailing hierarchy as
permanent. It recognizes that success depends not on the system's dramatic collapse but on its evolution toward a gradual redistribution of power.
Moreover, the basic reality is that China is not yet ready to assume in full America's role in the world . Beijing's leaders
themselves have repeatedly emphasized that on every important measure of development, wealth, and power, China will still be a
modernizing and developing state several decades from now, significantly behind not only the United States but also
Europe and Japan in the major per capita indices of modernity and national power. Accordingly, Chinese leaders have
been restrained in laying any overt claims to global leadership. At some stage, however, a more assertive Chinese
nationalism could arise and damage China's international interests. A swaggering, nationalistic Beijing would unintentionally
mobilize a powerful regional coalition against itself. None of China's key neighbors -- India, Japan, and Russia -- is ready to
acknowledge China's entitlement to America's place on the global totem pole. They might even seek support from a waning
America to offset an overly assertive China. The resulting regional scramble could become intense, especially given
the similar nationalistic tendencies among China's neighbors. A phase of acute international tension in Asia could
ensue. Asia of the 21st century could then begin to resemble Europe of the 20th century -- violent and bloodthirsty. At
the same time, the security of a number of weaker states located geographically next to major regional powers also depends on the
international status quo reinforced by America's global preeminence -- and would be made significantly more vulnerable in
proportion to America's decline. The states in that exposed position -- including Georgia, Taiwan, South Korea, Belarus, Ukraine,
Afghanistan, Pakistan, Israel, and the greater Middle East -- are today's geopolitical equivalents of nature's most endangered
species. Their fates are closely tied to the nature of the international environment left behind by a waning America, be
it ordered and restrained or, much more likely, self-serving and expansionist. A faltering United States could also
find its strategic partnership with Mexico in jeopardy. America's economic resilience and political stability have so far mitigated
many of the challenges posed by such sensitive neighborhood issues as economic dependence, immigration, and the narcotics trade. A decline
in American power, however, would likely undermine the health and good judgment of the U.S. economic and
political systems. A waning United States would likely be more nationalistic, more defensive about its national
identity, more paranoid about its homeland security, and less willing to sacrifice resources for the sake of others'
development. The worsening of relations between a declining America and an internally troubled Mexico could even give rise to a particularly
ominous phenomenon: the emergence, as a major issue in nationalistically aroused Mexican politics, of territorial claims justified by history and
ignited by cross-border incidents. Another consequence of American decline could be a corrosion of the generally
cooperative management of the global commons -- shared interests such as sea lanes, space, cyberspace, and the
environment, whose protection is imperative to the long-term growth of the global economy and the continuation of
basic geopolitical stability. In almost every case, the potential absence of a constructive and influential U.S. role would
fatally undermine the essential communality of the global commons because the superiority and ubiquity of
American power creates order where there would normally be conflict . None of this will necessarily come to pass. Nor is the
concern that America's decline would generate global insecurity, endanger some vulnerable states, and produce a more troubled North American
neighborhood an argument for U.S. global supremacy. In fact, the strategic complexities of the world in the 21st century make such supremacy
unattainable. But those dreaming today of America's collapse would probably come to regret it. And as the world after America would be
increasingly complicated and chaotic, it is imperative that the United States pursue a new, timely strategic vision for its foreign policy --
or start bracing itself for a dangerous slide into global turmoil.
Agency Deference Advantage
Version 1.0 - Agency Deference Econ, lashout impact

Advantage # __ is Agency Deference

Trumps election meant legal setbacks for Grimms pro-trans- position. But ironically the legal questions
from the Grimm case can now be used to set precedents against deference to Trumps Executive agencies.
Shapiro 17
et al; Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court
Review. He holds an AB from Princeton University, an MSc from the London School of Economics, and a JD from the
University of Chicago Law School. He has contributed to a variety of academic, popular, and professional publications, including
the Wall Street Journal, Harvard Journal of Law & Public Policy, L.A. Times, USA Today, Weekly Standard, New York Times
Online, and National Review Online. He also regularly provides commentary for various media outlets, including CNN, Fox
News, ABC, CBS, NBC, Univision and Telemundo, the Colbert Report, and NPR. Gloucester County School Board v.
G.G.: Judicial Overdeference Is Still a Massive Problem - Federalist Society Review, Volume 18 March 23rd
Modified for potentially objectionable language - #CutWithKirby - http://www.fed-soc.org/publications/detail/gloucester-county-
school-board-v-gg-judicial-overdeference-is-still-a-massive-problem

In early March , the Supreme Court punted the transgender bathroom-access case Gloucester County School Board v.
(Grimm) G.G., probably the highest-profile case of the term , back down to the U.S. Court of Appeals for the Fourth
Circuit.[1] The Trump administration had recently rescinded the Department of Education (DOE) guidance letters at the heart of
the lawsuit,[2] so the Court wanted the parties and the lower court to reevaluate the case in light of the new development. But
while the future of this particular litigationand whether it will return to the high courtmay now be uncertain, the
core legal questions about how much deference courts should give administrative agency determinations remain as
live as ever. Notably, Judge Neil Gorsuch, the presumptive next justice, has made a name for himself as a critic of judicial deference to
executive agencies.[3] There is also legislation pending in the Senatecommonly known as the REINS Actthat would require congressional
approval of any new major regulation.[4] If
anything, the debate over judicial deference doctrines is only heating up, and the
arguments made in Gloucester County will continue to be relevant for some time.
Heres how the issue was joined here: Title IX, part of the U.S. Education Amendments of 1972, was passed to ensure that schools and
universities did not discriminate on the basis of sex. It states that [n]o person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial
assistance.[5] The statute itself allows for certain exceptions to this prohibition, and its implementing regulations have always allowed schools to
provide separate toilet, locker room, and shower facilities on the basis of sex.[6] This regulation has been uncontroversial for most of its
history, and the traditional reading of the exceptioninterpreting sex to refer to the biological difference (particularly regarding reproductive
organs) between males and femaleswas never challenged before the present litigation.
Gavin Grimm (G.G.), at the time of the events relevant to this litigation, was a student at Gloucester High School in Virginia.
Grimm was born biologically female but has identified as a boy from about the age of 12. He remains biologically female, though he is on
hormone therapy. This case arose from Grimms opposition to the school boards policy of not allowing him to use the
boys restroom and locker room (although he was given access to private unisex bathrooms open to all students). Upon hearing of the
controversy from a transgender-rights activist, a Department of Education Office of Civil Rights (OCR) employee named James A. Ferg-Cadima
sent a letter to the activist stating that Title IX . . . prohibits recipients of Federal financial assistance from discriminating on the basis of sex,
including gender identity.
Grimm then sued the school board, alleging that its policy violated Title IX and the Fourteenth Amendments Equal Protection Clause.
The Department of Justice (DOJ) filed a statement of interest, holding the Ferg-Cadima letter out as the controlling interpretation of Title IX
and its implementing regulations. The district court refused to give controlling deference to the letter, and Grimm appealed to the Fourth Circuit.
The Fourth Circuit reversed the district courts dismissal, affording the OCRs interpretation of the regulation Auer deference
(the near-absolute deference courts give to agency interpretations of their own regulations). Indeed, the Fourth
Circuits deference to the Ferg-Cadima letter was outcome-determinative. Without such deference, the court
acknowledged, the interpretation was perhaps not the intuitive one.[7]
Following the Fourth Circuits ruling, federal officials in the DOE and DOJ issued a Dear Colleague letter to every Title IX
recipient[] of Federal financial assistance in the country, affirming and expanding on the contents of the Ferg-Cadima letter.
The school
board sought Supreme Court review, which was granted October 28, 2016.
On February 22, 2017, the new Trump administrations DOE rescinded both the Ferg-Cadima letter and the Dear
Colleague letter. After considering briefing from the parties on how to proceed, the Supreme Court vacated the Fourth Circuit
ruling and remanded the case back to that court for further consideration. The Fourth Circuit hadnt decided the Title IX
statutory-interpretation question, so the Court is allowing it to do so in the first instance.
While advocates on both sides of this contentious cultural issue may have wished to draw the Court into their debates over the nature of sexuality,
the more straightforward legal pathbefore the withdrawal of the OCR guidancewould simply have been to reverse the Fourth Circuits
deference to the Ferg-Cadima letter and leave the arguments over privacy and nondiscrimination to other forums. Judicial deference to
informal agency statements of this sortstatements that have not been tested in notice-and-comment rulemakingundermines the
separation of powers, defeats the purposes of notice-and-comment as set forth in the Administrative Procedure Act, thwarts the protections
of judicial review of agency rulemaking, and encourages regulatory brinkmanship without full consideration of congressional will or practical
consequences. Notice-and-comment rulemaking has a purpose. Auer deference to informal agency opinions is antithetical to that purpose.
We take no position here on Title IXs definition of discrimination on the basis of sex, the meaning of the statutes exception for separate
living facilities for the different sexes, or the meaning of OCR regulations extending that exception to bathrooms, locker rooms, showers, or
sports teams.[8] Congressional and administrative hearingsand public discourse more generallyare the best ways for our society to ruminate
on such novel questions. A letter written by a low-level bureaucrat is not. Acting Deputy Assistant Secretary of Policy Ferg-Cadima may be the
wisest man since Solomonor notbut our system of legislation and regulation is not dependent on the Solomonic wisdom of acting deputy
assistant secretaries.
The deference issues in this case are important because process matters . Those who hold the reins of political power
will not always be benevolent, self-restrained public servants, and the procedural safeguards that seem frustrating and
counterproductive in one instance may very well be necessary bulwarks against arbitrariness or oppression in another.
As anyone who has lived in a hurricane-prone area can attest, the right time to board up your windows is before the storm hits,
not after theyve already been shattered.

A ruling in favor of Grimm sets a precedent that will broadly hamper unfettered agency deference.
Cleveland 17
Margot Cleveland is an Adjunct Professor and Instructor for the University of Notre Dame whose work often touches on issues
related to business, economics, and legal issues. The author is also a lawyer and holds a JD from the University of Notre Dame.
The Grimm Transgender Case Is What Happens When Unelected Bureaucrats Make Law The Federalist - March 14, 2017
Modified for potentially objectionable language - #CutWithKirby - http://thefederalist.com/2017/03/14/grimm-transgender-case-
happens-unelected-bureaucrats-make-law/

When the Supreme Court announced last week it would no longer hear (take up) Gavin Grimms transgender bathroom case,
competing narratives quickly emerged: LGBT rights versus local control. These dueling storylines miss the larger lesson
about the real culprit in so many of these high-profile culture wars cases: the uncontrollable administrative state.
After all, nothing had changed since the Fourth Circuit ruled last year that a Virginia school board must allow Grimm, a biological female
who suffers from gender dysphoria, to use the boys bathroom. Yet the Supreme Court not only dismissed the appeal but also sent Grimms case
back for the Fourth Circuit to reconsider. Nothing had changed, that is, except the reigning president and guidance issued by his
administrative overlords.
Were Arguing about Opposite Interpretations of Law
Before we go there, lets do a brief review. The law at issue, Title IX, hasnt changed since Congress passed that statute in 1972. It quite simply
provides: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial assistance . . . .
Since 1975, federal regulations from the Department of Education, the federal agency charged with enforcing Title IX, have authorized schools to
provide separate toilet, locker room, and shower facilities on the basis of sex, so long as the facilities provided for students of one sex [are]
comparable to such facilities provided for students of the other sex.
Fast-forward 40 years: On May 13, 2016, the Obama departments of Justice and Education issued a joint letter stating: The
Departments treat a students gender identity as the students sex for purposes of Title IX and its implementing regulations. This means that a
school must not treat a transgender student differently from the way it treats other students of the same gender
identity.
The Fourth Circuit relied to this letter to hold that the local school board had violated Title IX by refusing to allow Grimm to use the boys
bathroom. After losing in the appellate court, the school board had sought review in the Supreme Court. The Supreme Court agreed to hear the
appeal and had scheduled oral argument for later this month.
But the transfer of power following Trumps inauguration handed over the presidential pen. And what the pen giveth, the
pen taketh away. On February 22, 2017 with a brief two-page letter, the Trump administration withdrew and rescinded the May 13, 2016
letter. With a mere (electronic) signature, then, the Trump administration jettisoned the Fourth Circuits sole justification for ruling in Grimms
favor. With the Obama administrations guidance rescinded, the Supreme Court summarily disposed of Grimms appeal, sending the case back to
the Fourth Circuit, which will now need to decide anew the outcome given this change in circumstance.
This Way of Governing Lets Agencies Effectively Make Law
If rule by bureaucratic decree seems a strange procedure for a constitutional republic, it should. Therein lies the true import of Grimm: not the
the Grimm case lays bare is disquieting: Grimm exposes the
battle of competing rights, but the power of our adminstrative state. What
charade used to justify the deference afforded federal agencies that they possess subject-matter expertise.
The Grimm case began and ended with deference. Not to the Constitution. Not to the applicable statute, Title IX. Not even a regulation. But
deference, a judicial genuflection, to the views of unelected, unaccountable so-called experts. This deference to an agencys interpretation of its
own ambiguous regulations was mandated by the Supreme Courts 1997 decision in Auer v. Robbin. The court justified this with the
specialized subject-matter expertise administrative agencies supposedly possess.
But it is pure folly to believe that interpreting the word sex requires any expert or specialized knowledge. It is beyond parody to claim that the
Department of Justice, the Department of Education, and the Equal Employment Opportunity Commissionall distinct federal agencies that
have reinterpreted sex to include sexual identitypossess the same specialized knowledge. Further, if the word sex, as used in Title IX and its
implementing regulations, is ambiguous there is truly no limit to what an agency could redefine under the auspices of expertise.
It is the absurdity of deferring to a federal agencys view of the law based on a purported subject-matter expertise that merits the press and
publics focus, not the transgender angle, because Grimm exposes the too-long ignored reality: The administrative state does not
have an expertise. It has a political agenda.
Bureaucrats Have Power, and Power Corrupts
The Grimm case also bares the administrative states stealth attack on our constitutional framework. Americas founders devised this framework
to fetter the federal government, and the presidency in particular, to prevent the republic from turning into anything like tyranny.
The rise of the administrative staterule by unelected, unchecked executive-branch bureaucratsover the last 100 years has rendered our
republic a mere sliver of the Founders vision. As Chief Justice John Roberts put it in his dissent in City of Arlington, Texas v. FCC: The
Framers could hardly have envisioned todays vast and varied federal bureaucracy and the authority administrative agencies now hold over our
economic, social, and political activities. [T]he administrative state with its reams of regulations would leave them rubbing their eyes.
This modern reality exists because, while the Constitution established three co-equal branches of government, each with specific and limited
powers designed to check the other branches, the executive branch has, as Supreme Court nominee Neil Gorsuch put it, swallow[ed] huge
amounts of core judicial and legislative power. Simultaneously, the judicial and legislative branches have abdicated their constitutionally
appointed roles to check the abuse of executive power.
The Grimm case should open the publics eyes to constitutional modernity. While Congress properly exercised its legislative powers in passing
Title IX in 1972 to prohibit sex discrimination, the Fourth Circuit in Grimm did not rely on that statute. Instead, it ruled in favor of Grimm based
solely on a letter from two federal agencies. The Grimm decision thus simultaneously showcased the executive branchs
overreach its making of new laws and the judicial branchs abdication of its duty to interpret the law.
The Supreme Courts dismissal of Grimms appeal should cement this disturbing reality in the publics conscience. Think
about it: The Supreme Court of the United Statesthe highest court in the land, the final arbiter of the law, which emphatically has the
province and duty to say what the law is tiptoed off, stage left, once the new president entered reciting a different soliloquy.
This result should disturb any lover of freedom, whether he (one) supported former President Obamas interpretation of Title
IX or the current administrations more circumspect position. Lets hope the Grimm case can finally bring the
administrative states attack on liberty into focus.

Trumps deregulatory agenda left unchecked collapses the global economy---overwhelms resilience because
interest rates are already low and governments cant deficit-spend
Chu 17
Ben - Economics Editor for The London Independent, 1/20/17, Donald Trump's first gift to the world will be
another financial crisis, http://www.independent.co.uk/voices/donald-trump-inauguration-first-thing-to-do-gift-to-
world-republican-financial-crisis-recession-a7536706.html
However its calculated, the cost of the global financial crisis was colossal . And we still bear its scars. We are all significantly poorer
today because of the stupidity, greed, irresponsibility and, often, downright criminality of a small band of financiers, mostly based in Wall
Street and the City of London, whose behaviour combined to push the global financial system to the brink of total
collapse . And we should be scared out of our wits over the possibility of a repeat .
But Donald Trump doesnt seem perturbed. Instead, the incoming President of the United States gives every impression that he will soon be
hustling America and possibly the entire world in the direction of another catastrophic financial crisis.
Dodd-Frank was the banking and financial reform legislation passed by Congress in the wake of the 2008 fiasco . As a
reform it was grossly inadequate. The gravest failure was that it did not split up the giant too-big-to-fail banks of Wall Street the likes of JP
Morgan, Morgan Stanley, Bank of America and Goldman Sachs something that was necessary to abolish their neon-illuminated conflicts of
interest and to prevent them from being able to shake down the US government again if their market funding dried up.
Yet Dodd-Frank was better than nothing. Far better than nothing. It did prevent investment banks making massive and dangerous
bets with their own money. And it did tighten up on consumer protection, putting a stop to some of the more obvious
opportunities for bankers to enrich themselves by misselling financial products to the unwitting American public.
But Trump doesnt like Dodd-Frank. During his campaign he promised to dismantle the legislation, without ever giving a coherent
reason why.
Trump posed as the champion of the forgotten men and women of America on the campaign stump and did not take much money from Wall
Street, certainly relative to previous Republican candidates. He paraded himself as the worst nightmare of the corrupt big money lobby.
But it was a con. Since vanquishing Hillary Clinton in Novembers election Trump has, in fact, been the financial lobbys wet dream.
He has packed his administration and senior advisory team with former Wall Street financiers, many of them from
Goldman Sachs.
And they have not disguised their agenda. Trumps
Wall Street picks have talked about deregulating derivative trading,
allowing investment banks to make big bets with their own money again, allowing investments in hedge funds,
reducing capital and liquidity requirements and dismantling the ability of regulators to supervise the sprawling
shadow banking system. It is as if 2008 never happened.
Ifthe Trump administration does just half of what it says its going to do in economic policy and financial
regulation, another financial crash is almost certain and sooner rather than later , is the informed
verdict of Dennis Kelleher, the head of the Better Markets think tank .
The share price of American bank stocks took off like fizzing fireworks after Trumps shock November victory. Traders expect Trump to
deliver an aggressive deregulation. Expect the lobbying for a parallel deregulation in London and Europe to become irresistible shortly
after.
This time it threatens to be worse . Our defences are much weaker than eight years ago . During the
last crash central banks cut interest rates from around 5 per cent to zero and bought up trillions of dollars of bonds and
loans to stabilise the system. Governments spent vast amounts of public money to stop banks going bust and
devastating the wider economy.
But today interest rates across the developed world are still close to zero and government debt is much higher than it
was in 2008, giving policymakers considerably less room for manoeuvre if the system fails again.
The bottom line is that we cant afford another financial crisis. Yet, thanks to Trump, one may well be coming .

Economic collapse causes extinction


Auslin 9 Michael Auslin, Resident Scholar at the American Enterprise Institute, and Desmond Lachman, Resident
Fellow at the American Enterprise Institute, The Global Economy Unravels, Forbes, 3-6,
http://www.aei.org/article/100187
What do these trends mean in the short and medium term? The Great Depression showed how social and global chaos followed hard on
economic collapse. The mere fact that parliaments across the globe, from America to Japan, are unable to make responsible, economically
sound recovery plans suggests that they do not know what to do and are simply hoping for the least disruption. Equally worrisome is the adoption
of more statist economic programs around the globe, and the concurrent decline of trust in free-market systems. The threat of instability is
a pressing concern. China, until last year the world's fastest growing economy, just reported that 20 million migrant laborers lost their jobs.
Even in the flush times of recent years, China faced upward of 70,000 labor uprisings a year. A sustained downturn poses
grave and possibly immediate threats to Chinese internal stability. The regime in Beijing may be faced with a choice of
repressing its own people or diverting their energies outward, leading to conflict with China's neighbors. Russia, an oil state completely
dependent on energy sales, has had to put down riots in its Far East as well as in downtown Moscow. Vladimir Putin's rule has
been predicated on squeezing civil liberties while providing economic largesse. If that devil's bargain falls apart, then wide-scale repression
inside Russia, along with a continuing threatening posture toward Russia's neighbors, is likely. Even apparently stable
societies face increasing risk and the threat of internal or possibly external conflict. As Japan's exports have plummeted by nearly 50%, one-third
of the country's prefectures have passed emergency economic stabilization plans. Hundreds of thousands of temporary employees hired during
the first part of this decade are being laid off. Spain's unemployment rate is expected to climb to nearly 20% by the end of 2010; Spanish unions
are already protesting the lack of jobs, and the specter of violence, as occurred in the 1980s, is haunting the country. Meanwhile, in Greece,
workers have already taken to the streets. Europe as a whole will face dangerously increasing tensions between native citizens and
immigrants, largely from poorer Muslim nations, who have increased the labor pool in the past several decades. Spain has absorbed five million
immigrants since 1999, while nearly 9% of Germany's residents have foreign citizenship, including almost 2 million Turks. The xenophobic labor
strikes in the U.K. do not bode well for the rest of Europe. A prolonged global downturn, let alone a collapse, would
dramatically raise tensions inside these countries. Couple that with possible protectionist legislation in the United States,
unresolved ethnic and territorial disputes in all regions of the globe and a loss of confidence that world leaders actually know
what they are doing. The result may be a series of small explosions that coalesce into a big bang .

Independently, unchecked Trump economic agenda causes U.S. lash-out and nuclear escalation
Street 16
Tim - Fellow of the Sustainable Security Programme at the Oxford Research Group, previously researcher with the
British American Security Information Council, Ph.D. from Warwick University, 11/30/16, President Trump:
Successor to the Nuclear Throne,
http://www.oxfordresearchgroup.org.uk/publications/briefing_papers_and_reports/president_trump_successor_nucle
ar_throne
Donald Trumps arrival in the White House as US President has deeply unnerved people from across the political spectrum, both inside the US
and around the world. The fact that many regard Trump as an indecent individual and his government as potentially the number one threat to their
dignity, liberty and life means that the civil strife already raging in the US is unlikely to fade away soon. The wide-ranging implications of
Trumps election to the most powerful office on Earthfor the peace and stability of both that nation and the world cannot be
emphasised enough. In this regard, of the many uncertainties and worries brought on by a Trump presidency, the two
existential questions of climate change and nuclear war stand out.
With the former, Trumps recent comment that he now has an open mind about the importance of the Paris climate agreementhaving
previously said climate change is a hoaxis unlikely to assuage fears that he will seek to dramatically expand the USs extraction and reliance
on fossil fuels. With the latter, strong doubts have been raised over whether the new President is capable of responsibly handling the incredible
power that will be at his fingertips. Moreover, several commentators are already raising concerns that a Trump administration will
pursue policies that will aggravate and disappoint his supporters, a situation that could increase the possibility
of the US engaging in a diversionary war .
In order to consider what we can expect from a Trump presidency, as well as noting whom Trump empowers as members of his cabinet and those
whom he draws on for advice, it is vital to study the track record of recent administrations and appreciate the powers Trump will inherit. In doing
so this briefing focuses on the question of what a Trump presidency might mean for international relations with a focus on nuclear arms,
including doctrine and disarmament. This means reviewing policies relevant to the USs nuclear arsenal and pressing international challenges
such as non-proliferation, including in East Asia and the Middle East, as well as the USs relationship with Russia and its role in NATO.
The power and responsibilities of the nuclear monarch
The US President is solely responsible for the decision to use the near- unimaginably destructive power of the
nations nuclear arsenal. Thus, as Bruce Blaira former intercontinental ballistic missile launch control officermakes clear, Trump
will have the sole authority to launch nuclear weapons whenever he chooses with a single phone call. The wider political
meaning of the bomb for the world is aptly summarised by Daniel Deudney, who describes nuclear weapons as intrinsically despotic so that
they have created nuclear monarchies in all nuclear-armed states. Deudney identifies three related reasons for this development: the speed of
nuclear use decisions; the concentration of nuclear use decision into the hands of one individual; and the lack of accountability stemming from
the inability of affected groups to have their interests represented at the moment of nuclear use.
Similarly, Elaine Scarry has explained in stark terms in her 2014 book Thermonuclear Monarchy: Choosing between Democracy and Doom, how
the possession of nuclear weapons has converted the US government into a monarchic form of rule that places all defense in the executive
branch of government leaving the population incapacitated. In response to this situation, Scarry argues that the American people must use the
Constitution as a tool to dismantle the US nuclear weapons system, thereby revitalising democratic participation and control over decision-
making. Scarry also outlines the incredible might the president wields, with each of the USs fourteen nuclear-armed sub marine s
alone carrying enough power to destroy the people of an entire continent , equivalent to eight times the full-blast power
expended by Allied and Axis countries in World War II. Nuclear specialist Hans Kristensen has described how the USs strategic nuclear war
plan if unleashed in its full capacity could kill hundreds of millions of people, devastate entire nations, and cause climatic effects on a global
scale.
This war plan consists of a family of plans that is aimed at six potential adversaries whose identities are kept secret. Kristensen understands that they include potentially hostile countries with nuclear, chemical, and biological
weapons (WMD), meaning China, North Korea, Iran, Russia and Syria as well as a terrorist group backed by a state that has conducted a catastrophic WMD attack. The dominant mission for US nuclear weapons within these plans
is termed counterforce, meaning strikes on military, mostly nuclear, targets and the enemys leadership.
Despite these plans, the USs nuclear arsenal is often described by mainstream commentators as being solely intended to ensure mutual assured destruction (MAD), i.e. as part of the balance of terror with Russia, in order to prevent
armed conflict between the two nations and to ensure a response in kind to a surprise nuclear attack. However, as Joseph Gerson and John Feffer explain, rather than deterrence just being about enough nuclear forces surviving a
surprise first strike attack to ensure MAD, US military planners have also understood it to mean preventing other nations from taking courses of action that are inimical to US interests.
David McDonough thus describes the long-standing goal of American nuclear war-planners as being the achievement of the ability to launch a disarming first-strike against an opponent- otherwise known as nuclear superiority. This
has been magnified in recent years as the US seeks to prevent or rollback the ability of weaker statesboth nuclear and non-nuclear powersto establish or maintain a deterrence relationship. Taking all this into account, the new
commander-in-chiefs apparently volatile temperament thus raises deep concerns since his finger will be on the nuclear trigger as soon as he assumes office on 20th January 2017. Given his past experience, Bruce Blairs statement
that he is scared to death by the idea of a Trump presidency is but one further reason why urgent discussion and action, both in the US and globally, on lessening nuclear dangersand reviving disarmamentis vital. A recent report
by the Ploughshares Fund on how the US can reduce its nuclear spending, reform its nuclear posture and restrain its nuclear war plans should thus be required reading in Washington.
However, as the Economist has rightly noted, It is not Mr Trumps fault that the system, in which the vulnerable land-based missile force is kept on hair-trigger alert, is widely held to be inherently dangerous since, as they point out,
no former president, including Barack Obama, has done anything to change it. Over sixty years after the nuclear attacks on Hiroshima and Nagasaki, nuclearism thus remains very much embedded in the nations strategic thinking.
Yet the election of Obama, and the rhetoric of his 2009 Prague speech, in which he stated America's commitment to seek the peace and security of a world without nuclear weapons led many to think that a real change was on the
cards.
Obamas visit to Hiroshima earlier this year to commemorate the bombings was thus a painful reminder of how wide the gap is between the rearmament programmes that the US and other nuclear weapon states are engaged in and the
disarmament action that they are legally obliged to pursue under the nuclear non-proliferation treaty (NPT). Obama himself said in Japan that, technological progress without an equivalent progress in human institutions can doom us.
The scientific revolution that led to the splitting of an atom requires a moral revolution as well. For this statement to be meaningful it is necessary to identify who is responsible for the existing, highly dangerous state of affairs. In
short, the US governments recent record supports Scarrys suggestion that a democratic revolution is what, in reality, is most needed if the US is to make substantial progress on nuclear non-proliferation and disarmament. Short-term
reforms towards the democratic control and ultimate dismantlement of the USs nuclear arsenal have been outlined by Kennette Benedict, who writes that the next administration should:
place our nuclear weapons on a much lower level of launch readiness, release to the public more information about the nuclear weapons in our own arsenals, include legislators and outside experts in its nuclear posture review and
recognize Congress authority to declare war as a prerequisite to any use of nuclear weapons.
Assessing Obamas nuclear legacy
In order to properly appreciate what a Trump presidency may bring, we need to revisit the range and types of powers bequeathed to the commander-in-chief by previous administrations. Despite the military advances made by China
and Russia in recent years, it is important to recognise that the US remains far and away the biggest global spender on conventional and nuclear weapons and plans to consolidate this position by maintaining significant technological
superiority over its adversaries, which will, as is well appreciated, push Beijing, Moscowand thus other regional powersto respond. Yet spending on nuclear weapons alone is set to pose significant budgeting difficulties for future
US governments.
According to a 2014 report by the James Martin Center, the Departments of Defense and Energy plan to spend approximately $1 trillion over the next 30 years to maintain its current nuclear arsenal and procure a new generation of
nuclear-armed or nuclear capable bombers and submarines as well as new submarine launched ballistic missiles (SLBMs) and inter-continental ballistic missiles (ICBMs). Arms Control Today has found that total Defense
Department nuclear spending is projected to average more than $40 billion in constant fiscal year 2016 dollars between 2025 and 2035, when modernization costs are expected to peak. Including costs for the Department of Energys
National Nuclear Security Administrations projected weapons-related spending during this period would push average spending during this period to more than $50 billion per year. If anywhere near these sums are spent, then the
modest reductions to the USs nuclear stockpile achieved during the Obama presidency will be entirely overshadowed. Moreover, as analyst Andrew Lichterman notes, the USs continued modernisation of its nuclear forces is
inherently incompatible with the unequivocal undertaking given at the 2000 NPT Review Conference to eliminate its nuclear arsenal and apply the principle of irreversibility to this and related actions.
For Lichterman, the huge outlays committed to the nuclear weapons complex were part of a political bargain made by the Obama administration with Republicans. This ensured that the New START nuclear arms control treaty
would pass in the Senate whilst also not disturbing the development of missile defense and other advanced conventional weapons programmes. New START is a bilateral agreement between Russia and the US, which Steven Pifer
describes as one of the few bright spots that exists in these nations relationship. Under the treaty Moscow and Washington must, by 2018, reduce their stockpile of operationally deployed strategic nuclear warheads to 1,550.
Furthermore, both must keep to a limit of 700 deployed strategic launchers (missiles) and heavy bombers, and to a combined limit of 800 deployed and non-deployed strategic launchers and heavy bombers.
Despite New START proceeding smoothly according to Pifer, Hans Kristensen recently produced a report comparing Obamas record with that of the previous presidents holding office during the nuclear age, which found that,
hitherto, Obama has cut fewer warheadsin terms of numbers rather than percentagesthan any administration ever and that the biggest nuclear disarmers in recent decades have been Republicans, not Democrats. Kristensen thus
drily observes of this situation that,
a conservative Congress does not complain when Republican presidents reduce the stockpile, only when Democratic president try to do so. As a result of the opposition, the United States is now stuck with a larger and more expensive
nuclear arsenal than had Congress agreed to significant reductions.
As his presidency draws to a close, presumably as a means of securing some sort of meaningful legacy in this area, it has been reported that Obama considered adopting a no first use (NFU) policy for nuclear weapons, something
which, whilst reversible, could act as a restraint on future presidents. Yet this was apparently abandoned, according to the New York Times, after top national security advisers argued that it could undermine allies and embolden
Russia and China. Furthermore, according to Josh Rogin of the Washington Post, the governments of Japan, South Korea, France and Britain all privately communicated their concerns about Washington adopting NFU. Defense
Secretary Ashton Carter is also said to have argued that such a move would be unwise because if North Korea used biological weapons against the South the United States might need the option of threatening a nuclear response.
However, as Daryll Kimball explains, the USs overwhelming conventional military advantage means that there is no plausible circumstance that could justifylegally, morally, or militarilythe use of nuclear weapons to deal
with a non-nuclear threat. Such resistance to NFU is thus deeply disappointing given that, as Kimball goes on to note, this move would go some way to reassuring China and Russia about the USs strategic intentions. It would also be
an important confidence-building measure for the wider community of non-nuclear weapon states, showing that the US is willing to act in 'good faith' towards its disarmament obligations under the NPT.
Thinking about the causes of proliferation more widely requires us to understand what drives weaker states to seek deterrents, if their reliance on them is to be reduced. For example, as Dr Alan J. Kuperman observes, NATOs
bombing and overthrow of Libyan leader Muammar Gaddafi in 2011 greatly complicated the task of persuading other states such as Iran and North Korea to halt or reverse their nuclear programs. The lesson Tehran and Pyongyang
took is thus that because Gaddafi had voluntarily ended his nuclear and chemical weapons programmes, the West now felt free to pursue regime change. When assessing the importance of the Iran nuclear deal, which is often hailed as
one of Obamas landmark achievements, and which the next President must not be allowed to derail, it is thus important also to consider carefully what behaviour by the most powerful states will enable existing or potential nuclear
possessors to embrace disarmament and reduce their interest in seeking non-conventional deterrents.
The inability of Washington to make substantial progress towards reducing the salience of nuclear weapons at home and abroad is all the more noteworthy when one considers the state of US and Russian public opinion on nuclear
arms control and disarmament. As John Steinbrunner and Nancy Gallagher observe, responses to detailed questions reveal a striking disparity between what U.S. and Russian leaders are doing and what their publics desire. For
example, their polling found that:
At the most fundamental level, the vast majority of Americans and Russians think that nuclear weapons have a very limited role in current security circumstances and believe that their only legitimate purpose is to deter nuclear attack.
It is highly consistent, then, that the publics in both countries would favor eliminating all nuclear weapons if this action could be taken under effective international verification.
Another important measure which the US has failed to hitherto ratify is the Comprehensive Test Ban Treaty (CTBT). This is despite President Obama stating in 2009 that he intended to pursue Senate ratification of the treaty
immediately and aggressively. Once more, there is notably strong public support82% according to a 2010 poll by the Chicago Council on Global Affairsfor the US joining the CTBT but, again, the Republican-controlled Senate
has blocked the treaty at every opportunity.
Overall, the gap between the publics will and the governments inaction on nuclear issues is alarming and redolent of the wider democratic deficit in the US. On a more positive note, the fact that the citizenry supports such measures
suggests that groups advocating arms control and disarmament initiatives should continue to engage with and understand the publics positions in order to effectively harness their support.
Stepping back from the brink
In terms of priorities for the incoming administration in the US, stepping back from military confrontation with Russia and pushing the threat of
nuclear war to the margins must be at the top of the list. Whilst much has been made of a potential rapprochement between Trump and Putin, the
two have, reportedly, only just spoken for the first time on the phone and still need to actually meet in person to discuss strategic issues and deal
with inevitable international events and crises, including in relation to Ukraine and Syria. As of now, whilst the mood music from both sides
might suggest a warming of relations, as has been seen with previous administrations, unless cooperation is rooted in a real willingness to resolve
problems (which for Russia includes US ballistic missile defense deployments in Eastern Europe and NATO expansion) then tensions can
quickly re-emerge. Another related question
concerns how Trump will conduct himself during any potential crisis or
conflict with Russia or another major power , given the stakes and risks involved, as highlighted above.
Whilst we must wait to find out precisely what the new administrations approach to international affairs will be, in the past week, NATOs
Secretary General Jens Stoltenberg told the BBC that he had been personally informed by Donald Trump, following the election, that the US
remains strongly committed to NATO, and that the security guarantees to Europe stand. Trump had previously shaken sections of the defence
and foreign policy establishment by suggesting that NATO was obsolete and that countries such as Japan (and by extension others such as
South Korea and Saudi Arabia) have to pay us or we have to let them protect themselves, which could include them acquiring the bomb. One
reason why some in Washington have, in the past, not wanted their regional allies to develop their own nuclear weapons is because the US might
then become dragged into an escalating conflict. Moreover, if an ally in one region seeks the bomb, this may cause others elsewhere to pursue
their own capabilities- an act of strategic independence that might make these states harder to influence and control.
The USs key relationships in East Asia and the Middle East illustrate why, if a future US President wishes to take meaningful moves towards a
world free of nuclear weapons, then developing alternative regional political agreements, including strategic cooperation with China and Russia,
will be necessary. As Nancy Gallagher rightly notes, the weaknesses of existing international organizations thus requires more inclusive,
cooperative security institutions to be constructed regionally to complement and someday, perhaps, to replace exclusive military alliances,
alongside progressive demilitarisation. Such confidence-building measures would also support efforts to halt missile and nuclear tests by states
such as North Korea, which may soon be capable of striking the US mainland.
Imagining the next enemy
As well as mapping out the USs current nuclear weapons policies and its regional relationships, it is important to reflect upon how
domestic
political dynamics under a Trump presidency might drive Washingtons behaviour internationally, particularly
given the nuclear shadow that always hangs over conflicts involving the US .
For example, in the near-term, Trumps economic plan and the great expectations amongst the American working class that have been
generated, may have particularly dangerous consequences if, as seems likely, the primary beneficiaries are the very wealthy.
Reviewing Trumps economic plans, Martin Wolf of the Financial Times concludes that the longer-term consequences are
likely to be grim , not least for his angry, but fooled, supporters. Next time, they might be even angrier. Where that might lead
is terrifying. Gillian Tett has also highlighted the real risks that Trumps policies could spark US social unrest or
geopolitical uncertainty. Elsewhere, George Monbiot in the Guardian, makes the stark assertion that the inability of the US and other
governments to respond effectively to public anger means he now believes that we will see war between the major powers
within my lifetime.
If these warnings werent troubling enough, no less a figure than Henry Kissinger argued on BBCs Newsnight that the more likely reaction to a
Trump presidency from terror groups will be to do something that evokes a reaction from Washington in order to widen the split between it
and Europe and damage the USs image around the world. Given that Trump has already vowed to bomb the shit out of ISIS and refused to rule
out the use of nuclear weapons against the group, it goes without saying that such a scenario could have the gravest consequences and must be
avoided so that the US does not play into the terrorists hands.
Looking more widely, President-elect Trumps existing and potential cabinet appointments, which Glenn Greenwald has summarised as
empoweringby and largethe traditional, hard, hawkish right-wing members of the Republican Party also point to the US engaging in future
overseas conflicts, rather than the isolationism which many in the foreign policy establishment criticised Trump for proposing during the
presidential campaign. William Hartung and Todd Harrison have drawn attention to the fact that defence spending under Trump could be almost
$1trillion (spread over ten years) more than Obamas most recent budget request. Such projections, alongside Trumps election rhetoric, suggest
that the new nuclear monarch will try to push wide open the door to more spending on nuclear weapons and missile defense, a situation made
possible, as we have seen, by Obamas inability to implement progressive change in this area at a time of persistent Republican obstruction.
Conclusion
The problem now, for the US and the world, is that if Trump does make good on his campaign promises then this will have
several damaging consequences for international peace and security and that if Trump does not sufficiently satisfy his
supporters then this will likely pour fuel on the flames at home , which may then quickly spread abroad . The people of
the US and the world thus now have a huge responsibility to act as a restraining influence and ensure that the US retains
an accountable, transparent and democratic government. This responsibility will only grow if crises or shocks take
place in or outside the US which ambitious and extremist figures take advantage of, framing them as threats to national security in order to
protect their interests and power. If such scenarios emerge the next administration and its untried and untested President
will find themselves with a range of extremely powerful tools and institutional experience at their disposal, including
nuclear weapons, which may prove too tempting to resist when figuring out how to respond to widespread anger,
confusion and unrest, both at home and abroad.
Version 2.0 - Agency Deference - Hegemony impact

Advantage # __ is Agency Deference

Trumps election meant legal setbacks for Grimms pro-trans~ position. But ironically the legal questions
from the Grimm case can now be used to set precedents against deference to Trumps Executive agencies.
Shapiro 17
et al; Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court
Review. He holds an AB from Princeton University, an MSc from the London School of Economics, and a JD from the
University of Chicago Law School. He has contributed to a variety of academic, popular, and professional publications, including
the Wall Street Journal, Harvard Journal of Law & Public Policy, L.A. Times, USA Today, Weekly Standard, New York Times
Online, and National Review Online. He also regularly provides commentary for various media outlets, including CNN, Fox
News, ABC, CBS, NBC, Univision and Telemundo, the Colbert Report, and NPR. Gloucester County School Board v.
G.G.: Judicial Overdeference Is Still a Massive Problem - Federalist Society Review, Volume 18 March 23rd
Modified for potentially objectionable language - - #CutWithKirby - http://www.fed-soc.org/publications/detail/gloucester-
county-school-board-v-gg-judicial-overdeference-is-still-a-massive-problem

In early March , the Supreme Court punted the transgender bathroom-access case Gloucester County School Board v.
(Grimm) G.G., probably the highest-profile case of the term , back down to the U.S. Court of Appeals for the Fourth
Circuit.[1] The Trump administration had recently rescinded the Department of Education (DOE) guidance letters at the heart of
the lawsuit,[2] so the Court wanted the parties and the lower court to reevaluate the case in light of the new development. But
while the future of this particular litigationand whether it will return to the high courtmay now be uncertain, the
core legal questions about how much deference courts should give administrative agency determinations remain as
live as ever. Notably, Judge Neil Gorsuch, the presumptive next justice, has made a name for himself as a critic of judicial deference to
executive agencies.[3] There is also legislation pending in the Senatecommonly known as the REINS Actthat would require congressional
approval of any new major regulation.[4] If
anything, the debate over judicial deference doctrines is only heating up, and the
arguments made in Gloucester County will continue to be relevant for some time.
Heres how the issue was joined here: Title IX, part of the U.S. Education Amendments of 1972, was passed to ensure that schools and
universities did not discriminate on the basis of sex. It states that [n]o person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial
assistance.[5] The statute itself allows for certain exceptions to this prohibition, and its implementing regulations have always allowed schools to
provide separate toilet, locker room, and shower facilities on the basis of sex.[6] This regulation has been uncontroversial for most of its
history, and the traditional reading of the exceptioninterpreting sex to refer to the biological difference (particularly regarding reproductive
organs) between males and femaleswas never challenged before the present litigation.
Gavin Grimm (G.G.), at the time of the events relevant to this litigation, was a student at Gloucester High School in Virginia.
Grimm was born biologically female but has identified as a boy from about the age of 12. He remains biologically female, though he is on
hormone therapy. This case arose from Grimms opposition to the school boards policy of not allowing him to use the
boys restroom and locker room (although he was given access to private unisex bathrooms open to all students). Upon hearing of the
controversy from a transgender-rights activist, a Department of Education Office of Civil Rights (OCR) employee named James A. Ferg-Cadima
sent a letter to the activist stating that Title IX . . . prohibits recipients of Federal financial assistance from discriminating on the basis of sex,
including gender identity.
Grimm then sued the school board, alleging that its policy violated Title IX and the Fourteenth Amendments Equal Protection Clause.
The Department of Justice (DOJ) filed a statement of interest, holding the Ferg-Cadima letter out as the controlling interpretation of Title IX
and its implementing regulations. The district court refused to give controlling deference to the letter, and Grimm appealed to the Fourth Circuit.
The Fourth Circuit reversed the district courts dismissal, affording the OCRs interpretation of the regulation Auer deference
(the near-absolute deference courts give to agency interpretations of their own regulations). Indeed, the Fourth
Circuits deference to the Ferg-Cadima letter was outcome-determinative. Without such deference, the court
acknowledged, the interpretation was perhaps not the intuitive one. [7]
Following the Fourth Circuits ruling, federal officials in the DOE and DOJ issued a Dear Colleague letter to every Title IX
recipient[] of Federal financial assistance in the country, affirming and expanding on the contents of the Ferg-Cadima letter.
The school
board sought Supreme Court review, which was granted October 28, 2016.
On February 22, 2017, the new Trump administrations DOE rescinded both the Ferg-Cadima letter and the Dear
Colleague letter. After considering briefing from the parties on how to proceed, the Supreme Court vacated the Fourth Circuit
ruling and remanded the case back to that court for further consideration. The Fourth Circuit hadnt decided the Title IX
statutory-interpretation question, so the Court is allowing it to do so in the first instance.
While advocates on both sides of this contentious cultural issue may have wished to draw the Court into their debates over the nature of sexuality,
the more straightforward legal pathbefore the withdrawal of the OCR guidancewould simply have been to reverse the Fourth Circuits
deference to the Ferg-Cadima letter and leave the arguments over privacy and nondiscrimination to other forums. Judicial deference to
informal agency statements of this sortstatements that have not been tested in notice-and-comment rulemakingundermines the
separation of powers, defeats the purposes of notice-and-comment as set forth in the Administrative Procedure Act, thwarts the protections
of judicial review of agency rulemaking, and encourages regulatory brinkmanship without full consideration of congressional will or practical
consequences. Notice-and-comment rulemaking has a purpose. Auer deference to informal agency opinions is antithetical to that purpose.
We take no position here on Title IXs definition of discrimination on the basis of sex, the meaning of the statutes exception for separate
living facilities for the different sexes, or the meaning of OCR regulations extending that exception to bathrooms, locker rooms, showers, or
sports teams.[8] Congressional and administrative hearingsand public discourse more generallyare the best ways for our society to ruminate
on such novel questions. A letter written by a low-level bureaucrat is not. Acting Deputy Assistant Secretary of Policy Ferg-Cadima may be the
wisest man since Solomonor notbut our system of legislation and regulation is not dependent on the Solomonic wisdom of acting deputy
assistant secretaries.
The deference issues in this case are important because process matters . Those who hold the reins of political power
will not always be benevolent, self-restrained public servants, and the procedural safeguards that seem frustrating and
counterproductive in one instance may very well be necessary bulwarks against arbitrariness or oppression in another.
As anyone who has lived in a hurricane-prone area can attest, the right time to board up your windows is before the storm hits,
not after theyve already been shattered.

A ruling in favor of Grimm sets a precedent that will broadly hamper unfettered agency deference.
Cleveland 17
Margot Cleveland is an Adjunct Professor and Instructor for the University of Notre Dame whose work often touches on issues
related to business, economics, and legal issues. The author is also a lawyer and holds a JD from the University of Notre Dame.
The Grimm Transgender Case Is What Happens When Unelected Bureaucrats Make Law The Federalist - March 14, 2017
Modified for potentially objectionable language - - #CutWithKirby - http://thefederalist.com/2017/03/14/grimm-transgender-
case-happens-unelected-bureaucrats-make-law/

When the Supreme Court announced last week it would no longer (take on) hear Gavin Grimms transgender bathroom
case, competing narratives quickly emerged: LGBT rights versus local control. These dueling storylines miss the larger
lesson about the real culprit in so many of these high-profile culture wars cases: the uncontrollable administrative state.
After all, nothing had changed since the Fourth Circuit ruled last year that a Virginia school board must allow Grimm, a biological female
who suffers from gender dysphoria, to use the boys bathroom. Yet the Supreme Court not only dismissed the appeal but also sent Grimms case
back for the Fourth Circuit to reconsider. Nothing had changed, that is, except the reigning president and guidance issued by his
administrative overlords.
Were Arguing about Opposite Interpretations of Law
Before we go there, lets do a brief review. The law at issue, Title IX, hasnt changed since Congress passed that statute in 1972. It quite simply
provides: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial assistance . . . .
Since 1975, federal regulations from the Department of Education, the federal agency charged with enforcing Title IX, have authorized schools to
provide separate toilet, locker room, and shower facilities on the basis of sex, so long as the facilities provided for students of one sex [are]
comparable to such facilities provided for students of the other sex.
Fast-forward 40 years: On May 13, 2016, the Obama departments of Justice and Education issued a joint letter stating: The
Departments treat a students gender identity as the students sex for purposes of Title IX and its implementing regulations. This means that a
school must not treat a transgender student differently from the way it treats other students of the same gender
identity.
The Fourth Circuit relied to this letter to hold that the local school board had violated Title IX by refusing to allow Grimm to use the boys
bathroom. After losing in the appellate court, the school board had sought review in the Supreme Court. The Supreme Court agreed to hear the
appeal and had scheduled oral argument for later this month.
But the transfer of power following Trumps inauguration handed over the presidential pen. And what the pen giveth, the
pen taketh away. On February 22, 2017 with a brief two-page letter, the Trump administration withdrew and rescinded the May 13, 2016
letter. With a mere (electronic) signature, then, the Trump administration jettisoned the Fourth Circuits sole justification for ruling in Grimms
favor. With the Obama administrations guidance rescinded, the Supreme Court summarily disposed of Grimms appeal, sending the case back to
the Fourth Circuit, which will now need to decide anew the outcome given this change in circumstance.
This Way of Governing Lets Agencies Effectively Make Law
If rule by bureaucratic decree seems a strange procedure for a constitutional republic, it should. Therein lies the true import of Grimm: not the
the Grimm case lays bare is disquieting: Grimm exposes the
battle of competing rights, but the power of our adminstrative state. What
charade used to justify the deference afforded federal agencies that they possess subject-matter expertise.
The Grimm case began and ended with deference. Not to the Constitution. Not to the applicable statute, Title IX. Not even a regulation. But
deference, a judicial genuflection, to the views of unelected, unaccountable so-called experts. This deference to an agencys interpretation of its
own ambiguous regulations was mandated by the Supreme Courts 1997 decision in Auer v. Robbin. The court justified this with the
specialized subject-matter expertise administrative agencies supposedly possess.
But it is pure folly to believe that interpreting the word sex requires any expert or specialized knowledge. It is beyond parody to claim that the
Department of Justice, the Department of Education, and the Equal Employment Opportunity Commissionall distinct federal agencies that
have reinterpreted sex to include sexual identitypossess the same specialized knowledge. Further, if the word sex, as used in Title IX and its
implementing regulations, is ambiguous there is truly no limit to what an agency could redefine under the auspices of expertise.
It is the absurdity of deferring to a federal agencys view of the law based on a purported subject-matter expertise that merits the press and
publics focus, not the transgender angle, because Grimm exposes the too-long ignored reality: The administrative state does not
have an expertise. It has a political agenda.
Bureaucrats Have Power, and Power Corrupts
The Grimm case also bares the administrative states stealth attack on our constitutional framework. Americas founders devised this framework
to fetter the federal government, and the presidency in particular, to prevent the republic from turning into anything like tyranny.
The rise of the administrative staterule by unelected, unchecked executive-branch bureaucratsover the last 100 years has rendered our
republic a mere sliver of the Founders vision. As Chief Justice John Roberts put it in his dissent in City of Arlington, Texas v. FCC: The
Framers could hardly have envisioned todays vast and varied federal bureaucracy and the authority administrative agencies now hold over our
economic, social, and political activities. [T]he administrative state with its reams of regulations would leave them rubbing their eyes.
This modern reality exists because, while the Constitution established three co-equal branches of government, each with specific and limited
powers designed to check the other branches, the executive branch has, as Supreme Court nominee Neil Gorsuch put it, swallow[ed] huge
amounts of core judicial and legislative power. Simultaneously, the judicial and legislative branches have abdicated their constitutionally
appointed roles to check the abuse of executive power.
The Grimm case should open the publics eyes to constitutional modernity. While Congress properly exercised its legislative powers in passing
Title IX in 1972 to prohibit sex discrimination, the Fourth Circuit in Grimm did not rely on that statute. Instead, it ruled in favor of Grimm based
solely on a letter from two federal agencies. The Grimm decision thus simultaneously showcased the executive branchs
overreach its making of new laws and the judicial branchs abdication of its duty to interpret the law.
The Supreme Courts dismissal of Grimms appeal should cement this disturbing reality in the publics conscience. Think
about it: The Supreme Court of the United Statesthe highest court in the land, the final arbiter of the law, which emphatically has the
province and duty to say what the law is tiptoed off, stage left, once the new president entered reciting a different soliloquy.
This result should disturb any lover of freedom, whether he (one) supported former President Obamas interpretation of Title
IX or the current administrations more circumspect position. Lets hope the Grimm case can finally bring the
administrative states attack on liberty into focus.

Expanding deference is causing congressional gridlock - narrowing forces Congress to overcome partisanship
Lechner 16,
Alfred J. - former judge of the U.S. District Court for the District of New Jersey; president and CEO of the Cause of
Action Institute, 6/9/16, The other driver of congressional gridlock,
http://www.washingtontimes.com/news/2016/jun/9/chevron-deference-a-driver-of-congressional-gridlo/
It is a bedrock principle of Americas founding: Congress, as elected by the people, shall write all laws that govern the United States.
Yet while that principle remains on paper, it has eroded today to a degree likely unrecognizable by the Founding Fathers. In what has come
to be known as Chevron deference a reference to a 1984 Supreme Court case the federal government has found a
powerful tool for expanding the size and reach of government to a scope never intended . And perhaps more importantly, it
is a factor contributing to the congressional gridlock so many Americans bemoan today.
Chevron deference is a judicial doctrine established by the Supreme Court in its 1984 opinion, Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc. It requires judicial deference to federal agency interpretations of statutory ambiguity or gaps, so long as such
interpretations are reasonable. Whats reasonable is left to the prerogative of federal agencies , which are mostly run by partisan
appointees.
The result is legislation being exploited years or decades later by overzealous federal agencies for partisan ends. See , for
example, the Environmental Protection Agencys (EPA) C lean P ower P lan, which relies on a novel interpretation of the Clean Air Act to
permit regulating emissions outside the fence of individual power plants. More than two-dozen states are now challenging the rule
as unconstitutional , with Chevron deference expected to play a key role in the EPAs case before the U.S. Court of
Appeals for the District of Columbia Circuit in the fall, and likely the Supreme Court next year.
It might seem obvious that allowing federal agencies to decide for themselves how to interpret laws will lead to their growth. This is reason
enough for the Supreme Court to reconsider the scope of its Chevron doctrine. Less obvious, though, is how restoring the traditional role of
the judiciary to interpret legislation passed by Congress could provide the appropriate checks and balances necessary
to break congressional gridlock .
This debate couldnt occur at a more important time. The job approval rating of Congress is at a dismal 11 percent. Americans think so
poorly of Congress principally because it is not acting as a representative legislature. Largely overlooked, however, is how
Chevron deference has contributed to this impasse .
By not passing well-drafted legislation, Congress enables the executive branch to fill the void by interpreting
ambiguous laws in a way that fits its agenda. But by ceding the executive branch so much authority, de facto, to create laws of its own, the
judicially created Chevron doctrine allows executive overreach to go unchecked.
This undermines our tripartite system of checks and balances among the legislative, executive and judicial branches of
government, which only works if there is constant and equivalent tension among the three branches. The lawmaking function of
Congress works best when it, not the executive branch, holds itself responsible to the public for the enactment and clarity of
laws. To do otherwise is for Congress to cede some of its constitutional responsibilities to the president, thus weakening
the tension that is necessary to compel congressional action .
Congress should have the incentive of robust judicial oversight of administrative interpretations to statutory ambiguities or gaps. After all, it is
Congress that writes the laws; lawmakers should want them interpreted and applied in a fair and consistent manner. The availability of judicial
review is what makes the lawmaking process effective.
We see the costs of the current system all around us today. Republican congressional leaders are often caught in a Catch-22 situation.
If they pass more precisely worded legislation that is consistent with constituent interests, it may be vetoed by the president. If
they pass compromise legislation with more ambiguous language, it may be signed into law, then authoritatively
interpreted by agencies with a political agenda of their own.
To be clear, the problem of excessive judicial deference is not one of congressional making, nor is a legislative solution the sole method to restore
balance to the separation of powers. The Supreme Court should address the imbalance that it helped create, given the scholarly
consensus that it did not intend to cause a major shift in judicial deference doctrine. The Supreme Court can help restore the rightful
places of Congress and the judiciary as coequal branches of government by reversing or revising the Chevron doctrine.

Failure to overcome gridlock collapses leadership and credibility


Haass 15
Richard - president of the Council on Foreign Relations, 9/2/15, The Biggest Threat to the U.S. Are Internal
Divisions, http://www.nytimes.com/roomfordebate/2015/09/02/whats-the-greatest-threat-to-us-national-
security/the-biggest-threat-to-the-us-are-internal-divisions-11
There are many candidates for what constitutes the principal national security threat to the United States. Even an abbreviated
list would include the Islamic State and terrorism more broadly, a more assertive China, a revisionist Russia, Iran, North Korea, climate change
and an Ebola-like pandemic.
All these threats should be taken seriously. My choice, though, for what
threatens America most is very different: our internal
political divisions . The divisions are between the White House and Congress but also within the parties and between
citizens and their government. One result is that the United States does not have the resources it needs for national security
and what resources it does make available are often spent to satisfy political rather than strategic needs.
United States infrastructure is woefully inadequate , leaving us less resilient in the face of natural and artificial disasters and less
competitive in the face of global competition. Also making this country less competitive is an outmoded immigration policy that does
not do enough to allow the most talented people to stay here and a K-12 education that does not do enough to prepare citizens for the world
they are to enter. Meanwhile, nothing is being done to rein in entitlement costs that will soon cause the debt to skyrocket. Standing in
the way of needed reform in all these areas are political disagreements.
The result is a country weaker than it should be, failing to set an example others want to emulate . The same divisions
make us less reliable, leading friends to take matters into their own hands and foes to challenge us in the belief they
have little to fear. Add to this a lack of consensus over U.S. priorities around the globe and you end up with a far
more disorderly world because the most powerful country is unable to provide the leadership that no other country can.

The impact is global nuclear war


Khalilzad 16
Zalmay - former U.S. ambassador to the United Nations, counselor at the CSIS, 3/23/16, 4 Lessons about
America's Role in the World, http://nationalinterest.org/feature/4-lessons-about-americas-role-the-world-
15574?page=show
Ultimately, however, we concluded that the United States has a strong interest in precluding the emergence of another bipolar
world as in the Cold Waror a world of many great powers , as existed before the two world wars. Multipolarity led to two
world wars and bipolarity resulted in a protracted worldwide struggle with the risk of nuclear annihilation. To avoid a
return such circumstances, Secretary of Defense Dick Cheney ultimately agreed that our objective must be to prevent a hostile
power to dominate a critical region, which would give it the resources, industrial capabilities and population to pose a global
challenge . This insight has guided U.S. defense policy throughout the postCold War era.
Giving major powers the green light to establish spheres of influence would produce a multipolar world and risk the
return of war between the major powers . Without a stabilizing U.S. presence in the Persian Gulf and U.S. relationships with Jordan and
the Gulf States, Iran could shut down oil shipments in its supposed sphere of influence. A similar scenario in fact played out during the 1987
tanker war of the Iran-Iraq war, which eventually escalated into a direct military conflict between the United States and Iran. Irans nuclear
program makes these scenarios even more dangerous.

Breaking down the precedent for agency deference creates a political coalition on the Supreme Court that can
broadly check Trumps administrative actions
Pazzanese 16
Christina - two decades of experience as a print and digital journalist for both consumer and trade press, 11/23/16,
Trump and the law, http://news.harvard.edu/gazette/story/2016/11/trump-and-the-law/
As President-elect Donald Trump prepares to take office in January, the legal community has begun to ponder and prepare for
the changes the incoming administration may make.
During a panel discussion Tuesday, analysts at Harvard Law School (HLS) discussed the scope and limits of a presidents executive and judicial
powers, the role the courts may play, and the ways in which Trump could reshape the authority and operation of an array of government agencies.
Adrian Vermeule 90, J.D. 93, the Ralph S. Tyler Jr. Professor of Constitutional Law at HLS, sees two possible prospects for
administrative law under Trump.
One involves what he called bipartisan retrenchment . Liberals and conservatives in the Supreme Court could form a
new coalition, deciding for different reasons that administrative law during the Obama era has been too favorable to
presidential power . Vermeule advised students to watch how two moderate conservatives, Chief Justice John Roberts and
Justice Anthony Kennedy, react going forward. Both have previously expressed some anxiety over the administrative
state , though not as vociferously as have more conservative justices Clarence Thomas and Samuel Alito.
In a climate of uncertainty for the incoming administration, If we see the conservative centrists starting to take on
board some of the stronger skepticism from the justices on the rightward flank, and especially if we see them joined in
coalition by liberal justices like [Stephen] Breyer, who are occasionally skeptical about deference , then we have the
makings of a supermajority coalition to rein in administrative power , he said.
While such a coalition is unlikely to take drastic steps, Vermeule added, its possible that
meaningful constraints could be
implemented, such as giving deference to government agencies when interpreting their own rules; loosening rules that would allow
for more court cases challenging administrative action; and taking a more permissive approach to complaints about
agency inaction if the Trump administration slow walks mandatory regulations. There may also be less tolerance
for political rationales offered by the Trump White House than those given by expert civil servants within agencies, as well as a
tightening up of interpretive parameters so that more statutes are deemed clear.
Outside the courts, Democrats and congressional Republicans opposed to some Trump initiatives could consider
pending legislation or take new action to rein in his administration, though Vermeule thinks such a move would be
unlikely to succeed .
***2AC VS. OFFCASE ARGUMENTS =
HERE
Topicality Answers
2AC vs. Education = Classroom Instruction

( ) Counter-interpretation: Education includes administrative policies in schools. This doesnt de-limit to


abstract learning outside of schools.

Macmillan 9
Macmillan Dictionary 2009-17 - http://www.macmillandictionary.com/dictionary/american/education
Education: the activity of educating people in schools, colleges, and universities, and all the policies and
arrangements concerning this.

( ) We meet our interpretation of Education. Our Affs about participating in institutional life and not
just a new physical facility.
Wolff 17
et al; Tobias Barrington Wolff Professor of Law at the Univ of Pennsylvania and Counsel of Record for this Amicus Brief. Please
note that this Brief is written on behalf of Martine Rothblatt who came out publicly as trans in 1994. Rothblatt brings to this
Court the knowledge and experience earned from a lifetime of personal and scholarly engagement with questions of gender. She
also founded SiriusXM Satellite Radio and holds degrees in communications, law and business from UCLA and a PhD in
medical ethics from The London School of Medicine and Dentistry. 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 AMICUS CURIAE MARTINE ROTHBLATT 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_bsac_martine_rothblatt-1.pdf

GLOUCESTER COUNTY'S POLICY OF BANISHING TRANSGENDER STUDENTS FROM SCHOOL FACILITIES IS A


VIOLATION OF TITLE IX'S COMMAND TO PROMOTE OPPORTUNITY AND ELIMINATE BARRIERS TO AN EQUAL
EDUCATION BASED ON SEX.
When Gloucester High School excluded Gavin Grimm from full participation in the life of his institution because he
is transgender, it denied him an equal education on the basis of sex.2 A school's use of a sex-specific restroom policy to banish
transgender students from the infrastructure of the institution violates the affirmative commitment of Title IX to eliminate barriers to students'
development and advancement based on sex.
Because this case involves sex-separated restroom and locker facilities, it presents a distinctive analytical question. Ordinarily, if an institution
takes sex into account when administering access to its facilities, that fact alone constitutes disparate treatment based on sex and the case for
impermissible discrimination is straightforward. See, e.g., City of L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702,711 (1978) (analyzing
alleged sex discrimination using a "simple test of whether the evidence shows treatment of a person in a manner which, but for that person's sex,
would be different") (quotingDevelopments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 196k, 84 Harv. L.
Rev. 1109,1170 (1971)). Title IX's implementing regulations, however, permit schools to maintain separate restroom and locker facilities for boys
and girls. See 34 C.F.R. 106.33 (2016) ("A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such
facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex."). In that limited sense,
schools may take sex into account without committing a per se violation of Title IX. The question is how those sex-specific facilities may or may
not be administered.
The affirmative purposes of Title IX provide the answer. Title IX's implementing regulations must be enforced in a manner that is
consistent with the statute's goal of promoting equal access and equal opportunity for all students without limitation based on sex. As Respondent
correctly notes, the restroom regulation is not a categorical limitation on the scope of Title IX like those contained in 20 U.S.C. 1681(a);
on the contrary, it is an implementing regulation designed to effectuate the statute's promise of equality. Resp't Br. 41. Any
application of 34 C.F.R. 106.33 that would use sex to limit, rather than promote, the educational opportunities of students would violate Title
IX's command that no student "be excluded from participation in" or "denied the benefits of" an education on the basis of
sex. 20 U.S.C. 1681(a). "The statute makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and
opportunities on the basis of gender." Davis, 526 U.S. at 650.
Petitioner's exegesis of dictionaries from the 1970s and 1980s, see Br. of Pet'r 25-32, is beside the point. This Court has long since made clear
that when federal anti-discrimination law promotes equal opportunity without regard to sex, that promise includes freedom from constraints based
on gender stereotypes. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion); see also id. at 261 (O'Connor, J., concurring in the
judgment) ("I agree with the plurality that, on the facts presented in this case, the burden of persuasion should shift to the employer to
demonstrate by a preponderance of the evidence that it would have reached the same decision concerning [the plaintiff's] candidacy absent
consideration of her gender."); accord Davis, 526 U.S. at 650 (defining Title IX protections in terms gender). When a student challenges a
schools policy concerning separate-sex facilities, the
validity of the policy does not turn on a catalog of specific prohibitions wrung
from the pages of Webster's Dictionary , but on whether the school's actions comply with Title IX's affirmative
command to eliminaterather than imposesex-based barriers to its students' education. That a school purports to be relying
on 34 C.F.R. 106.33 when crafting its bathroom policies does not exempt the school from that duty.
( ) Prefer our interpretation:

Their interpretation is dated - Their 1913 definition freezes us with highly-traditional understandings of
education. Huge issues like desegregation, women in STEM and Free-and-Reduced lunch would get boxed
from the discussion. These core issues turn their topic-education claims.

Theres no bright line and we avoid the worst extremes. Homework regulation wouldnt be topical because it
doesnt take place in the classroom. These issues obviously bleed together and we dont delimit to their
examples. We are in schools not social education learned through media norms or foreign policy. They
over-limit crushing education.

You should normatively prefer our interpretation. Its the best way to learn about trans- discrimination.
Weve impact the value of learning those norms on the case.

( ) We meet, or their interpretation is arbitrary. Their definition only says prescribed studies.
Administrative policies on gender identity are prescribed and advance a traditional form of study. None
of their ev supports that education is solely in traditional classrooms. Contrived interpretation must be
rejected the Neg would always limit out the Aff and hamper topic-knowledge.

( ) No unique abuse - It is one of the central issues in education discussions. We dont de-limit to their
extreme examples.

( ) Generics check cplans, disads, and Ks are all viable versus their exaggerative case list.

( ) Reasonability outweighs competing interpretations their model devolves to T debates and


technicalities. Our provides better education.
Extension - Trans- bathroom = Edcuation

Trans- Bathroom policy is part of the educational mission.


Ho 17
et al;.Derek Ho is an attorney with Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.. The Author holds a , J.D. from Harvard
Law School; an MA from Yale University; and a BA from Harvard. 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 MONTGOMERY COUNTY PUBLIC SCHOOLS AS AMICUS CURIAE SUPPORTING
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/2017/03/16-273bsacmontcntypubschools.pdf

By contrast, a policy that precludes transgender students from using the bathroom of the gender with which they identify
- and relegates them either to a bathroom contrary to their gender identity or to separate bathroom facilities is anathema to the success of
school districts' educational mission . Such a policy sends a message to transgender students that they are unwelcome, or
even viewed as a threat to other students, simply because their gender identity does not correspond to their physical anatomy at birth. It thus
"put[s] the imprimatur of the [school] itself on an exclusion that . . . demeans or stigmatizes" an already vulnerable group of students. Obergefell,
135 S. Ct. at 2602. And such officially sanctioned discrimination cannot help but further "generate[] a feeling of
inferiority" among transgender students, as well as students from other potentially vulnerable groups, "as to their status in the
community." Brown, 347 U.S. at 494.

Title IX is expressly about education" plan expands it


Gorod 17
et al;.Brianne J. Gorod is The Constitutional Accountability Centers Chief Counsel. Brianne was an Attorney-Adviser in the
Office of Legal Counsel at the U.S. Department of Justice. She also served as a law clerk for Justice Stephen Breyer on the U.S.
Supreme Court, Brianne received her J.D. from Yale Law School and her M.A./B.S. from Emory University. Her master's thesis
in political science examined judicial behavior on the U.S. Supreme Court. 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 CONSTITUTIONAL ACCOUNTABILITY CENTER AS AMICUS CURIAE 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-con-acct-center.pdf

G.G. (Grimm) is a seventeen-year old boy. He has a male name, his state-issued ID identifies him as male, and he has a deep voice and facial hair
like other boys his age. In public places, he uses the men's restroom, and for seven weeks, he used the boys' restroom at his school without
incident. Despite all this, the Gloucester County School Board (hereafter "the Board"), now insists that G.G. (Grimm) may
not under any circumstances use the same restrooms that other boys at his school use because he is transgender. The Board's
policy was adopted on December 9, 2014, following a Board meeting in which G.G. was called a "freak," repeatedly described as a "young lady"
or "girl," and compared to a '"dog'" that "wants to urinate on fire hydrants." Pet. App. at 11a. Proponents of the policy argued that allowing G.G.
to use the boys' restroom would lead "non-transgender boys" to "come to school wearing dresses in order to gain access to the girls' restroom"
again, despite the fact that G.G. had been using the boys' restroom without incident for seven weeks. Id. at 10a. The Board's policy, which
relegates "students with gender identity issues" to "an alternative appropriate private facility," id. at 144a, stigmatizes students like G.G.,
segregating them from the rest of the student body. Denied access to the restrooms used by other students, G.G. avoids using the restroom at
school, which has caused him to develop urinary tract infections.
The Board's policy cannot be squared with the guarantees of Title IX of the Education Amendments of 1972, which,
in sweeping, universal language, provides that "[no] person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving
Federal financial assistance." 20 U.S.C. 1681(a). Enforcing basic constitutional principles that require the government to respect the
equal dignity of all personswomen and men alikeTitle IX broadly prohibits gender discrimination by governmental and private entities that
accept federal financial assistance, and thereby ensures to women and men "full citizenship statureequal opportunity to aspire, achieve,
participate in and contribute to socie-ty based on their individual talents and capacities. United States v. Virginia, 518 U.S. 515, 532 (1996).
Transgender individuals, such as G.G., are entitled to invoke these protections. Title IX, like the Constitution's equal protection guarantee it
enforces, applies to all persons, and ensures that "*[i]nherent differences' between men and women . . . remain cause for celebration, but not for
denigration of the members of either sex or for artificial constraints on an individual's opportunity." Id. at 533. Under Title IX, all persons
regardless of sex must be treated with equal dignity, and given access to an educational environment where they can learn,
thrive, and grow free from discrimination. By denying G.G. access to the restroom used by others boys and segregating him from the
rest of the student body on the basis of fear, prejudice, and sex-stereotyped judgments, the Board transgressed Title IX's broad
mandate of gender equality. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them
effect." Palmore v. Sidoti, 466 U.S. 429, 433 (1984). The Board failed to heed this basic rule.
Topicality Aff vs. Regulation args

The Aff is an implementing regulation federal law confirms.


Wolff 17
et al; Tobias Barrington Wolff Professor of Law at the Univ of Pennsylvania and Counsel of Record for this Amicus Brief. Please
note that this Brief is written on behalf of Martine Rothblatt who came out publicly as trans in 1994. Rothblatt brings to this
Court the knowledge and experience earned from a lifetime of personal and scholarly engagement with questions of gender. She
also founded SiriusXM Satellite Radio and holds degrees in communications, law and business from UCLA and a PhD in
medical ethics from The London School of Medicine and Dentistry. 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 AMICUS CURIAE MARTINE ROTHBLATT 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_bsac_martine_rothblatt-1.pdf

GLOUCESTER COUNTY'S POLICY OF BANISHING TRANSGENDER STUDENTS FROM SCHOOL FACILITIES IS A


VIOLATION OF TITLE IX'S COMMAND TO PROMOTE OPPORTUNITY AND ELIMINATE BARRIERS TO AN EQUAL
EDUCATION BASED ON SEX.
When Gloucester High School excluded Gavin Grimm from full participation in the life of his institution because he is transgender, it denied him
an equal education on the basis of sex.2 A school's use of a sex-specific restroom policy to banish transgender students from the infrastructure of
the institution violates the affirmative commitment of Title IX to eliminate barriers to students' development and advancement based on sex.
Because this case involves sex-separated restroom and locker facilities, it presents a distinctive analytical question. Ordinarily, if an institution
takes sex into account when administering access to its facilities, that fact alone constitutes disparate treatment based on sex and the case for
impermissible discrimination is straightforward. See, e.g., City of L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702,711 (1978) (analyzing
alleged sex discrimination using a "simple test of whether the evidence shows treatment of a person in a manner which, but for that person's sex,
would be different") (quotingDevelopments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 196k, 84 Harv. L.
Rev. 1109,1170 (1971)). Title IX's implementing regulations, however, permit schools to maintain separate restroom and locker facilities for boys
and girls. See 34 C.F.R. 106.33 (2016) ("A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such
facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex."). In that limited sense,
schools may take sex into account without committing a per se violation of Title IX. The question is how those sex-specific facilities may or may
not be administered.
The affirmative purposes of Title IX provide the answer. Title IX's implementing regulations must be enforced in a manner that is
consistent with the statute's goal of promoting equal access and equal opportunity for all students without limitation based on sex. As Respondent
correctly notes, the restroom regulation is not a categorical limitation on the scope of Title IX like those contained in 20 U.S.C. 1681(a);
on the contrary, it is an implementing regulation designed to effectuate the statute's promise of equality. Resp't Br. 41. Any
application of 34 C.F.R. 106.33 that would use sex to limit, rather than promote, the educational opportunities of students would violate Title
IX's command that no student "be excluded from participation in" or "denied the benefits of" an education on the basis of sex. 20 U.S.C.
1681(a). "The statute makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on
the basis of gender." Davis, 526 U.S. at 650.

The Aff is a regulation it uses the law to remove barriers to restroom access.

Wolff 17
et al; Tobias Barrington Wolff Professor of Law at the Univ of Pennsylvania and Counsel of Record for this Amicus Brief. Please
note that this Brief is written on behalf of Martine Rothblatt who came out publicly as trans in 1994. Rothblatt brings to this
Court the knowledge and experience earned from a lifetime of personal and scholarly engagement with questions of gender. She
also founded SiriusXM Satellite Radio and holds degrees in communications, law and business from UCLA and a PhD in
medical ethics from The London School of Medicine and Dentistry. 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 AMICUS CURIAE MARTINE ROTHBLATT 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_bsac_martine_rothblatt-1.pdf
A principal purpose of federal anti-discrimination law is to remove the barriers that prevent full and equal participation in public institutions and
public life, and thus to enable all people to grow to their fullest potential and contribute to their communities. This Court should assess the parties'
arguments about the proper interpretation of Title IX and 34 C.F.R. 106.33 in light of that affirmative purpose.
Discrimination against transgender students including a refusal to acknowledge and respect students' gender in separate-
sex facilitiesimposes severe barriers to their ability to grow, flourish and enjoy equal opportunity and equal participation
in public life. It
is a core purpose of Title IX to remove those barriers. This Court should interpret the statute and its
regulation of restroom facilities in light of that core purpose. The question before this Court is not whether the drafters of Title IX
and its implementing regulations specifically contemplated that its provisions would encompass discrimination against transgender students. The
question is whether the actions of the Gloucester County School Board deny Respondent the opportunity to grow and flourish based on sex. The
answer is yes.
A-to Trans- Pessimism K
Note: Additional Aff answers to this K are in the Trans- Pessimism Core File.
2AC Frontline

( ) Perm do both.

( ) Alt fails and the Aff doesnt. Many examples prove that Courts are distinct. Despite pessimism, they can
succeed in contingent areas. We also solve a disparate violence add-on which operates within their role of
the ballot.
McKanders 17
Karla McKanders is a Visiting Associate Professor at the Howard University College of Law for the 2016 2017 academic year
where she teaches in the Civil Rights Clinic and Refugee Law. She is a tenured professor at the University of Tennessee, College
of Law 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 AMICUS CURIAE
HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC IN SUPPORT OF RESPONDENTS- Available at
SCOUTS blog along with all amicus briefs on this matter- March modified for language that may offend #CutWithKirby -
http://www.scotusblog.com/wp-content/uploads/2017/03/16-273_bsac_196_members_of_congress.pdf
The Court should not allow society's apprehension of change to determine the scope of transgender students' rights.
These students' rights should be determined by the Constitutionnot by society's discomfort with change in the existing social order. The
school board policy at issue here, mandating separate, single-sex restrooms for transgender students, is reminiscent of
the "separate but equal" doctrine that hindered racial equality for school children for over half a century. The policy singles out and labels
transgender students as being different from others, rather than affording all students uniform rights. The policy is based on unfounded fears,
which are inadequate to negate an individual's right to equality. Fear should never undermine the importance of equal protection and fairness
under the law.
Furthermore, and perhaps equally important, the separate restroom policy will have a disparate impact on Black and Brown
transgender students in lower socioeconomic school districts. In order to execute a policy similar to the one at issue in this case, schools will
be required to build new, single-sex restrooms. Often, Black and Brown students attend schools with fewer financial resources; these schools,
therefore, will likely have difficulty installing truly "equal" facilities. As a result, students in these schools will be subject to
makeshift accommodations that will be both separate and unequal. This unintended consequence will
disproportionately impact many Black and Brown transgender students who already face a variety of challenges due
to inadequate resources.
This case affords the Court an opportunity to uphold the principles of equality enshrined in the Fourteenth Amendment of the Constitution and
Title IX's prohibition against discrimination on the basis of sex in education. In upholding the Fourth Circuit's decision, this Court will continue
its tradition of ensuring equality for all Americans, as it did in Brown.
This case is about more than the right to use a restroom. It is about equality. Equality is a fundamental principle at the foundation
of American society and "at the heart of the Fourteenth Amendment." Loving v. Virginia, 388 U.S. 1, 12 (1967). At its core, this case is "about
the founding ideals that have led this country - haltingly but inexorably - in the direction of fairness, inclusion and equality for all Americans."3
Protecting equality implicates all Americans, especially those who do not fit within existing social norms and the status quo. In protecting G.
Grimm ("G.G."), a transgender boy, this Court will affirm "the dignity and respect we accord our fellow citizens and the laws that we,
as a people and as a country, have enacted to protect them - indeed, to protect all of us."4 G.G. has been singled out and forced to use separate
restrooms in accordance with the Gloucester County Public School's ("GCPS") policy. J.A. 34. G.G. and other transgender students who will be
impacted by this Court's decision only "ask for equal dignity in the eyes of the law." Obergefell u. Hodges, 135 S. Ct. 2584, 2608 (2015).
The Equal Protection Clause and Title IX are not simply aspirational in nature; instead, this Court has made those principles a
reality in the face of societal fear and resistance to change in the social hierarchy and the status quo. The United States has witnessed
discriminatory responses to historic moments of progress towards equality in our nation's history. The separation and discrimination G.G.
(Grimm) has faced is reminiscent of moments in our country's history where immutable differences have been a
marker to justify disparate and discriminatory treatmentthe antithesis of equality. Throughout U.S. history, however, this Court
has been the stalwart in safeguarding individuals who have been the targets of discrimination because of their differences. See
State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) ( allowing in-state tuition for African-American students ); Sipuel v.
Bd. of Regents of Univ. ofOkl., 332 U.S. 631 (1948) ( allowing African Americans to enroll in law school ); Brown v. Bd. of Ed.
ofTopeka, Shawnee Cty., Kan., 347 U.S. 483 (1954) ( Brown I ), sub nom. Brown v. Bd. of Educ. ofTopeka, Kan., 349 U.S. 294 (1955)
( Brown II ) (eliminating discrimination in public schools based on race ); Loving, 388 U.S. 1 ( eliminating discrimination in
marriage based on race ); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (recognizing discrimination in workplace
based on same-sex harassment); Obergefell, 135 S. Ct. 2584 (extending marital rights to same-sex couples).
Accordingly, this Court's decision will have a critical role in affirming the principles of equality enshrined in the Constitution and
promulgated in Title IX to ensure that we continue to make progress towards a more equal society in the face of potential social discomfort and
unfounded fear. The theme of equal rights in American society continues to hold the force of power that will bridge the gap
between the Constitution's promise of equality and the reality of deconstructing a social hierarchy where race, class,
sex, and gender have unjustly been determinative of the dignity accorded to members of our society.

( ) Link premise is false. Pessimism K is dated. Laws not categorically violent to trans- people and can be re-
captured for contingent legal gains.
Weiss 14
Dr. Jillian T. Weiss has a J.D. and a Ph.D. in Law, Policy & Society. Currently Professor of Law and Society at Ramapo College
of New Jersey, her research area is gender identity and law. She has authored over 50 academic publications, presentations and
other scholarly works, as well as approximately 40 articles an d interviews for media organizations including The New York
Times and Associated Press. Dr. Weiss provides legal representation to transgender employees in cases involving gender identity
and gender expression discrimination. She also consults with private and public organizations regarding gender identity policy
and employee gender transitions, including Harvard University, Boeing and New York City. Her volunteer work includes serving
as a member of the Board of Directors of Lambda Legal, the oldest and la rgest U.S. national legal organization whose mission is
to safeguard and advance the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact
litigation, education and policy work. She is also Chair of the annual Transgender Law Institute, currently held at the National
LGBT Bar Associations annual Conference. The Transgender Tipping Point: An Overview for the Advocate - November 2014
- #CutWithKirby - https://www.acslaw.org/sites/default/files/Weiss_-_The_Transgender_Tipping_Point.pdf
Time Magazine recently declared "The Transgender Tipping Point." asserting that "another social movement is poised to challenge deeply held
cultural beliefs."1 Until recently, however, transgender people have remained relatively hidden from public consciousness, due in part to
the severe stigma against them. They have largely been regarded as strangers to the law, and are often without legal protection because
of their transgender identity. Though there have been great strides in providing that protection under the current Administration, the
conservative nature of law means it will take years to change the legal regime that routinely withholds rights from transgender people, and
progress may be reversed if politics takes a turn to the right . Therefore, it is crucial that progressive advocates act now
to advance and consolidate these civil rights gains for transgender people.
Estimates suggest there are approximately 15 million transgender people in the world today, with about 700,000 located in the United States.
Transgender refers to people whose gender identity (internal sense of gender) or whose gender expression (social gender characteristics) is not
that traditionally related to the sex they were assigned at birth. Examples of well-known transgender people today include Chaz Bono, Laverne
Cox and Janet Mock. Transgender identity is not a new phenomenon, and there is a long history of transgender communities reaching into
prehistory.
Until recently, transgender people have been considered strangers to the law, not entitled to protection from
discrimination based on their gender identity or expression. Discrimination against transgender people has long been rampant in all
areas of public and private life, including employment, education, housing, credit, public accommodations, child custody, out-of-home care for
youth, incarceration, health care and marriage.4 When transgender people attempted to use laws for protection, courts told them that the state
recognized only their sex assigned at birth, and legislators did not intend to protect them. However, this situation is changing, due in
part to the willingness of some judicial officials to recognize that interpretations of law that exclude trans gender
persons from relief are incorrect and unjust.

( ) Prefer a policy framework centered on teaching workable mechanisms for garnering collectives change.
Non-policy frameworks allow endless items become nexus question. They also move the discussion away from
the 1AC which matters.
Bryant 12
(Levi Bryant is currently a Professor of Philosophy at Collin College. In addition to working as a professor, Bryant has also served as a Lacanian
psychoanalyst. He received his Ph.D. from Loyola University in Chicago, Illinois, where he originally studied 'disclosedness' with the Heidegger
scholar Thomas Sheehan. Bryant later changed his dissertation topic to the transcendental empiricism of Gilles Deleuze, Critique of the
Academic Left, http://larvalsubjects.wordpress.com/2012/11/11/underpants-gnomes-a-critique-of-the-academic-left/)
Unfortunately, the academic left falls prey to its own form of abstraction. Its good at carrying out critiques that denounce various social formations, yet very poor at proposing any sort of realistic constructions of alternatives. This

Im reminded by the
because it thinks abstractly in its own way, ignoring how networks, assemblages, structures, or regimes of attraction would have to be remade to create a workable alternative. Here

underpants gnomes depicted in South Park: The underpants gnomes have a plan for achieving profit that goes like
this: Phase 1: Collect Underpants Phase 2: ? Phase 3: Profit! They even have a catchy song to go with their work: Well this is sadly how it often is with the academic left.
Our plan seems to be as follows : Phase 1: Ultra- Radical Critique Phase 2: ? Phase 3: Revolution and complete social transformation!
Our problem is that we seem perpetually stuck at phase 1 without ever explaining what is to be done at phase 2. Often the critiques articulated at phase 1 are right , but

there are nonetheless all sorts of problems with those critiques nonetheless. In order to reach phase 3, we have to produce new collectives. In order for new collectives to
be produced, people need to be able to hear and understand the critiques developed at phase 1. Yet this is where everything begins to fall apart. Even though these critiques are often right, we express them in ways that only an
academic with a PhD in critical theory and post-structural theory can understand. How exactly is Adorno to produce an effect in the world if only PhDs in the humanities can understand him? Who are these things for? We seem to
always ignore these things and then look down our noses with disdain at the Naomi Kleins and David Graebers of the world. To make matters worse, we publish our work in expensive academic journals that only universities can
afford, with presses that dont have a wide distribution, and give our talks at expensive hotels at academic conferences attended only by other academics. Again, who are these things for? Is it an accident that so many activists look
away from these things with contempt, thinking their more about an academic industry and tenure, than producing change in the world? If a tree falls in a forest and no one is there to hear it, it doesnt make a sound! Seriously dudes
and dudettes, what are you doing? But finally, and worst of all, us Marxists and anarchists all too often act like assholes. We denounce others, we condemn them, we berate them for not engaging with the questions we want to

, and we vilify them when they dont embrace every bit of the doxa that we endorse. We are every bit as off-
engage with

putting and unpleasant as the fundamentalist minister or the priest of the inquisition (have people yet understood that Deleuze and Guattaris Anti-Oedipus was a critique of the
This type of revolutionary is the greatest friend
French communist party system and the Stalinist party system, and the horrific passions that arise out of parties and identifications in general?).

of the reactionary and capitalist because they do more to drive people in to the embrace of reigning ideology than to undermine
reigning ideology. These are the people that keep Rush Limbaugh in business. Well done ! But this isnt where our most serious shortcomings
lie. Our most serious shortcomings are to be found at phase 2. We almost never make concrete proposals for how things ought to be

new material infrastructures and semiotic fields need to be produced, and when we do, our critique-
restructured, for what

cynics and skeptics immediately jump in with an analysis of all the ways in which these things contain dirty secrets, ugly motives, and
intoxicated

are doomed to fail. How , I wonder, are we to do anything at all when we have no concrete proposals? We live on a planet of 6 billion people.
These 6 billion people are dependent on a certain network of production and distribution to meet the needs of their consumption. That network of production and distribution does involve the extraction of resources, the production of
food, the maintenance of paths of transit and communication, the disposal of waste, the building of shelters, the distribution of medicines, etc., etc., etc. What are your proposals? How will you meet these problems? How will you
navigate the existing mediations or semiotic and material features of infrastructure? Marx and Lenin had proposals. Do you? Have you even explored the cartography of the problem? Today we are so intellectually bankrupt on these
points that we even have theorists speaking of events and acts and talking about a return to the old socialist party systems, ignoring the horror they generated, their failures, and not even proposing ways of avoiding the repetition of
these horrors in a new system of organization. Who among our critical theorists is thinking seriously about how to build a distribution and production system that is responsive to the needs of global consumption, avoiding the
problems of planned economy, ie., who is doing this in a way that gets notice in our circles? Who is addressing the problems of micro-fascism that arise with party systems (theres a reason that it was the Negri & Hardt contingent,
not the Badiou contingent that has been the heart of the occupy movement). At least the ecologists are thinking about these things in these terms because, well, they think ecologically. Sadly we need something more, a melding of the

I would love, just for a moment,


ecologists, the Marxists, and the anarchists. Were not getting it yet though, as far as I can tell. Indeed, folks seem attracted to yet another critical paradigm, Laruelle.

to hear a radical environmentalist talk about his ideal high school that would be academically sound. How would he provide for the energy needs of that school? How would he meet building codes
how would she
in an environmentally sound way? How would she provide food for the students? Wh a t would be her plan for waste disposal? And most importantly,
navigate the school board, the state legislature, the federal government, ? and all the families of these students

What is your plan? What is your alternative? I think there are alternatives. I saw one that approached an alternative in Rotterdam. If you want to make a truly revolutionary
contribution, this is where you should start. Why should anyone even bother listening to you if you arent
proposing real plans? But we havent even gotten to that point. Instead were like underpants gnomes, saying revolution is the answer! without addressing any of the infrastructural questions of just how
revolution is to be produced, what alternatives it would offer, and how we would concretely go about building those alternatives. Masturbation. Underpants gnome deserves to be a

category in critical theory; a sort of synonym for self-congratulatory masturbation. We need less critique not

because critique isnt important or necessary it is but because we know the critiques, we know the problems . Were
intoxicated with critique because its easy and safe. We best every opponent with critique. We occupy a position of moral superiority with critique. But
What we need today , more than ever, is composition or carpentry. Everyone knows
do we really do anything with critique?

something is wrong. Everyone knows this system is destructive and stacked against them. Even the Tea Party knows something is wrong with the economic system, despite having the wrong economic theory.
None of us, however, are proposing alternatives . Instead we prefer to shout and denounce. Good luck with that.

( ) Anti-discrimination law do work. Even if it fails, they still set norms. The Alt is way worse.
Beiner 14
Theresa M. Beiner - Nadine Baum Distinguished Professor of Law, Associate Dean for Faculty Development, University of
Arkansas at Little Rock, William H. Bowen School of Law. THE MANY LANES OUT OF COURT: AGAINST
PRIVATIZATION OF EMPLOYMENT DISCRIMINATION DISPUTES - Maryland Law Review 2014, 73 Md. L. Rev. 837
l #CutWithKirby - awrev; allrev

After Congress enacted the first laws prohibiting employment discrimination in 1964, n1 workplaces changed
significantly. No longer could employers segregate workplaces based on race or sex . n2 In many workplaces, workers who
had been separated now worked side by side. One only need board an airline flight to realize how law can transform jobs and
workplaces. Instead of seeing only the pretty, slim, young, unmarried "stewardesses" of the 1960s, it is not
uncommon to have an entirely male flight attendant crew that includes workers over age fifty. n3 Indeed, both the pilot
and co-pilot on a commercial flight might well be women. While this transformation in workplaces is one of Title VII's key successes, in more
recent years, scholars have lamented that employment discrimination laws have not proven effective in eliminating
the many vestiges of discrimination in the workplace that still linger. n4 Many scholars blame the [*838] lackluster
enforcement of employment discrimination laws on the federal courts' inability to understand or theorize about the
lingering aspects of discrimination based on race and sex that still pervade the modern workplace. n5 In addition, some scholars
have opined that the federal courts are hostile to employment discrimination claims and do not wish to hear them. n6 This
may lead one to believe that out-of-court processes might better serve the aims of anti-discrimination laws.
This Article will argue the opposite: that there is a distinct need for employment discrimination cases to be tried in
court before juries. This Article charts the many processes the federal courts have used over the last twenty years to withdraw themselves from
the employment discrimination [*839] business. n7 In a series of cases, the Supreme Court of the United States has opened the door to
alternative forms of dispute resolution in order to "get rid of" these cases. n8 Whether it be through a robust pro-arbitration jurisprudence, an
uncalled-for reliance on employer internal grievance mechanisms, or aggressive settlement conferences, courts are shunting employment
discrimination cases out of the court system and into the sphere of private dispute resolution. n9 Notably, the courts are not the only movers of
this trend; even the federal agency tasked with enforcing these laws - the Equal Employment Opportunity Commission ("EEOC") - is finding
means other than court cases for addressing these claims. n10 In addition, lower courts have used invigorated civil procedure rules, including
summary judgment motions and motions to dismiss, as an effective tool to clear their dockets, leaving plaintiffs with no relief at all. n11
The resulting dearth of employment discrimination cases going to trial may not be cause for much concern. Indeed, it could be that the efforts of
prior plaintiffs have resulted in the elimination of employment discrimination based on race, sex, and religion from the American workplace.
Nevertheless, discrimination has become more subtle, n12 and evidence of continued employment discrimination based on sex and race abounds.
n13 It could also be, given arguments regarding judicial hostility to these cases, that these alternative practices are more effective in bringing
relief to plaintiffs and in furthering the purposes of antidiscrimination laws. [*840] Unfortunately, there is no way to know how methods of
alternative dispute resolution - such as arbitration, mediation, settlement, or internal employer grievance mechanisms - are actually working. Most
of these alternative dispute resolution systems are not studied and scrutinized by professionals. They exist "in the shadow of the law," as
commentators suggest. n14 There is no realistic way to know if these alternative dispute resolution mechanisms are bringing about just results. In
addition, these mechanisms do not alert employers and employees to what is and is not acceptable workplace behavior. n15
There is another problem with condemning these alternative schemes. When Congress enacted these laws, it provided for a conciliation process
and clearly envisioned that litigants would resolve at least some of these cases outside the court system. n16 Thus, one could argue that the
system is working consistently with Title VII's conciliation goals by encouraging non-court dispute resolution. This Article proposes that court-
driven alternative dispute processes have gone well beyond what Congress envisioned in enacting Title VII of the Civil Rights Act of 1964, n17
the Americans with Disabilities Act of 1990 ("ADA"), n18 and the Age Discrimination in Employment Act of 1967 ("ADEA"), n19 and does not,
in the long run, further the many purposes of anti-discrimination laws. n20
Most importantly, however, these alternative schemes suffer from a significant problem aside from difficulties in
assessing their efficacy. These schemes provide no support for the "norm-enforcing" scheme that is the American
legal system. This Article, in the tradition of Professor Owen Fiss's Against Settlement, n21 addresses the potential effects of employment
discrimination laws being enforced - if at all - through private dispute [*841] resolution mechanisms. n22 Anti-discrimination laws serve
a vital public purpose - they set norms of behavior for workplaces and workers in the area of equal employment opportunity. Indeed,
some areas of employment discrimination law involve assessing what the "reasonable person" would believe. n23 What other group is in a better
position to make this assessment than a group of twelve jurors? n24 Picking up on Marc Galanter's work regarding the vanishing American trial,
n25 this Article argues that trials in this area provide an important public function in setting norms of appropriate workplace
behavior and practices as well as setting monetary values for the harm employment discrimination causes its victims. n26 As this Article will
explain, there is cause for concern when alternative dispute schemes supplant jury trials in this area of the law.

( ) Their K is wrong and links to roll-back. Essential gains for trans- populations are lost. They also cause
external offense in the form of violent losses for racial and gender groups.

Levi & Shay 12


Jennifer Levi and Giovanna Shay. Jennifer Levi is the director of the Transgender Rights Project of GLAD (Gay and Lesbian
Advocates and Defenders). Jennifer has participated in successful efforts to pass transgender-inclusive antidiscrimination laws
throughout New England. Giovanna Shay is a co-chair of the Corrections Committee of the American Bar Association Criminal
Justice Section. She has participated in institutional change litigation involving prisons, as well as efforts to enforce the Prison
Rape Elimination Act (PREA) and amend the Prison Litigation Reform Act (PLRA). Both serve on the faculty of Western New
England University School of Law. - The dangers of reform - Source: The Women's Review of Books. 29.4 (July-August
2012): p30. Info Trac database #CutWithKirby
Spade, a law professor at Seattle University School of Law and noted transgender activist, criticizes several law-reform
In his recent book, Normal Life, Dean
movements, including those to improve prison conditions, win marriage equality for same-sex couples, and ensure that hate crimes and antidiscrimination laws include transgender
people. Spade finds fault with LGBTQ rights organizations' efforts to win mainstream acceptance, arguing that instead of pursuing an equality agenda, they should focus on changing "the
distribution of life chances," by "demand[ing] radical redistribution of wealth and an end to poverty." Spade's critique has the most force in the context in which it originated--calling for an end to
what David Garland first described as mass incarceration, the system many refer to as the "prison industrial complex." It is less persuasive when applied to the realm of free-world LGBTQ rights.
Spade's perspective is shaped by the prison-abolitionist movement, as well as, he says, by critical race theory and "woman of color feminism." In 2002, Spade founded the Sylvia Rivera Law
Project (SRLP), which provides free legal services to transgender and gender nonconforming people, and whose mission, according to its website (slrp.org/about), is "to guarantee that all people
are free to self-determine their gender identity and expression, regardless of income or race, and without facing harassment, discrimination, or violence." Normal Life is rooted in this experience,
and fits comfortably within a series of recent prison-abolitionist works focusing on the experiences of queer and transgender people, including Queer (In)Justice: The Criminalization of LGBT
People in the United States (2010), and Captive Genders: Trans Embodiment and the Prison Industrial Complex (2011), a collection of essays to which Spade contributed. Spade writes that his
purpose in Normal Life is to describe a "critical trans politics ... that demands more than legal recognition and inclusion." Arguing that equality of life chances, or distributive justice, cannot be
achieved through law reform alone, he calls for a broader agenda: "prison abolition, the elimination of poverty, access to full health care, and an end to immigration enforcement." These goals, he
submits, "cannot be conceptualized or won within the realm of US law." Citing the work of critical race theorist Alan Freeman, Spade questions the focus of antidiscrimination law on violations
of individual rights, which, he argues, tends to obscure more systemic and structural kinds of disadvantage. Instead of pursuing a rights-based law reform strategy, Spade writes, the trans
movement should focus on "population-level operations of power," such as ending mass incarceration. The models he recommends for pursuing "transformative change" will resonate with those
familiar with the work of organizers such as "rebellious lawyering" proponent Gerry Lopez, Brazilian educational reformer Paolo Freire, or civil rights campaigner Ella Baker: "[M]eaningful
change," Spade says, "comes from below," and "those most directly impacted" should lead the fight. Normal Life's leftist critique of liberal reform has deep roots in the history of US social
movements. For example, in his book Stories of Scottsboro, James Goodman describes how, in 1931, during the trial of the Scottsboro Boys (nine African American teenagers falsely accused of
raping two white women), leaders of the International Labor Defense (ILD) organization attacked the NAACP as "an instrument of the white capitalist class for the perpetuation of the slavery of
the negro people." ILD members marched with signs equating "lynchers, reformers, and enemies of the Negro people." Then as now, leftists viewed the racialized criminal-punishment system as
a tool of broader economic oppression. Spade writes that advocates seeking to remedy prison conditions should beware of inadvertently strengthening the prison system. He explains: We must
avoid proposals that include constructing buildings or facilities to house trans prisoners, to hire new staff, or make any other changes that would expand the budget and/or imprisoning capacities
of the punishment system. He goes on to say, "[W]e must ensure that legal work is always aimed at dismantling the prison industrial complex ... [k]nowing that the system is likely to try to co-opt
our critiques to produce opportunities for expansion."This is essentially the criticism of prison reform leveled by Angela Y. Davis in her 2003 book, Are Prisons Obsolete? She
argues that, despite the good intentions of advocates, prison reform can produce more prisons--new and sanitized versions built to reduce overcrowding. Davis warns that discussions of
prison reform focus "almost inevitably on generating the changes that will produce a better prison system." Although some reforms may be significant, she writes, "frameworks that
rely exclusively on reforms help to produce the stultifying idea that nothing lies beyond prison." It is not only prison abolitionists who share Spade's
concern about the unintended consequences of prison reform. The sociologist Heather Schoenfeld writes that prison-conditions litigation in Florida contributed to a prison building boom
there. Other commentators--including James Jacobs, Malcolm Feeley, and Van Swearingen--argue that prisoners' rights litigation contributed to the "bureaucratization" of prisons, consolidating
administrators' power even as it asserted prisoners' rights. Examples of double-edged US criminal-punishment reforms extend well beyond prison conditions. As described by Kate Stith and
Steve Y. Koh (in "The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines," Wake Forest Law Review, 1993), some of the initial proponents of federal
Unfortunately, as innumerable commentators have
sentencing guidelines were liberal academics and judges, who wanted to rationalize sentencing to make it fairer and more consistent.

adopting an all-or-nothing
recounted, the implementation of the guidelines produced draconian sentences, ultimately contributing to the growth of US prisons. In

approach, however, Spade fails to acknowledge ways in which the liberal prisoners' rights movement has helped to advance critical
trans politics . At a minimum, prison-reform litigation generated information, through civil discovery, that advocates used to draw

attention to prison conditions. Access to prisoners has been facilitated by the minimal legal protections and professional norms that the
prisoners' rights movement helped to achieve. Rather than undermining the radical project that Spade promotes, liberal law-reform

efforts arguably laid foundations for the prison- abolition ist movement. As for hate crimes prohibitions, Spade writes that they "strengthen and legitimize the
criminal punishment system," which targets poor people of color and singles out poor trans people of color for particular harassment. "Changing what the law explicitly says about a group," he
points out, "does not necessarily remedy the structured insecurity faced by that group." We ourselves are agnostic on the question of hate crimes penalties for crimes against LGBTQ people: the
exclusion of sexual orientation and gender identity from existing laws not only minimizes the seriousness of anti-LGBTQ violence but also nearly guarantees a dearth of law enforcement
resources. Nevertheless, we are also acutely aware of the danger of expanding the already massive criminal-punishment system in any way. In the context of mass incarceration, in which reform
can produce ever cleaner and more technologically advanced human warehouses, Spade's arguments are well-taken. His critique is less persuasive when he moves into the broader arena of
LGBTQ rights. Spade believes that law reform is at odds with distributive justice. In his view, advocacy that departs from the idealized approach he champions harms the transgender community.
While we laud his critique of some elements of liberal law reform, we disagree with his zero-sum frame. Law reform is only one piece of a strategy. It cannot
a necessary precondition to reach other goals and, at a minimum, is not
achieve everything, but it is sometimes ing

a causative element for diminished opportunities and status. A movement that transgender equality

includes expansion of antidiscrimination laws and marriage equality among its goals is coextensive with the project of
"transformative change." Spade argues that antidiscrimination laws "create the false impression that ... fairness has been imposed, and the legitimacy of the distribution of life
chances restored." But such protections merely ensure that a person's sexual orientation or gender identity cannot be an obvious basis for an adverse employment action. They are nowhere near
excluding gender identity and sexual orientation from
broad enough to promise substantive equality, for transgender people or anyone else. However,

existing employment protections is far more damaging than committing the resources for the advocacy required to expand them. In addition,
organizing to pass antidiscrimination laws has activated and radicalized LGBTQ advocacy organizations . The California-
based Transgender Law Center (incubated by the National Center for Lesbian Rights) and the Massachusetts Transgender Political Coalition (first envisioned by GLAD staff members and
interns) are two examples of the generativity of liberal law reform efforts. Both organizations share many of the distributive justice goals of SRLP. Spade is not the first to criticize the movement
for marriage equality for same-sex couples. In "Arguing Against Arguing for Marriage" (University of Pennsylvania Law Review, 2010), Shannon Gilreath claims that "marriage is dangerous for
Gays conceptually, in its patriarchal and heteropatriarchical foundations." In less absolute terms, Katherine Franke writes in the New York Times (June 23, 2011) that same-sex marriage is a
"mixed blessing," which may undermine other arrangements that LGBTQ people have used to "order our lives in ways that have given us greater freedom than can be found in the one-size-fits-
all rules of marriage." Spade goes too far in applying the same critique to both prison reform and marriage equality. Removing gender discrimination from the institution of marriage does not
strengthen it in the way that modifying the criminal-punishment system reinforces mass incarceration. The institution of marriage has an evolving social meaning. Extending it to lesbians, gay
men, bisexual and transgender people reaffirms our human dignity. Even the most steadfast critics of the marriage-equality movement--including the lesbian activists and law professors Nancy
Spade ignores
Polikoff and the late Paula Ettelbrick--have acknowledged that critiques of marriage and the marriage equality movement need not be on a collision course. In addition,

reform efforts spearheaded by LGBTQ legal organizations other than those focused on hate crimes, anti-discrimination, and marriage. These include challenges
law-

to discriminatory health care access and to prison regulations that deny essential medical care to transgender inmates; immigration
reform advocacy ; and support for transgender students and homeless LGBTQ youth. To ignore these efforts is to miss
the ocean for the tidal pool beside it.

( ) Only the Aff solves and the Alt does not. Trans- pessimism of the Law may be correct. But non-
traditional modes of education like the Aff are a pre-req for shaping new norms.
Klein 17
et al; Linda Klein is the president of the American Bar Association and The Counsel of Record for this Amicus Brief. 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 AMERICAN BAR ASSOCIATION
AS AMICUS CURIAE IN SUPPORT OF RESPONDENT- Available at SCOUTS blog along with all amicus briefs on this
matter- March - #CutWithKirby - http://www.scotusblog.com/wp-content/uploads/2017/03/16-273_bsac_aba.pdf
These fundamental principles of anti-discrimination law are entirely consistent with interpreting Title IX to guarantee
transgender students the right to use the bathroom corresponding to their gender identity. That interpretation frees
transgender students from the differential treatment and stereotypes that would deny them equal access to educational
opportunities, and thus gives them an equal opportunity to participate in the civic life of the community.
Equal Access For Transgender People To Educational Opportunities Is Critical To Expanding Access To Professional Life
And Helping The Legal Profession Better Serve The Community
The deleterious effects of exclusion in schools follow studentsboth transgender students and their classmatesinto
their adult lives, and harm as well the broader society in which they live. Moreover, these effects hamper the legal
profession in its efforts to provide empathetic representation to clients from all backgrounds and render justice that
accounts for the full breadth of the community's experiences .
This Court's Jurisprudence Emphasizes The Role Of An Inclusive Educational Community In Improving Educational And
Professional Outcomes For All Students And In Making The Legal System More Effective
A-to Supreme Court Politics
2AC vs. Court Politics

( ) Not Unique - Travel ban will survive in the squo.


Luperon 17 ---- Alberto, legal editor at Abrams Media, B.A. in history (Columbia University in the City of New
York), Trumps Saudi Arabia Speech Could Help His Travel Ban Win in Court, Law Newz, 5/22,
http://lawnewz.com/high-profile/trumps-saudi-arabia-speech-could-help-his-travel-ban-win-in-court/

How does Donald Trump go from proposing an outright Muslim ban to insisting that this controversial executive order isnt an
attack on Islam? The Presidents past comments remain an almost fatal sticking point as this policy affects six Muslim-majority nations. It continues to wind its
way through the court system, but perhaps he can turn things around if he says and does the right things from this point onward.
Trump is currently in the middle of a foreign tour. Sunday brought him to Saudi Arabia, where he addressed King Salman and other Middle East
leaders. POTUS insisted the U nited S tates was not at war with Muslims. Just terrorists.
This is not a battle between different faiths, different sects, or different civilizations, he said. This is a battle between barbaric criminals who seek to obliterate
human life and decent people all in the name of religion This is a battle between good and evil.
Former Republican Senator Rick Santorum quickly suggested that this speech could be used to benefit the travel ban in court.
Its going to very hard now to just say, This is a Muslim hater, he hates Islam, he wants to ban Muslims, he said on CNNs State of the Union. All
the
S olicitor [ G eneral] now has to do now is play parts of that speech, and youve now deflected that.
Thats not untrue. LawNewz.com reached out to Professor Stephen Yale-Loehr, who teaches immigration law at Cornell University.
The courts considering Trumps travel ban may be interested in the Presidents recent speeches in the Middle East before they
decide their cases, he said. However, to do that, they will have to ask both sides to file supplemental briefs to put the recent speeches into the
appropriate legal context.

( ) Their internal link makes no sense issues stay compartmentalized. If there is spillover, theres no
guarantee itll manifest itself on the travel ban decision as opposed to the many other cases before
SCOTUS.

( ) No link and Turn. Plan wont cause hostility. And, Capital is low because The Courts perceived as ducking
the issue.
Dorf 17
Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus Test:
Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice Anthony
Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard as an
undergraduate, he was the American Parliamentary Debate Association national champion. SCOTUS Sends Transgender
Restroom Case Back to 4th Circuit: Passively Virtuous or Subtly Vicious? - Dorf on Law - Wednesday, March 08, 2017. This
evidence internally references and refutes the claims of Alexander Bickel. Bickel was a law professor and his writings emphasize
judicial restraint. This article also internally references Gerald Gunther who criticized Bickel. Gunther was a prominent
constitutional law scholar and a Professor of Law at Stanford Law School - http://www.dorfonlaw.org/2017/03/scotus-sends-
transgender-restroom-case.html

On Monday, the SCOTUS docket shrank by one case when the Court removed Gloucester County v. G.G . from its
argument calendar. The action is not entirely unexpected. On February 23, the clerk directed the parties to file letters with their views on how
the case ought to proceed in light of the fact that the Trump administration had withdrawn the Department of Education guidance that was at the
root of two of the three questions on which the Court had granted certiorari--involving questions of administrative law. Yet the Court's decision to
vacate and remand to the Fourth Circuit was hardly a foregone conclusion given that the third question--whether the school board's policy
excluding transgender students like plaintiff Gavin Grimm from the restroom corresponding to his gender identity violates Title IX itself--was
still very much alive AND that both parties had urged the Court to keep the case on the docket and address that question.
That issue will now go back to the Fourth Circuit. As Sam Bagenstos, Marty Lederman, Leah Litman, and I noted here last week, an amicus brief
we filed in the SCOTUS lays out a straightforward reason why Grimm should win under Title IX, even without a resolution of the question
whether discrimination on the basis of gender identity is sex discrimination within the meaning of Title IX: the school board policy undoubtedly
segregates on the basis of sex, and as applied to transgender students, such segregation amounts to unlawful discrimination because it imposes
severe harm on such students without furthering any important institutional interests. Needless to say, we hope that the Fourth Circuit
will now rule for Grimm on that basis (or another).
Meanwhile, in my latest Verdict column I explain why the Trump administration's justification for its volte-face--states' rights--should be
rejected. The usual sorts of reasons for granting states flexibility--explicit statutory programs of cooperative federalism, local variation in
conditions, experimentation--have relatively little purchase with respect to a federal civil rights statute. The column also considers the possibility
that federalism could serve as a means of avoiding backlash, analogizing to the fears that led to the "all deliberate speed" formula in Brown II and
the hand-wringing by Chief Justice Roberts in his dissent in Obergefell v. Hodges. As those examples themselves show, I conclude, it is easy
to get carried away with a go-slow approach, and so the better course is usually for a court simply to apply its best
legal judgment.
Yet there is a distinct possibility that the Supreme Court vacated and remanded in Gloucester County--rather than
retaining the case on its docket--out of a similar go-slow approach. Would that be legitimate?
Fifty-six years ago, Alexander Bickel famously argued that in order to maintain its prestige and credibility, the Supreme
Court sometimes needed to avoid deciding divisive cases by exercising what he called "the passive virtues." By
invoking the political question doctrine, standing rules, and other limits on its jurisdiction, as well as by exercising its discretion not to
decide , Bickel thought the Court could and should duck certain questions. When Bickel wrote, it was harder for the Court to duck
hard questions because a substantial chunk of the Court's business was on its mandatory appellate (rather than its discretionary certiorari) docket,
which is why one of the ducking techniques Bickel endorsed was for the Court to treat mandatory appeals as though they were discretionary by
summarily affirming or reversing lower court rulings. Since 1988 the Court has had virtually no mandatory appellate jurisdiction. Today, if the
Court wants to duck an issue it can simply deny certiorari.
But if denying certiorari enables the SCOTUS to duck an issue, it does not enable the federal courts as a whole to
duck the issue. District courts and federal courts of appeals have almost no discretion to decline cases that fall within their
jurisdiction. And if the SCOTUS is worried that the courts are getting ahead of the country in a way that could spark a
backlash, then the Court pretty much has to grant cert to rein them in, or else suffer the backlash.
That may well be what was going on in Gloucester County. Perhaps a majority of justices think (or would think, if they
carefully considered the question) that Title IX forbids restroom policies like the one adopted by the Gloucester County
school board but these justices also think that the country isn't ready for such a ruling. If so, they would have denied cert in any
case rejecting a claim like Grimm's but would have felt they had no choice but to grant in the actual Fourth Circuit case, where Grimm won in the
Court below. If that's true--and to be clear, this is pure speculation on my part--then that would also explain why the Court has vacated and sent
the case back to the Fourth Circuit: the justices are trying to duck the issue.
Yet issue ducking is not cost-free. In a famous law review article of his own, Gerald Gunther criticized what he called "the
subtle vices" of Bickel's "passive virtues." Gunther pointed out the curious fact that Bickel thought
it extremely important for the
Court to be principled and candid in its decisions on the merits but that Bickel endorsed a kind of chicanery regarding the exercise of
jurisdiction. In a case with potential parallels to Gloucester County , Gunther deplored Bickel's endorsement of the Court's
dishonest manipulation of its jurisdictional statute in order to avoid having to rule on the merits that an anti-
miscegenation statute was invalid at a time when white Southerners were still denouncing the Court over school desegregation . Although
Gunther does not use the term, he essentially accuses Bickel of endorsing cowardice.
Whether or not that is a fair charge when Gunther leveled it against Bickel, we can ask whether it would be a fair
charge if now leveled at the Supreme Court. Suppose that at least five justices think that the correct legal answer in
Gloucester County is that Gavin Grimm prevails under Title IX but that they sent the case back to the Fourth Circuit
in order to duck the issue. Would that be a form of cowardice?
Of course it need not be. The Court generally (though not always) prefers for the courts of appeals to weigh in on an issue before it considers the
matter itself, so the remand can be justified on the ground of standard practice. But again, I'm supposing that this was not the actual motivation.
The actual motivation (in my speculation) was to duck the issue until such time that the Court can decide in favor of a transgender student's right
to use the restroom corresponding to his gender identity without sparking a backlash. Is that cowardly? Whether or not it is cowardly, is it
justified?
I don't want to call anyone a coward, so I'll answer the second question and simply say I think it is not justified. Even assuming that there
is sometimes a place for Bickel's passive virtues, I doubt very much that this is such a place . For one thing, a backlash
would likely be ineffective. Congress could amend Title IX, but the Supreme Court could--and I think should--find for Grimm or the next
plaintiff like him based on the Equal Protection Clause as well. Such a constitutional ruling could not be superseded by Congress.
Moreover, insofar as the justices are worried about backlash, I think they are flat-out mistaken. Ted Cruz could not even
win a Republican primary by demagoguing to the far right of Donald Trump on transgender restroom access. Yes, some
of the same people who are still freaked out about same-sex marriage are freaked out by the very existence of transgender Americans, but this
is simply not an issue that will generate much resistance to the courts .
Do I know that for sure? Of course not. But I'll end with two caveats. First, the fact that Trump moved from making trans-friendly
noises during the campaign to revoking the Obama Department of Education policy does not indicate that there would be
substantial opposition to a ruling for Grimm or the next plaintiff in his position. Trump has given over much of his domestic policy
shop to the social conservative far right. Even Trump's own highly problematic Secretary of Education--Besty DeVos--was
reportedly opposed to the policy change, which probably gives a pretty good sense of where the mainstream of the
Republican party is on this issue. And if I've over-estimated the level of existing acceptance, a ruling for Grimm would quickly
change attitudes , as people discovered that transgender access to restrooms causes nobody any harm.
Second, following Gunther, I would think the Court should reserve the Bickelian passive virtues for rare cases where there really is a clear
imperative to duck a case for fear that a substantively correct ruling would cause serious harm. I could be wrong about the impact of a ruling for
Grimm, but I'm not clearly wrong. Accordingly, if
the Court sent the case back down to the Fourth Circuit to duck the issue on
Bickelian grounds, it made the wrong call.

( ) Turn Plan generates more Court Capital. Winners Win.


Young 99
Ernest A., Assistant Professor, University of Texas School of Law, State Sovereign Immunity and the Future of
Federalism, Sup. Ct. Rev. 1, The University of Chicago, The Supreme Court Review, Lexis

"Political capital," of course, is a pretty vague concept. It might be that the Court's ability to enforce
federalism limits is more like muscles than money: it atrophies unless it is exercised regularly. n264 The National
League of Cities story arguably illustrates this phenomenon, in that the Court's failure to apply the doctrine to check federal
power in a series of subsequent cases may have helped lead to the outright rejection of the doctrine in Garcia. n265
The important point, however, is that the Justices who matter most on these issues tend to think in terms of limited capital and worry about
judicial actions that may draw down the reserves. n266 Political capital [*60] is thus likely to function as an internal constraint on the
Court's willingness repeatedly to confront Congress.

( ) PC theory is bunk for the Supreme Court


Chemerinsky 99
Erwin Chemerinsky, Alston & Bird Professor of Law and Professor of Political Science, Fall 1999, South Texas
Law Review, 40 S. Tex. L. Rev. 943, p. 948

Choper, for example, concludes from this premise that the Court should not rule on federalism or separation of powers issues so as to
not squander its political capital in these areas that he sees as less important than individual rights cases. Bickel argued that the Court
should practice the "passive virtues" and use justiciability doctrines to avoid highly controversial matters so as to preserve its political capital. 19
Other scholars reason from the same assumption. Daniel Conkle, for example, speaks of the "fragile legitimacy that attaches to Supreme Court
these scholars are wrong and that the public image of the Court is
pronouncements of constitutional law." 20 I am convinced that
not easily tarnished, and preserving it need not be a preoccupation of the Court or constitutional theorists. There is
no evidence to support their assertion of fragile public legitimacy and almost 200 years of judicial review refute it.

( ) Their Kennedy internal links are false he wont sweat over his political capital.
Amin 14 ---- Aneri, Co-Chair of the Gate (The University of Chicagos forum for political analysis and legal
opinions), How Will History Remember It? Legacy of the 2012-2013 Supreme Court Term, Supreme Court
Spotlight, 4/4, http://uchicagog
ate.com/2014/04/04/legacy-of-the-2012-2013-supreme-court/

this term unusual was Kennedys swing vote . The importance of Kennedys
Besides these unpredictable rulings, what also made
vote can be seen in the fact that he has been the justice most frequently in the majority of 5-4 decisions in every term
since 2003 . It is also no surprise that Kennedy was the only justice in the majority for all three of these major
decisions. Kennedy is more moderate than his conservative and liberal colleagues, but has always stood for federalism, with a
libertarian view on questions of privacy . Although he is considered a conservative, he leans liberals on most social issues,
especially those concerned with sexuality . However, Kennedys voting pattern is tricky to predict , as top Supreme
Court lawyer Viet Dinh wrote, There is no grand unified theory for Justice Kennedys jurisprudence. While it is
unclear what exactly he stands for, what is clear is that he is a champion for gay rights, writing the courts most important gay rights
opinions, such as Romer v Evans and Lawrence v Texas. Thus, as expected, Kennedy also authored the majority opinions for the civil rights
cases Fisher and Windsor last term.

( ) Travel bans not key to Trumps use of Executive power. He can still use it on Sanctuary Cities, foreign
policy, or any number of things.
( ) Presidential power grabs are inevitable
Howell 13 (William, Sydney Stein professor of American politics at the University of Chicago Harris School of
Public Policy as well as in the department of political science, The not-so-imperial presidency of Barack Obama,
8-8-13, http://www.politico.com/story/2013/08/opinion-william-howell-barack-obama-95352.html)

The men and women who eventually become president may not come into this world with an appetite for power. An
interest in power may not even inform their original decisions to seek the office. Rather, the need to acquire, protect and expand power is

built into the office of the presidency itself , and it quickly takes hold of even presidents whose modest ambition
is merely to serve the public interest. For what the public expects of the president is not modesty at all. It is nothing short of mastery. There is no
domain of public life on which the president can take a pass and defer to the judgments of others. On everything from gas prices
to terrorist threats in Yemen to unemployment to the latest gun massacre, we expect our presidents to stand out in front,
defining problems, offering solace, deriving meaning and paving a way forward. Presidential candidates who foreswear the use of certain
power instruments during a campaign compare, for instance, Sen. Barack Obamas principled arguments for the sparing use of signing statements
with President Barack Obamas regular and controversial employment of them quickly learn to appreciate their merits once in office. And
those who continue to resist the imperatives of power James Buchanan, who refused to vigorously intervene on the issue of slavery; William Taft,
whose reticence to lead so angered Teddy Roosevelt that he came out of retirement to seek another term in 1912; or Herbert Hoover, who appeared to hedge and
founder during much of the Great Depression are predictably repudiated
by their contemporaries and largely forgotten by subsequent
generations. Lest you doubt this, think of the political drubbing subjected to recent presidents who so much as appeared weak:
Jimmy Carter, who was seen as sitting listlessly in office while U.S. hostages were held up in Iran for months on end; Bush, who refused to land Air Force One amid
the carnage wrought by Hurricane Katrina; or Obama, who in the summer of 2011 was seen as letting a fringe group of House Republicans set the terms by which
negotiations over raising the debt ceiling would proceed. The
mismatch between the expansive public expectations of the president
and the formal powers he is granted yield a nagging preoccupation with power. At every turn, presidents must guard what
power they have been given and invent what power they can in order to satisfy a public longing for leadership. Democrats might not like what
Republican presidents do with their power just as Republicans bristle at the behavior of Democratic presidents. Neither, however, should be especially surprised that
any president wants more power than his predecessor had, than Congress might like or that a strict reading of the Constitution might permit. If you have a problem
with Obama, you should look to Congress and the courts. Though this former constitutional law professor might once have counseled executive prudence, he now

has every incentive to guard, wield and grow his power as has nearly every president who came before him and
as will the next.
A-to Federalism
2AC Frontline

( ) Uniqueness overwhelms plans not sufficient. Their Jacob ev cites broader trends brought on by Trump.

( ) Empirically false Obama just had Federal guidance that mandated trans- bathroom access. While that
was in effect, the US model didnt erode.

( ) Trump violating Federalism now


Will 17
George Frederick Will is a Pulitzer Prizewinning political commentator. The authors received MA and PhD degrees in politics
from Princeton University and has then taught political philosophy at the James Madison College of Michigan State University,
at the University of Toronto, and at Harvard University - From the article: Trumps violations of federalism would make Obama
jealous Washington Post - May 10, 2017 - https://www.washingtonpost.com/opinions/trumps-violations-of-federalism-would-
make-obama-jealous/2017/05/10/7cf6b5d6-34dd-11e7-b4ee-434b6d506b37_story.html?utm_term=.501ab7c57fb7

Trumps violations of federalism would make Obama jealous


But what good came of it at last?
Quoth little Peterkin.
Why that I cannot tell, said he,
But twas a famous victory.
Robert Southey
The Battle of Blenheim (1798)
Southey, a pacifist, wrote his antiwar poem long after the 1704 battle for which the Duke of Marlborough was awarded Blenheim Palace, where
his great-great-great-great-great-great-grandson Winston Churchill would be born. We, however, do not need to wait 94 years to doubt whether
the Trump administrations action against sanctuary cities is much ado about not much. Four months have sufficed to reveal
twas a constitutionally dubious gesture.
The executive order was perpetrated in a helter-skelter, harum-scarum, slapdash manner five days after the inauguration, before the
administration was humming like a well-tuned Lamborghini. The order says that sanctuary cities have caused immeasurable harm to the very
fabric of our republic, a thunderous judgment offered without evidence of the shredded fabric or even a definition of sanctuary city.
The executive order is either a superfluous nullity or it is constitutional vandalism. It says cities that fail to comply with
applicable federal law shall not receive federal funds, except as mandated by law. A U.S. district judge in Northern California
has held that the executive order is toothless if it pertains to merely a few federal grants, and even they do not unambiguously state in their texts
that funding is conditional on active cooperation with federal immigration enforcement. If, however, the order extends to other federal grants, it
violates the separation of powers: The spending power is vested in Congress, so presidents cannot unilaterally insert new conditions on funding.
Several senior White House officials, operating in pre-Lamborghini mode, denounced this judges decision as another excess by the much-
reversed U.S. Court of Appeals for the 9th Circuit. Actually, although this court might hear an appeal of the judges decision, it had nothing to do
with the decision.
It is federal law that a state "may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the
Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual." This
does not, however, prevent any government entity from voluntarily withholding information.
Furthermore, the Supreme Court has held that the 10th Amendment ("The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people") means that the federal
government may not "commandeer" state and local officials to enforce federal laws. The function of the anti-
commandeering doctrine is, in the words of Justice Antonin Scalia, the "preservation of the states as independent and
autonomous political entities."
Last Sunday, Texas Gov. Greg Abbott (R) signed legislation setting criminal and civil penalties for state and local officials who refuse to comply
with federal immigration laws and detention requests. As policy, this may or may not be wise; as an exercise of the state's police power, it is not
constitutionally problematic. But regarding the federal executive order, professor Ilya Somin of George Mason University's Antonin Scalia Law
School says:
"Trump's order is exactly the kind of high-handed federal coercion of states and undermining of separation of powers that
outraged conservatives under [President Barack] Obama. In fact, Obama did not go as far as Trump seems to do here.
Obama never claimed sweeping authority to impose new conditions on federal grants beyond those specifically
imposed by Congress."

( ) No link and impact turn federalism rationale is wrong in civil rights context. It also justifies racist and
heterosexist roll-back.
Dorf 17
Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus Test:
Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice Anthony
Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard as an
undergraduate, he was the American Parliamentary Debate Association national champion. SCOTUS Sends Transgender
Restroom Case Back to 4th Circuit: Passively Virtuous or Subtly Vicious? - Dorf on Law - Wednesday, March 08, 2017
http://www.dorfonlaw.org/2017/03/scotus-sends-transgender-restroom-case.html

That issue will now go back to the Fourth Circuit. As Sam Bagenstos, Marty Lederman, Leah Litman, and I noted here last week, an amicus brief
we filed in the SCOTUS lays out a straightforward reason why Grimm should win under Title IX, even without a resolution of the question
whether discrimination on the basis of gender identity is sex discrimination within the meaning of Title IX: the school board policy
undoubtedly segregates on the basis of sex, and as applied to transgender students, such segregation amounts to unlawful
discrimination because it impos the ses severe harm on such students without furthering any important institutional interests. Needless to say, we
hope that the Fourth Circuit will now rule for Grimm on that basis (or another).
Meanwhile, in my latest Verdict column I explain why the Trump administration's justification for its volte-face--states' rights--should be
rejected. The usual sorts of reasons for granting states flexibility--explicit statutory programs of cooperative federalism, local
variation in conditions, experimentation--have relatively little purchase with respect to a federal civil rights statute. The column also
considers the possibility that federalism could serve as a means of avoiding backlash, analogizing to the fears that led to the "all deliberate speed"
formula in Brown II and the hand-wringing by Chief Justice Roberts in his dissent in Obergefell v. Hodges . As those examples
themselves show, I conclude, it is easy to get carried away with a go-slow approach, and so the better course is usually for a court simply
to apply its best legal judgment.

(Note to Students: Several Court cases are referenced in this evidence. Grimm is the appeal of a School Board decision to block
trans~ students access to bathrooms that correspond to the gender identity. Obergefell is the Supreme Court decision on same-sex
marriage. Brown II is the follow-up decision by the Supreme Court in 1955 (after the Brown I decision in 1954 which ruled
against formal racial segregation in public schools). Brown II said that racial integration in schools should occur "with all
deliberate speed. This decision is often criticized for allowing States Rights to slow the pace of desegregation. The author of
this card is arguing that federalism concerns like those in these examples - can sometimes be used to slow-down
implementation of such rulings.)

( ) Federalism modeling is false---diverse systems


Habisso 12 Tesfaye Habisso is a former Ethiopian ambassador to South Africa, Can Ethnic Federalism Help to
Manage Ethnic Conflicts and Accommodate National Diversity?, 10/11/
http://www.tigraionline.com/articles/article121023.html)
Apart from the defining characteristics mentioned above, federal systems can take a variety of shapes and there is no single
model of federalism ! The qualifying adjectives, which are added to the word, such as quasi-federalism, centralized federalism,
decentralized federalism, symmetrical federalism, asymmetrical federalism, cooperative federalism or executive federalism give a first
glance at this diversity. If we have a look at the existing, real federal systems around the world (for example, Australia, Belgium,
Canada, Germany, India , Malaysia, Nigeria, Ethiopia, Switzerland and the United States), we realize that each federal system is a
system sui generis (or unique to each country or state ), both in circumstances which gave birth to it and in the forms that it
takes: the relation between the governments on the different levels, the degree to which the subunits are represented within
central institutions and the allocation of powers and competencies, differ tremendously between those federal systems. Some
federations emerged from a voluntary contract between previously autonomous states , such as the United States,
Switzerland and Canada. In these cases, autonomous states transferred part of their powers to a new central authority. In other cases, unitary
states undertook a constitutional reform and restructured as federal systems, so powers were given from an existing national government to the
newly created subunits. The second mechanism, which is rather seldom, holds true for Ethiopia and Belgium. The existing federal systems also
differ with regard to their formation. Federalism, when considered as a principle, can be realized in highly different institutional arrangements
and political mechanisms. In fact, there is a wide range of federal types and no federal system can be simply adopted and
introduced in another state because each institutional design has to consider the specific ethnic composition of a
country, the existing identities, the political cleavage structure, its socio-economic state and its history, in short, the spirit and soul of the
people, as the great 18th century French philosopher Montesquieu, stated a long time ago. Thus any federal institutional system in
Ethiopia may borrow features from existing federal systems but in its overall structure it is likely to be unique to
Ethiopia . Ethnic federalism, it is widely believed among social elites in Ethiopia, was adopted as a response to the age-long aspirations of
Ethiopias diverse nations, nationalities and peoples (more than eighty cultural-linguistic communities or ethnic groups) as forcefully
propagated by the Ethiopian Student Movement and all progressive forces of the country since the 1960s and 1970s for self-rule and shared-rule
and vehemently opposed to the policy of centralization and assimilation pursued by the past successive regimes of the country. Thus, the
programme of ethnic federalism undoubtedly reflected the soul and spirit of the Ethiopian nations, nationalities and peoples, and today ethnic
federalism just works well for them, even though some advocates of the nation-state model of nation-building do not support it at all whereas
some political forces such as the Oromo Liberation Front (OLF) and the Ogaden National Liberation Front (ONLF) believe that the
implementation of ethnic federalism is still not deep enough, that is, the FDRE Constitution that recognizes the constitutional right of self-
determination is not fully and satisfactorily implemented to grant them full autonomy due to the ruling partys and states alleged centralizing
role. Finally, it must be clearly and firmly stated that it is absolutely difficult to formulate abstract generalizations about federal
institutions and the prospects for their stability, since it might well be that institutions that work perfectly in one context
will fail to perform if transplanted to another . This paper rejects the notion that federalism can be a one-size-fits-all solution to ethnic
and other forms of intrastate conflict. Instead, it proposes a vision of federalism deeply rooted in the specific features of diverse societies.

Federalism is Resilient no single area is key


Young 3
(Ernest, Professor of Law University of Texas, Texas Law Review, May, Lexis)

One of the privileges of being a junior faculty member is that senior colleagues often feel obligated to read one's rough drafts. On many
occasions when I have written about federalism - from a stance considerably more sympathetic to the States than Judge Noonan's - my
colleagues have responded with the following comment: " Relax . The States retain vast reserves of autonomy and authority
over any number of important areas. It will be a long time, if ever , before the national government can expand
its authority far enough to really endanger the federal balance. Don't make it sound like you think the sky is
falling ."

( ) Mid-East wars obviously dont go nuclear there have been many such wars and their own Pollack ev
admits as much.

( ) Many checks on Mid-East escalation.


James Dobbins 15, a veteran diplomat who most recently served as the State Department's special representative for
Afghanistan and Pakistan, is a senior fellow at the nonprofit, nonpartisan RAND Corporation, Reports of Our
Global Disorder Have Been Greatly Exaggerated, 7-22-15, http://www.rand.org/blog/2015/07/reports-of-our-
global-disorder-have-been-greatly-exaggerated.html
The world is more dangerous than it was a few years ago, and the mounting chaos in the Middle East has fed wider, more exaggerated anxieties . Many observers

feel that the pace of technological change is quickening, that the international order is disintegrating , that power is shifting from national governments to individuals and nonstate
actors, and that America's capacity to lead is waning. Oftentimes, however, these portents of disaster and decline are overstated . Certainly, computers and the Internet are driving
rapid change, but the pace is not more rapid or revolutionary than that following the introduction of the steam engine, electricity, radio, telephones, internal combustion engines, airplanes, and the atomic bomb. The Chinese economy
has grown compared to the United States, but the United States has, for many years, been growing faster than most of Europe, Russia, and much of East Asia. Russia is misbehaving, but nothing on the scale of the former Soviet

The Middle East is in turmoil, but even taking into account the chaos in that region, inter - and intrastate conflicts
Union.

continue to decline (as revealed in Steven Pinker's The Better Angels of Our Nature), as do the casualties and destruction they produce . States are
being challenged by terrorists and insurgent groups in the Middle East , as they once were in Southeast Asia, Latin America, and the Balkans. Twenty years ago this
month, Christian insurgents executed in cold blood more than 7,000 Muslim prisoners in Srebrenica, matching in scale and ferocity the horrors perpetrated by the Islamic State today. It's also true that prior eras have seen much greater
shifts in the global power balance than those underway today. World War I brought the collapse of the Ottoman and Austrian empires and the creation of more than a dozen new countries, including nearly all those in the modern
Middle East. During the two decades after World War II, control over more than half the world's surface shifted radically, as dozens of nonstate actors then known as liberation movements seized power and set up new
regimes. Change occurred at an even greater speed during the first few years of the George H.W. Bush administration, with the unification of Germany, the disintegration of the Warsaw Pact, and the collapse of the Soviet Union.
Most of these earlier geopolitical shifts were favorable to the United States in contrast to current developments in the Arab world. Not surprisingly, people are more likely to notice the pace of change for the worse, as opposed to that

But are states as a whole losing


for the better. Nevertheless, it would be hard to maintain that the distribution of power among states is changing more quickly today than after 1918, 1945, or 1989.

their grip ? Is power devolving to individuals and groups outside officialdom? The continued expansion of international trade, finance, travel, and communications has increased vulnerabilities even as it has widened
horizons, increased opportunity, and lifted people around the world out of poverty. Terrorists and criminals can mix with the millions of tourists and business

people who cross national boarders every day, but security agencies also have new and more powerful tools to track
and impede their movements . Contagious diseases can spread more rapidly, but resources to contain them can also be mobilized more quickly. The communications revolution empowers individuals and
states alike. Violent extremists can more easily spread their ideology, recruit followers, and orchestrate attacks, but security authorities can more easily collaborate to foil these attempts. As physical infrastructure becomes more
dependent on digital controls, the possibility for catastrophic interference grows, requiring ever higher levels of digital safeguards. There is admittedly a race between the forces of order and disorder in all these domains, but it is not
one that effective states are predestined to lose.
Aff vs. Funding Coersion link

Federal Funding Coercion link is terminally not-unique.


Loyola 16
et al; Mario Loyola is Senior Fellow at the Wisconsin Institute for Law & Liberty. He served in the Pentagon as a special
assistant to the undersecretary of defense for policy. Loyola is a contributing editor at National Review and a senior fellow at the
Texas Public Policy Foundation, where he was director of federalism and constitutional studies. He received a B.A. in European
history from the University of Wisconsin-Madison and a J.D. from Washington University School of Law. Amicus Brief -
GLOUCESTER COUNTY SCHOOL BOARD, Petitioner, v. G. G., BY HIS NEXT FRIEND AND MOTHER, DEIRDRE
GRIMM, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF
OF AMICUS CURIAE WISCONSIN INSTITUTE FOR LAW & LIBERTY IN SUPPORT OF PETITIONER - September -
Available at SCOUTS blog along with all amicus briefs on this matter http://www.scotusblog.com/wp-
content/uploads/2016/10/16-273-cert-amicus-WILL-.pdf
A. Conditional Federal Funding Programs Are Inherently Coercive.
The Court has long recognized that conditional federal spending programs have the potential to coerce states into
implementing federal policy, in violation of the Constitution's structural guarantees of federalism. Unfortunately, the Court has
embraced a doctrine which seeks to elucidate whether the threatened penalty of losing federal funds is "mere
encouragement" or "passes the point at which pressure turns into compulsion." Dole, 483 U.S. at 211. Experience has shown that
this distinction is unworkable in practice, and, at least until NFIB v. Sebelius, provided states essentially no protection from
federal coercion.
Aff vs. Africa Wars

( ) African war impact wont escalate many recent tensions in the region disprove their claim.

( ) African war wont escalate


Schear 16 Dr. James A. Schear, PhD, Global Fellow with the Africa Program at the Woodrow Wilson,
FORGING SECURITY PARTNERSHIPS IN AFRICA: WHAT LIES AHEAD?, Wilson Quarterly, Winter,
http://wilsonquarterly.com/quarterly/the-post-obama-world/forging-security-partnerships-in-africa-what-lies-ahead/
More than a generation later, the tempo of political violence has greatly subsided across large areas of southern
and eastern Africa and, more recently, in parts of coastal west Africa. Tragically, other venues most notably
central Africas Great Lakes region, as well as the Maghreb and Sahel to the north are still riven by deep-set
instabilities. And, yes, colonial-era legacies do still exert some malign influences, state fragility poses perennial
relapse risks, and new threats are ever-evolving.
Despite these complexities, any geostrategist would have to acknowledge contemporary Africas positive features.
The continent has not seen a war between sovereign states since the late 19 90s, when Eritrean and Ethiopian forces
waged large-scale mechanized warfare along their (still) disputed border. Nor is Africa a venue for aggressively
overreaching hegemons. None of its largest, strongest countries Angola, Ethiopia, Kenya, Nigeria, South Africa
and Tanzania are locked into polarizing rivalries with each other, and growing economic interdependencies
within and beyond their regions have tended, on balance, to aid local stability . This is all good news, but alas, it is
only part of the story.

( ) African wars wont draw-in great powers.


Lloyd Thrall 15, Associate at the RAND corporation, M.A. in international studies and diplomacy, SOAS, University
of London, PhD student in War Studies at Kings College London, "Chinas Expanding African Relations Implications
for U.S. National Security," 2015,
http://www.rand.org/content/dam/rand/pubs/research_reports/RR900/RR905/RAND_RR905.pdf
There is little credible potential for a Sino-American conflict over resources in Africa. Contrary to popular and perennial
assumptions about resource wars, industry and energy analysis sources project adequate supply of conventional
hydrocarbons beyond 2035 .6 Given reservoir depletion curves, any tightening of supply would be gradual. The adequacy of supply is further
augmented when tertiary production and unconventional sources are considered (such as shale and tar sands). U.S. strength in unconventional
sources, and potential energy independence, further reduces the likelihood of a conflict. Even in a future with
vastly inflated hydrocarbon prices, these costs pale in comparison to those associated with a Sino-American war, the economic
costs of which likely fall more heavily on China than the United States.7 Global hydrocarbon resources are distributed via a fungible global

market, with many stakeholders and moderate diversity of supply. This enables importing states to buy a predictable supply
of hydrocarbons at reasonable and competing prices over long contracts. African sources do not constitute a majority of this supply
chain, and supposed victory in a theoretical great-power resource war would not guarantee security of resource

supply . In sum, the potential for either China or the United States to be willing to enter war with a nuclear adversary
over African oil, let alone other, less valuable resources, is extraordinarily small .8
Extensions US not modeled

Countries dont model U.S. policy its a myth.


Moravcsik 5
Andrew - Professor of Government and Director of the European Union Program at Harvard University, January 31, 2005,
Newsweek, Dream On, America, lexis
Not long ago, the American dream was a global fantasy. Not only Americans saw themselves as a beacon unto nations. So did much of the rest of the world. East
Europeans tuned into Radio Free Europe. Chinese students erected a replica of the Statue of Liberty in Tiananmen Square. You had only to listen to George W. Bush's
Inaugural Address last week (invoking "freedom" and "liberty" 49 times) to appreciate just how deeply Americans still believe in this founding myth. For many in the
world, the president's rhetoric confirmed their worst fears of an imperial America relentlessly pursuing its narrow national interests. But the greater danger may be a
delusional America--one that believes, despite all evidence to the contrary, that the American Dream lives on, that America
remains a model for the world, one whose mission is to spread the word. The gulf between how Americans view themselves and how
the world views them was summed up in a poll last week by the BBC. Fully 71 percent of Americans see the United States as a source of good in the world. More than
half view Bush's election as positive for global security. Other studies report that 70 percent have faith in their domestic institutions and nearly 80 percent believe
"American ideas and customs" should spread globally. Foreigners take an entirely different view : 58 percent in the BBC poll see Bush's re-election
as a threat to world peace. Among America's traditional allies, the figure is strikingly higher: 77 percent in Germany, 64 percent in Britain and 82 percent in Turkey.
Among the 1.3 billion members of the Islamic world, public support for the United States is measured in single digits. Only Poland, the Philippines and India viewed
Bush's second Inaugural positively. Tellingly, the anti-Bushism of the president's first term is giving way to a more general anti-Americanism. A plurality of voters
(the average is 70 percent) in each of the 21 countries surveyed by the BBC oppose sending any troops to Iraq, including those in most of the countries that have done
so. Only one third, disproportionately in the poorest and most dictatorial countries, would like to see American values spread in their country. Says Doug Miller of
GlobeScan, which conducted the BBC report: "President Bush has further isolated America from the world. Unless the administration changes its approach, it will
continue to erode America's good name, and hence its ability to effectively influence world affairs." Former Brazilian president Jose Sarney expressed the sentiments
of the 78 percent of his countrymen who see America as a threat: "Now that Bush has been re-elected, all I can say is, God bless the rest of the world." The
truth
is that Americans are living in a dream world. Not only do others not share America's self-regard, they no longer
aspire to emulate the country's social and economic achievements. The loss of faith in the American Dream goes beyond this swaggering
administration and its war in Iraq. A President Kerry would have had to confront a similar disaffection, for it grows from the success of something America holds
dear: the spread of democracy, free markets and international institutions--globalization, in a word. Countries
today have dozens of political, economic
and social models to choose from. Anti-Americanism is especially virulent in Europe and Latin America, where countries have established their own
distinctive ways--none made in America. Futurologist Jeremy Rifkin, in his recent book "The European Dream," hails an emerging E uropean Union based on
generous social welfare, cultural diversity and respect for international law--a model that's caught on quickly across the former nations of Eastern Europe
and the Baltics. In Asia, the rise of autocratic capitalism in China or Singapore is as much a "model" for development as America's scandal-ridden corporate culture.
"First we emulate," one Chinese businessman recently told the board of one U.S. multinational, "then we overtake."
A-to Politics Disad
Note: there are many more Aff answers in the Politics Core.
2AC vs. Politics Disad

( ) Tax reform wont pass no bill, GOP splinters, delayed


Goldman 6-2 [David Goldman, CNN MoneyStream senior editor, 6-2-2017 Trump says his tax bill is 'moving
along.' Except it doesn't exist http://money.cnn.com/2017/06/02/news/economy/donald-trump-tax-bill/index.html]
President Trump says Congress is working hard to pass his tax reform bill.
"Our tax bill is moving along in Congress, and I believe it's doing very well," he said at a Rose Garden speech on Thursday.
One problem : There is no tax bill .
The only evidence of a White House tax strategy is a bunch of rhetoric from Trump's economic team and a one-page
outline hastily presented to the public in April. Trump called the proposal "one of the biggest tax cuts in American history."
Treasury Secretary Steven Mnuchin and White House National Economic Council Director Gary Cohn began pressing Republican members of Congress in mid-May
to get on board with Trump's tax agenda. But no
legislation has emerged.
"I think a lot of people will be very pleasantly surprised," Trump said of the phantom tax bill . "The Republicans are working
very, very hard. We'd love to have support from the Democrats, but we may have to go it alone. But it's going very well."
Historically, tax reform has been among the most difficult tasks for Washington to accomplish. Just about every
legislator has a pet tax incentive that he or she is unwilling to part with. Even in a GOP-controlled House and Senate,
Republican lawmakers could splinter if they are asked to back a plan that many economists and budget analysts warn will
increase deficits.
So far, the White House has insisted that the plan will "pay for itself" through economic growth. But there is no evidence to
suggest tax cuts can pay for themselves. At best, growth may make up for a fraction of the cost.
The Trump administration had initially hoped that tax reform could be accomplished before Congress' August recess. But without
an actual bill to debate, even Mnuchin told the Financial T imes recently that his time frame is "not realistic at this point."

( ) Not unique - Russia, healthcare, infrastructure and Twitter thump


Westwood 6-10 [Sarah Westwood is a White House reporter for the Washington Examiner 6-10-2017
http://www.washingtonexaminer.com/james-comey-cloud-hindering-trumps-agenda/article/2625553]
President Trump worked this week to revive his legislative agenda and kick off his administration's pursuit of an infrastructure overhaul, but the
attention devoted to former FBI Director James Comey 's congressional testimony demonstrated how difficult it will be to get back
on track.
Trump's efforts to expedite legislative priorities that had stalled amid controversy included a meeting with House and Senate leaders on Tuesday,
which was followed by a private dinner with a handful of national-security-focused Republican lawmakers that evening.
One GOP congressional aide noted this was "not the first overture" the White House had made toward Republicans on Capitol Hill. But another told the Washington
Examiner that Trump's team has been "very hands-off" when it comes to big-ticket items like Obamacare repeal and tax reform .
A third Republican aide said Treasury Secretary Steve Mnuchin and Budget Director Mick Mulvaney had recently met with members about tax reform.
"But I expect to see a bigger push in coming weeks," that aide said.
Several Republican staffers pointed to Vice President Mike Pence as the most visible face of the Trump administration's congressional outreach over the past month.
However, one staffer acknowledged that Trump has impressed some members with his personal touch and his ability to recall details about individual lawmakers.
In the nearly five weeks since Trump removed his FBI director, the Russian election-meddling probe that was once under Comey's purview has threatened
to overtake the White House and grind its agenda to a standstill . West Wing aides faced a daily barrage of questions
about the investigation and Comey's involvement with it until, in late May, they began referring all Russia-related inquiries to Trump's outside counsel.
Mark Serrano, a Republican strategist, said the move to direct those questions toward Marc Kasowitz, Trump's attorney, could help the administration tremendously in
its efforts to advance beyond the controversies.
"That was a very necessary and prudent measure for the sake of the country, for the sake of the operations for the White House," Serrano said.
After a week of hearings and revelations that saw multiple current and former administration officials deny encountering interference in the Russia probe, the White
House should take advantage of the momentum it now has, Serrano argued.
"I think the administration should first value and appreciate the point they've reached," he said. "It's demonstrated that the there's no shred of evidence of Russian
collusion. There's not a shred of evidence that there was any obstruction of justice."
But Trump's agenda won't progress without the assistance of Republicans on Capitol Hill, Serrano cautioned, and uniting those
lawmakers around Trump's agenda remains a challenge.
"I think congressional Republicans are as conflicted today as they were a year ago about Donald Trump," Serrano said. "He's an outsider, he's a disrupter,
and not all of them but many of them are part of the problem. They are part of the, you know, the establishment elites, and they are reluctant to embrace him."
Ford O'Connell, a Republican strategist, said the
GOP could be running out of time to notch any legislative accomplishments before
the midterm elections sweep some Republican House members out of office.
"Congressional Republicans have to grow a backbone. They have to realize that, in terms of numbers, it's not going to get any better than it is right now," O'Connell
said of the House majority. "You've got to produce some deliverables, basically."
Obamacare overhaul and tax reform have hit roadblocks in the House and Senate thanks to
Trump's top two legislative priorities an
dissent within Republican ranks about the direction of those policies. And this week, administration officials piled on a third
policy initiative by announcing its renewed push for an infrastructure package before the end of the year.
"When we talk about Obamacare and we talk about tax reform or tax cuts, these are not just Trump items that are just separate from the GOP agenda like, say, the wall
might be," O'Connell noted. "These are items that [Republicans] promised no matter who the president is."
Beyond the friction Trump has encountered on Capitol Hill, the president may find
his own habits a hindrance to his return to governing.
unpredictable use of Twitter , a staple of his political career since it launched in 2015, has become an obstacle to his efforts at
Trump's
building goodwill in Congress. Confronted with a steady stream of controversial or inaccurate tweets from the
president, many Republican members have chosen to distance themselves from Trump rather than wade into the
quicksand of defending Trump from himself.

( ) No link plan is not politically unpopular, even with Republicans.


Gersen 17
Jeannie Suk Gersen is a contributing writer for newyorker.com, and a professor at Harvard Law School. A New Phase of Chaos
on Transgender Rights New Yorker March 13th - http://www.newyorker.com/news/news-desk/a-new-phase-of-chaos-on-
transgender-rights

A majority of Americans do not support excluding transgender people from bathrooms consistent with their gender
identities, and Republican leaders are less likely now than they were a year ago to view division on the bathroom
issue as helpful to their party. North Carolina has borne significant costs for its bathroom law, including the N.B.A.
and N.C.A.A. pulling events out of the state and PayPal cancelling expansion plans. The former Republican Governor Pat
McCrory is widely thought to have lost his relection bid to a Democrat in part because of his association with the
bathroom law. Texas and Arkansas are currently considering bathroom bills similar to North Carolinas, but they are
unlikely to pass, facing strong opposition from both civil-rights activists and pragmatic protectors of the states
economic interests. Corporations such as Google, Amazon, American Airlines, Microsoft, Intel, and Hilton have
opposed the proposed Texas bathroom bill, as have the N.F.L. and the N.B.A.

( ) Courts dont link to politics.


Ward 9 (Artemus, Professor Political Science Northern Illinois University Political Foundations of Judicial
Supremacy: The Presidency, the Supreme Court, Congress & the Presidency, Jan-Apr, (36)1; p. 119)
After the old order has collapse the once- united, new-regime coalition begins to fracture as original commitments are extended to new issues.
In chapter 3 Whittington combines Skowronek's articulation and disjunctive categories into the overarching "affiliated" presidencies as both
seek to elaborate the regime begun under reconstructive leaders. By this point in the ascendant regime, Bourts are staffed by justices from the
dominant ruling coalition via the appointment process - and Whittington spends time on appointment politics here and more fully in chapter 4.
Perhaps counter-intuitively, affiliated political actors - including presidents - encourage Courts to exercise vetoes and
operate in issue areas of relatively low political salience. Of course, this "activism" is never used against the affiliated president per se.
Instead, affiliated Courts correct for the overreaching of those who operate outside the preferred constitutional vision, which are often state
and local governments who need to be brought into line with nationally dominant constitutional commitments. Whittington explains why it
is easier for affilitated judges, rather than affiliated presidents, to rein in outliers and conduct constitutional
maintenance. The latter are saddled with controlling opposition political figures, satisfying short-term political
demands, and navigating intraregime gridlock and political thickets. Furthermore, because of their electoral accountability,
politicians engage in position-taking, credit-claiming, and blame-avoidance behavior. By contrast, their judicial counterparts
are relatively sheltered from political pressures and have more straightforward decisional processes. Activist
Courts can take the blame for advancing and legitimizing constitutional commitments that might have electoral
costs. In short, a division of labor exists between politicians and judges affiliated with the dominant regime.

( ) Political Capital fails---Trump rhetoric and party divisions guarantee gridlock


Lightman, 16 David Lightman, national political correspondent for McClatchy Newspaper, 11-10-2016, Trump
gets a mandate and a Congress, Times Colonist, http://www.timescolonist.com/opinion/columnists/david-
lightman-trump-gets-a-mandate-and-a-congress-1.2589756
WASHINGTON - Donald Trump will use his stunning victory to insist voters gave him a mandate to shake up
Washington.
Hes right. But Washington wont play along.
Trumps rise from political outsider to president of the United States is unlikely to move a Congress that he reviled
for months. Its a Congress that promises to continue being stuck, poisoned by venomous, relentless partisanship
that Tuesdays election wont stop.
Hes also dogged by his mouth and his own party. Top Republicans distanced themselves from Trump weeks and
sometimes months ago. And Trump has shown a consistent ability to alienate blocs of constituents with his insults.
Trump has a significant mandate, said Jonathan Felts, former White House political director for president George
W. Bush. His challenge will be being disciplined enough so that he can spend his political capital proactively
moving legislation rather than wasting it having to clean up self-inflicted wounds.
Trump will begin his presidency as one of the most distrusted, disliked men ever to occupy the White House.
Nearly two of three people in network exit polls said he was not honest or trustworthy, and 60 per cent viewed him
unfavourably. Just 13 per cent said they were excited about a Trump presidency.
He won after a campaign largely devoid of serious debate over issues.
And while he marshalled an impressive brigade of voters frustrated by a stodgy, unresponsive political system, he
also benefited by running against an opponent with negatives almost as high as his. What dominated the dialogue
between Hillary Clinton and him were accusations about who is more irresponsible, hateful and corrupt.
Theres no big mandate for change of a policy nature, said Lee Miringoff, the director of the Marist Institute for
Public Opinion.
Trump will try to bring people together, to be sure.
The distrust will put pressure on both parties to work together, said Michael Feldman, a Democratic consultant
who was a senior adviser to vice-president Al Gore.
That doesnt mean theyll be successful. There are huge, huge obstacles.
Foremost is a Congress where Democrats and Republicans have been warring for years, with no end in sight. Even
within the parties, struggles persist.
Conservatives and centre-right lawmakers are at odds over whether to stand on principle or seek compromise.
Democratic liberals are at odds with pragmatists.
Congress wont let Trump dictate its agenda. House Speaker Paul Ryan separated himself from Trump last month,
telling House members he would no longer defend the partys nominee.
What could save Trumps agenda is that its often Ryans agenda, and the House of Representatives will retain a
solid GOP majority next year.
Congressional Republicans have been eager for years to repeal and replace Obamacare. Trump agrees. Democrats
are determined to keep the law and offer improvements.
Immigration appears headed for another stalemate. Democrats tend to favor a comprehensive approach, combining
a path to citizenship for many immigrants who are already in the U.S. illegally with a crackdown on border
enforcement.
Ryan prefers what he calls stages and pieces, not some big massive bill, starting with tighter border security.
One presidential plank no mandate will save is Trumps calls for a wall between the U.S. and Mexico. Objections
from Democrats, who will have enough Senate strength to block any such proposal, will doom this idea. And if not,
Trumps plan to have Mexico pay for it is likely to go nowhere.
No mandate will be big enough to get Mexico to pay for the wall, said Felts.
First, though, Trump has to get his team in place, and that will prove difficult.
Historically, a new president had his team in place by Jan. 20 and pointed to voter support to push a top priority:
Ronald Reagans 1981 tax cut, Bill Clintons 1993 deficit-reduction plan, George W. Bushs 2001 tax cut and
Barack Obamas overhaul of the health-care system.
That momentum eased the path for ideas that would have been far more difficult to push in later years. Thats hardly
a sure thing this time.
The next president is going to have a really hard time, said Quentin Kidd, the director of the Wason Center for
Public Policy at Christopher Newport University in Virginia. The level of dysfunction that frustrates people is not
going to go away.
( ) No spillover no reason the trans- restroom Aff would cause anyone to vote shift especially on platform
issue like Tax reform

( ) Economys resilient shocks dont spill over


Posen, 16 Adam S. Posen, president of the Peterson Institute for International Economics and external voting
member of the Bank of Englands rate-setting Monetary Policy Committee, Chapter 1: Why We Need a Reality
Check, REALITY CHECK FOR THE GLOBAL ECONOMY, Peterson Institute for International Economics, PIIE
Briefing 16-3, March 2016
A combination of public policies and decentralized private-sector responses to the crisis have increased our economic
resilience , diminished the systemic spillovers between economies, and even created some room for additional
stimulus if needed. Large parts of the global financial system are better capitalized, monitored, and frankly more risk
averse than they were a decade ago, with less leverage. The riskier parts of todays global economy are less directly linked to
the centers growth and financing than when the troubles were within the United States and most of Europe in 2008. Trade imbalances
of many key economies are smaller, though growing, and thus accumulations of foreign debt vulnerabilities are also smaller than a decade
ago. Most central banks are now so committed to stabilization that they are attacked for being too loose or supportive
of markets, making them at least unlikely to repeat some policy errors from 200710 of delaying loosening or even excessive tightening.
Finally, corporate and household balance sheets are far more solid in the US and some other major economies than
they were a decade ago (though not universally), and even in China the perceptions of balance sheet weakness exceed the reality in scope
and scale.

( ) U.S. not key to the global economy.


Molavi 11 Afshin Molavi, Senior Fellow and Co-Director of the World Economic Roundtable at the New
America Foundation, US Economic Power is Part of a Healthier Global Order, The National, 7-4,
http://www.thenational.ae/thenationalconversation/comment/us-economic-power-is-part-of-a-healthier-global-
order#full
Thus, the world faces the prospect of America slipping quietly into a "lost decade" of sluggish growth - of America sneezing and wheezing and coughing, but not facing a crisis
moment. What will this mean for the world? Japan's growth throughout the 1970s and 1980s bolstered many of their Asian trading partners.
Japan's demand was a boon. But Japan's lost decade in the 1990s did not stop the Asian tigers from rising. In some cases, countries such as South Korea and Taiwan even
benefited from the Japanese slowdown, stealing away market share in key industries. The same may happen with an American "lost decade". A World Bank report in late 2009 noted that
Latin American countries - the most exposed to American contagion - did not feel severe effects from the American crisis. The same
goes for other emerging markets. So, perhaps the world will shrug off a steady American economic decline over the
next five years. This is partly because the global economic pie is not a fixed size. As "the rest" rise, it grows. Thus,
America controlled a quarter of the world's GDP in 1970 - roughly the same as today. But the pie is much bigger.
Global GDP has tripled since 1970 and Asia today accounts for a quarter of global GDP . The pie is not only larger,
but it is more balanced . Will there even be a "lost decade" after all? American corporations are sitting on large piles of cash. The problems with the economy have as much
(perhaps more) to do with business confidence as with fundamentals. That could change. To be sure, the world is better off when America grows and produces and innovates. But if the declinists
the world will be too busy to notice: emerging
prove correct, then the clich of "when American sneezes" will truly be tested once and for all. Or perhaps
markets will be growing their middle classes, oil-rich Middle East states will be bolstering ties to Asia, and Chinese investments will flow
across Africa and Latin America. And that sneezing $14 trillion (Dh51.4 trillion) economy would still be the envy of most countries around the world. We can put the clich
to rest: an American sneeze might not breed a global cold after all .

( ) Economic Decline wont cause war empirics go Aff.

Jervis, 11 (Professor PolSci Columbia, 11 (Robert, December, Force in Our Times Survival, Vol 25 No 4, p 403-
425)
Even if war is still seen as evil, the security community could be dissolved if severe conflicts of interest were to arise. Could the more peaceful
world generate new interests that would bring the members of the community into sharp disputes? 45 A zero-sum sense of status would be one
example, perhaps linked to a steep rise in nationalism. More likely would be a worsening of the current economic difficulties, which
could itself produce greater nationalism, undermine democracy and bring back old-fashioned beggar-my-neighbor
economic policies. While these dangers are real, it is hard to believe that the conflicts could be great enough to lead the
members of the community to contemplate fighting each other. It is not so much that economic interdependence has proceeded to
the point where it could not be reversed states that were more internally interdependent than anything seen internationally have fought bloody
civil wars. Rather it is that even if the more extreme versions of free trade and economic liberalism become discredited, it
is hard to see how without building on a preexisting high level of political conflict leaders and mass opinion would
come to believe that their countries could prosper by impoverishing or even attacking others. Is it possible that problems
will not only become severe, but that people will entertain the thought that they have to be solved by war? While a pessimist could note that this
argument does not appear as outlandish as it did before the financial crisis, an optimist could reply (correctly, in my view) that the very fact
that we have seen such a sharp economic down-turn without anyone suggesting that force of arms is the solution
shows that even if bad times bring about greater economic conflict, it will not make war thinkable.
A-to States Cplan
2AC vs. States Cplan

( ) Perm do both

( ) 50 State fiat is a voter.

- Its especially unrealistic The 50 States dont act uniformly.

- It kills topic-education there are Federal Affs like Military Schools or the rare school on Federal
Lands. But, this move us away from the central controversy.

- It kills Aff ground all of the best Fed Key warrants are about State patchworks which they fiat
out of.

( ) Cplan doesnt solve trans- discrimination - three reasons:

- Not a clear signal so norms dont change.

- Federal inaction sanctions local roll-back. Even if the cplan fiats-over bathroom issues, our Delaye ev
says Federal action is needed to check local roll-back outside of schools.

- And Federal Courts must bind Trump in order to solve for our signal advantage.

Hurley 17
Lawrence Hurley - Correspondent at Reuters and former U.S. Supreme Court Reporter for the Los Angeles Daily Journal -
Trump's transgender move puts spotlight on Supreme Court case Reuters, AOL News modified for language that may
offend - available at: https://www.aol.com/article/news/2017/02/24/trumps-transgender-move-puts-spotlight-on-supreme-court-
case/21720864/

The Trump administration's move on Wednesday to rescind guidance allowing transgender students to use the bathrooms
of their choice has raised the stakes for an upcoming U.S. Supreme Court case that could deliver a landmark
decision on the issue.
The eight justices are due to hear oral arguments on March 28 on whether the Gloucester County School Board in Virginia can
block Gavin Grimm, a female-born transgender high school student, from using the boys' bathroom. A ruling is due by the end of June.
A key question in the case is whether a federal law, known as Title IX, which bars sex discrimination in education, covers transgender students.
The Education Department under Democratic President Barack Obama said in guidance to public schools last May that it does, but the
Republican Trump administration withdrew that finding on Wednesday.
The high court on Thursday asked the lawyers involved to file letters by March 1 giving their views on how the Trump action should affect
consideration of the case.
Lawyers for Grimm say that the definition of sex discrimination in Title IX is broad and includes gender identity. The school board maintains that
the law was enacted purely to address "physiological distinctions between men and women."
If the Supreme Court rules that Title IX protects transgender students, the decision would become the law of the land ,
binding the Trump administration and the states.
"This is an incredibly urgent issue for Gavin and these other kids (students) across the country," said Joshua Block, a lawyer with the
American Civil Liberties Union (ACLU) who represents Grimm.
The Trump administration's announcement "only underscores the need for the Supreme Court to bring some clarity
here," he added.
( ) Conditionality is bad it creates time skews and strategy skews. This hurts argument development,
fairness, and education.

( ) Cplan doesnt solve Excess State Flexibility it preserves those State rights. Federal Courts are key
thats Anderson and Choe.

( ) Aff sets a precedent thats needed to resolve a host of discrimination issues that fall outside of K-12
education.
Bookbinder 16
David Bookbinder - Mr. Bookbinder was trained at Princeton University (summa cum laude) and the University of Chicago Law
School. He has designed and taught courses on at Georgetown University Law Center. He is an adjunct scholar at the Niskanen
Center in Washington DC. Amicus Brief - GLOUCESTER COUNTY SCHOOL BOARD, Petitioner, v. G. G., BY HIS
NEXT FRIEND AND MOTHER, DEIRDRE GRIMM, Respondent. On Petition for a Writ of Certiorari to the United States
Court of Appeals for the Fourth Circuit BRIEF OF AMICUS CURIAE WOMEN'S LIBERATION FRONT IN SUPPORT OF
PETITIONER - September Available at SCOUTS blog along with all amicus briefs on this matter continues to footnote -
http://www.scotusblog.com/wp-content/uploads/2016/09/16-273-cert-amicus-WLF.pdf
It is equally clear that the Fourth Circuit has also decided an important question of federal
law that has not been, but should quickly
be , settled by this Court. Twenty-three states and/or their Governors have sued the federal government over the policy of
forbidding schools from restricting students to single-sex facilities - restrooms, locker rooms, showers, single-sex dorms, etc. -
that match their sex. One district court has enjoined the federal policy; another has enjoined a state law that conflicts with
that policy; another has ordered a school district to allow restroom access based on "gender identity". Two other pending cases involve students
and parents suing school districts that the federal government has strong-armed into adopting its policy, and WoLF's own case challenges the
legality of the Dear Colleague guidance document. Enormous resources are being devoted to an explosive issue that this Court has the
opportunity to resolve.
This case also offers an opportunity for the Court to fix this error before it spreads any further; lost in the litigation
fog is the fact that Title IX applies to "any education program or activity receiving Federal financial assistance ," 20
U.S.C. 1681(a) (emphasis added). According to DOE, tens of thousands of museums, libraries and other
institutions also receive federal education funding, and thus are subject to this policy. FN4
FN4 Federal "on-budget funds for education" includes $9.5 billion for "other education" programs, which "includes libraries,
museums, cultural activities, and miscellaneous research." U.S. Department of Education, National Center for Education Statistics,
Digest of Education Statistics 2014 (available at http://nces. ed.gov/pubs2016/2016006.pdf), p. 730 and n.3. These funds are distributed by DOE
and by the Departments of Agriculture, Commerce, Defense, Energy, Health and Human Services, Homeland Security, Housing and Urban
Development, Labor, State, Transportation, Treasury, and Veterans Affairs, and more than 20 independent agencies. Id. pp. 733-738.

( ) Cplan obviously doesnt solve Agency Deference it sends no precedent on the Federal Level.
1AR Extension Cplan doesnt solve Trans- Discrimination

Extend that the Cplan doesnt solve trans- discrimination:

- Federal inaction encourages local roll-back outside of the bathroom issues.

- It doesnt bind Trump hurting the signal.

- Clear Federal signal is key otherwise teachers have uncertain guidance when they see violations.
OBrien 17
et al; Alice OBrien is The General Counsel at National Education Association. The author holds a J.D. from The Georgetown
University Law Center and a B.A. from Yale. 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 NATIONAL EDUCATION ASSOCIATION; AMERICAN FEDERATION OF TEACHERS, AFL-
CIO; NATIONAL ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS; AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO; SERVICE EMPLOYEES INTERNATIONAL UNION; AND
SCHOOL SOCIAL WORK ASSOCIATION OF AMERICA AS AMICI CURIAE 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_bsac_national_education_association.pdf

Concluding that Title IX proscribes transgender discrimination would provide administrable rules for education
employees; a contrary ruling will create confusion and sow discord
Although the Departments of Justice and Education have recently withdrawn their guidance explaining that
compliance with Title IX requires equal treatment for transgender students, they did so without directly repudiating the legal
conclusions in those documents. See Civil Rights Div., U.S. Dep't of Justice & Office for Civil Rights, U.S. Dep't of Educ, Dear Colleague Letter,
Withdrawal of Title IX Guid-ance (Feb. 22, 2017), https://www.justice.gov/opa/ press-release/file/941551/do wnload.
Amici agree with the legal conclusions in the original Dear Colleague Letter**' and can tell the Court unequivocally that the interpretation of
Title IX found in the now-rescinded Departments of Justice and Education's guidance and the model policies offered therein7 have been
successfully adopted by schools throughout the nation. Indeed, at least fourteen states and the District of Columbia explicitly prohibit gender
identity-based discrimination in education.8 Likewise, numerous school districts and individual schools have adopted policies that protect the
rights of transgender students and create safe learning environments.9 These policies protect the rights of transgender students by, among other
things, ensuring that transgender students are allowed to use sex-segregated facilities consistent with their gender identity and that students are
referred to by names and pronouns consistent with their gender identity.
2. On the other hand, a decision holding that transgender students are not categorically protected by Title IX would sow confusion and discord in
public schools.
Even if lawyers and judges can drawn a line between transgender discrimination and sex-stereotyping discrimination as some courts have tried to
doand we believe that such a line is illusoryeducators and public school employees find such line drawing impossible to apply in the real
world.
Educators face this real problem today. Suppose one student harasses a transgender student. Title IX is violated "when peer
harassment based on .. . sex ... is sufficiently serious that it creates a hostile environment and such harassment is encouraged,
tolerated, not adequately addressed, or ignored by school employees." Seey e.g., Office for Civil Rights, U.S. Dep't of Educ, Dear Colleague
Letter, Harassment and Bullying 8 (Oct. 26, 2010), https://www2.ed.gov/ about/offices/list/ocr/letters/colleague-201010. html.
Should the Court conclude that transgender discrimination is prohibited sex discrimination under Title IX, the
teacher's duty is clear : address and report the harassment. But if the Court were to adopt the view of a minority of the lower courts
that Title IX may prohibit some but not all forms of discrimination against transgender students teachers would be left in
the lurch . What are their duties to transgender students and when are they triggered? Must teachers parse the harasser's motivation to determine
whether the harassment is motivated by sex stereotypes or transgender animus? This is complicated by Petitioner's assertion that
non-discrimination against transgender students "would perpetuate discrimination in a different form" against other
students. Pet'r's Br. 39-41. If that were true , how would educators prevent and remedy sex stereotyping discrimination or
harassment against transgender students while avoiding discrimination against others?
A clear ruling holding that transgender discrimination violates Title IX will go a long way toward clarifying which
duties public school districts, educators, and other school employees have to transgender students. A contrary ruling would
only muddle their duties .
A-to other specific Disads
A-to Legitimacy Disad

Not unique and Turn. Legitimacy is low due to diverging Federal rulings and because The Court is seen as
ducking the issue.
Dorf 17
Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus Test:
Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice Anthony
Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard as an
undergraduate, he was the American Parliamentary Debate Association national champion. SCOTUS Sends Transgender
Restroom Case Back to 4th Circuit: Passively Virtuous or Subtly Vicious? - Dorf on Law - Wednesday, March 08, 2017. This
evidence internally references and refutes the claims of Alexander Bickel. Bickel was a law professor and his writings emphasize
judicial restraint. This article also internally references Gerald Gunther who criticized Bickel. Gunther was a prominent
constitutional law scholar and a Professor of Law at Stanford Law School - http://www.dorfonlaw.org/2017/03/scotus-sends-
transgender-restroom-case.html

On Monday, the SCOTUS docket shrank by one case when the Court removed Gloucester County v. G.G . from its
argument calendar. The action is not entirely unexpected. On February 23, the clerk directed the parties to file letters with their views on how
the case ought to proceed in light of the fact that the Trump administration had withdrawn the Department of Education guidance that was at the
root of two of the three questions on which the Court had granted certiorari--involving questions of administrative law. Yet the Court's decision to
vacate and remand to the Fourth Circuit was hardly a foregone conclusion given that the third question--whether the school board's policy
excluding transgender students like plaintiff Gavin Grimm from the restroom corresponding to his gender identity violates Title IX itself--was
still very much alive AND that both parties had urged the Court to keep the case on the docket and address that question.
That issue will now go back to the Fourth Circuit. As Sam Bagenstos, Marty Lederman, Leah Litman, and I noted here last week, an amicus brief
we filed in the SCOTUS lays out a straightforward reason why Grimm should win under Title IX, even without a resolution of the question
whether discrimination on the basis of gender identity is sex discrimination within the meaning of Title IX: the school board policy undoubtedly
segregates on the basis of sex, and as applied to transgender students, such segregation amounts to unlawful discrimination because it imposes
severe harm on such students without furthering any important institutional interests. Needless to say, we hope that the Fourth Circuit
will now rule for Grimm on that basis (or another).
Meanwhile, in my latest Verdict column I explain why the Trump administration's justification for its volte-face--states' rights--should be
rejected. The usual sorts of reasons for granting states flexibility--explicit statutory programs of cooperative federalism, local variation in
conditions, experimentation--have relatively little purchase with respect to a federal civil rights statute. The column also considers the possibility
that federalism could serve as a means of avoiding backlash, analogizing to the fears that led to the "all deliberate speed" formula in Brown II and
the hand-wringing by Chief Justice Roberts in his dissent in Obergefell v. Hodges. As those examples themselves show, I conclude, it is easy
to get carried away with a go-slow approach, and so the better course is usually for a court simply to apply its best
legal judgment.
Yet there is a distinct possibility that the Supreme Court vacated and remanded in Gloucester County--rather than
retaining the case on its docket--out of a similar go-slow approach. Would that be legitimate?
Fifty-six years ago, Alexander Bickel famously argued that in order to maintain its prestige and credibility, the Supreme
Court sometimes needed to avoid deciding divisive cases by exercising what he called "the passive virtues." By
invoking the political question doctrine, standing rules, and other limits on its jurisdiction, as well as by exercising its discretion not to
decide , Bickel thought the Court could and should duck certain questions. When Bickel wrote, it was harder for the Court to duck
hard questions because a substantial chunk of the Court's business was on its mandatory appellate (rather than its discretionary certiorari) docket,
which is why one of the ducking techniques Bickel endorsed was for the Court to treat mandatory appeals as though they were discretionary by
summarily affirming or reversing lower court rulings. Since 1988 the Court has had virtually no mandatory appellate jurisdiction. Today, if the
Court wants to duck an issue it can simply deny certiorari.
But if denying certiorari enables the SCOTUS to duck an issue, it does not enable the federal courts as a whole to
duck the issue. District courts and federal courts of appeals have almost no discretion to decline cases that fall within their
jurisdiction. And if the SCOTUS is worried that the courts are getting ahead of the country in a way that could spark a
backlash, then the Court pretty much has to grant cert to rein them in, or else suffer the backlash.
That may well be what was going on in Gloucester County. Perhaps a majority of justices think (or would think, if they
carefully considered the question) that Title IX forbids restroom policies like the one adopted by the Gloucester County
school board but these justices also think that the country isn't ready for such a ruling. If so, they would have denied cert in any
case rejecting a claim like Grimm's but would have felt they had no choice but to grant in the actual Fourth Circuit case, where Grimm won in the
Court below. If that's true--and to be clear, this is pure speculation on my part--then that would also explain why the Court has vacated and sent
the case back to the Fourth Circuit: the justices are trying to duck the issue.
Yet issue ducking is not cost-free. In a famous law review article of his own, Gerald Gunther criticized what he called "the
subtle vices" of Bickel's "passive virtues." Gunther pointed out the curious fact that Bickel thought it extremely important for the
Court to be principled and candid in its decisions on the merits but that Bickel endorsed a kind of chicanery regarding the exercise of
jurisdiction. In a case with potential parallels to Gloucester County , Gunther deplored Bickel's endorsement of the Court's
dishonest manipulation of its jurisdictional statute in order to avoid having to rule on the merits that an anti-
miscegenation statute was invalid at a time when white Southerners were still denouncing the Court over school desegregation . Although
Gunther does not use the term, he essentially accuses Bickel of endorsing cowardice.
Whether or not that is a fair charge when Gunther leveled it against Bickel, we can ask whether it would be a fair
charge if now leveled at the Supreme Court. Suppose that at least five justices think that the correct legal answer in
Gloucester County is that Gavin Grimm prevails under Title IX but that they sent the case back to the Fourth Circuit
in order to duck the issue. Would that be a form of cowardice?
Of course it need not be. The Court generally (though not always) prefers for the courts of appeals to weigh in on an issue before it considers the
matter itself, so the remand can be justified on the ground of standard practice. But again, I'm supposing that this was not the actual motivation.
The actual motivation (in my speculation) was to duck the issue until such time that the Court can decide in favor of a transgender student's right
to use the restroom corresponding to his gender identity without sparking a backlash. Is that cowardly? Whether or not it is cowardly, is it
justified?
I don't want to call anyone a coward, so I'll answer the second question and simply say I think it is not justified. Even assuming that there
is sometimes a place for Bickel's passive virtues, I doubt very much that this is such a place . For one thing, a backlash
would likely be ineffective. Congress could amend Title IX, but the Supreme Court could--and I think should--find for Grimm or the next
plaintiff like him based on the Equal Protection Clause as well. Such a constitutional ruling could not be superseded by Congress.
Moreover, insofar as the justices are worried about backlash, I think they are flat-out mistaken. Ted Cruz could not even
win a Republican primary by demagoguing to the far right of Donald Trump on trans gender restroom access. Yes, some
of the same people who are still freaked out about same-sex marriage are freaked out by the very existence of transgender Americans, but this
is simply not an issue that will generate much resistance to the courts .
Do I know that for sure? Of course not. But I'll end with two caveats. First, the fact that Trump moved from making trans-friendly
noises during the campaign to revoking the Obama Department of Education policy does not indicate that there would be
substantial opposition to a ruling for Grimm or the next plaintiff in his position. Trump has given over much of his domestic policy
shop to the social conservative far right. Even Trump's own highly problematic Secretary of Education --Besty DeVos--was
reportedly opposed to the policy change, which probably gives a pretty good sense of where the mainstream of the
Republican party is on this issue. And if I've over-estimated the level of existing acceptance, a ruling for Grimm would quickly
change attitudes , as people discovered that transgender access to restrooms causes nobody any harm.
Second, following Gunther, I would think the Court should reserve the Bickelian passive virtues for rare cases where there really is a clear
imperative to duck a case for fear that a substantively correct ruling would cause serious harm. I could be wrong about the impact of a ruling for
Grimm, but I'm not clearly wrong. Accordingly, if the Court sent the case back down to the Fourth Circuit to duck the issue on
Bickelian grounds, it made the wrong call.
A-to Trans~ Feigning Disad

The Trans~ Feigning rationale is flawed no evidence supports it.


Dorf 17
et al; Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus
Test: Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice
Anthony Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard
as an undergraduate, he was the American Parliamentary Debate Association national champion. In the Supreme Court of the
United States: Gloucester County School Board, Petitioner, v. G.G., by his next friend and mother, Deirdre Grimm,Respondent.
Amicus Briefs - On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit March 2, 2017 AMICI
CURIAE IN SUPPORT OF RESPONDENT Modified for potentially objectionable language -
https://www.aclu.org/sites/default/files/field_document/16-273_bsac_bagenstos_et_al.pdf

Instead, some of the Board's amici argue that a policy of permitting transgender students to use restrooms corresponding to
their gender identity will prompt other, ill-intentioned individuals to feign transgender status "in order to gain easier
access to these sensitive spaces" to harm others, William J. Bennett Amicus Br. at 22, or to "seek[] cheap thrills," Public Safety
Experts Amicus Br. at 7an idea that does appear to have motivated at least one member of the Gloucester community who spoke at the Board
meeting where the restroom policy was debated. See J.A. 70 ("Some speakers claimed that transgender students' use of restrooms that
match their gender identity . . . would lead to sexual assault in bathrooms. Another suggested that boys who are not transgender would
come to school wearing a dress and demand to use the girls' restroom for nefarious purposes ") (emphasis added).
The Board itself does not press this safety argumentand with good reason. For one thing, many jurisdictions around
the nation have , for many years, guaranteed transgender persons access to restrooms corresponding to their gender
identity, and "[n]one of these jurisdictions has reported a rise in sexual violence or other public safety issues following
the enactment of these laws." Anti-Sexual-Assault, et al. Orgs. Amicus Br. at 4. Moreover, neither the Board nor its amici suggest there has been
any appreciable increase in restroom-related violence or threats at those colleges and universities in which coeducational restrooms have become
ubiquitous.
Regardless of whether and to what extent there might be such risks in other settings, however, there is certainly no basis for surmising
that any such improper "transgender feigning" will occur in high schools. The notion that, for example, male students at
Gloucester High School will try to masquerade as transgender in order to access the girls' restroom for "cheap thrills" or other
nefarious purposes, is nonsense, especially in light of the stigma that ordinarily accompanies transgender status. There is, as far as we
know, no evidence of any such thing happening at any school, ever. And if any student were to be so bold as to try such a gambit,
the school principal would undoubtedly call him out on it right away, or at least seek some verification.
There is, in short, nothing at all to the idea, implicit in the Board's policy, that prohibiting transgender students from using restrooms correlated
with their gender identities is necessary in order to "provide a safe learning environment for all students."

No evidence supports trans- feigning or safety disads


Grossman 17
Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law. Another
Senseless Act of Destruction: The Trump Administration Undermines Protections for Transgender Students Verdict Feb 28th
- https://verdict.justia.com/2017/02/28/another-senseless-act-destruction-trump-administration-undermines-protections-
transgender-students
The bathroom wars are far from overthey seem to be gaining, rather than losing, steam. But they remain somewhat inexplicable. A
pervasive problem with all the restrictive bathroom policies at the state and federal level is that those who have supported
and enacted them have done so without a shred of evidence that they serve any purpose other than to harm an already
vulnerable group. The two arguments in favor of forcing transgender students to use the bathroom aligned with their
birth sex are that transgender women are likely to assault other women in the bathroom or that men will pretend to be
transgender in order to gain access to the girls restrooms, where they will assault them. Neither of these claims are
supported by any evidence. Yet, this false narrative about safety has dominated the conversation. The Trump
Administrations thoughtless withdrawal of these letters (apparently over the objection of Secretary DeVos) simply furthers it.
A-to Cis Privacy/Safety Disads

CIS privacy disad is wrong. It falsely assumes a greater risk with trans~ students. And, architecture checks
Dorf 17
et al; Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus
Test: Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice
Anthony Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard
as an undergraduate, he was the American Parliamentary Debate Association national champion. In the Supreme Court of the
United States: Gloucester County School Board, Petitioner, v. G.G., by his next friend and mother, Deirdre Grimm,Respondent.
Amicus Briefs - On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit March 2, 2017 AMICI
CURIAE IN SUPPORT OF RESPONDENT Modified for potentially objectionable language -
https://www.aclu.org/sites/default/files/field_document/16-273_bsac_bagenstos_et_al.pdf

2.Privacy/"Disrobing." Nor does the Board explain how its exclusion of Gavin and other transgender students from
restrooms corresponding to their gender identity might "protect the privacy of all students." J.A. 16. Presumably the Board
means to invoke Judge Niemeyer's statement, in his dissenting opinion in the court of appeals, that "[a)n individual has a legitimate and
important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not
exposed to persons of the opposite biological sex" Pet. App. 57 (emphasis added); see also Board Br. at 7 (referring to students'
interest in not "disrobing in front of the other sex") (citation omitted).
Protecting such student privacy concerns ensuring that they do not unwillingly expose to others their "nude or
partially nude bod[ies], genitalia, and other private parts" while in school can certainly be an important institutional
interest, especially when it comes to adolescents. But it does not follow that it is necessary to exclude transgender
students from restrooms in order to advance that interest. For one thing, architecture ( rather than law ) has effectively
eliminated any potential problem associated with this privacy-related interest in restrooms: There is hardly a school restroom
in the nation where any student must expose "his or her nude or partially nude body, genitalia, and other private parts" to
anyone.14 Indeed, it is fair to assume that future developments in bathroom design will provide even greater such
privacy protection which helps explain why unisex restrooms are becoming increasingly common, and uncontroversial, in other nations
and at many U.S. colleges and universities.15 Moreover, it is not clear why this privacy interest is more frequently implicated
when it comes to the presence of transgender students in particular, compared to other students who present as the same sex as
those transgender students. After all, most students prefer to avoid such exposure of their bodies to any peers , and that
concern is not obviously correlated with whether the peers in question have one or another set of external reproductive organs. 16
(continues to footnote 16)
16 Perhaps Judge Niemeyer was assuming that, e.g., transgender girls are more likely to be sexually attracted to other girls in a "female"
restroom than nontransgender girls will be. It is now widely understood, however, that people's sexual orientation, regardless of whether they are
transgender, will not uniformly be directed to persons with different reproductive organs.

Cis privacy & safety rationales are nonsense. It is wrong to say trans~ students pose a unique risk.
Dorf 17
et al; Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus
Test: Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice
Anthony Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard
as an undergraduate, he was the American Parliamentary Debate Association national champion. In the Supreme Court of the
United States: Gloucester County School Board, Petitioner, v. G.G., by his next friend and mother, Deirdre Grimm,Respondent.
Amicus Briefs - On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit March 2, 2017 AMICI
CURIAE IN SUPPORT OF RESPONDENT Modified for potentially objectionable language -
https://www.aclu.org/sites/default/files/field_document/16-273_bsac_bagenstos_et_al.pdf

The School's Asserted Interests in Preventing Transgender Students from Using Restrooms Corresponding to Their Gender Identity
What is worse, the Board utterly fails to invoke any '"important. . . objectives" VMJ, 518 U.S. at 533 (quoting Hogan, 458 U.S. at 724),
that might conceivably justify inflicting such harms on Gavin and other transgender students. Strikingly, its brief to this Court
barely mentions any such objectives at all.
The challenged restroom policy itself, on the other hand, does at least point to two reasonable-sounding institutional objectives, albeit ones that
have little bearing on the Policy's application to Gavin and other transgender students. The policy states that "GCPS seeks to provide a
safe learning environment for all students and to protect the privacy of all students." J.A. 16. The Board has not,
however, demonstrated that prohibiting transgender students from using restrooms correlated with their gender
identities will even advance any interests in student safety or privacylet alone that such exclusion is necessary to
secure those goals. Cf. VMI, 518 U.S. at 533 ("The burden of justification is demanding and it rests entirely with the
state .").
1. Safety. The Board offers not a word in support of the notion that excluding Gavin from "male"-designated restrooms
is necessary "to provide a safe learning environment for all students. " And of course neither the Board nor its many amici
advances the groundless notion that Gavin and other transgender students are likely to harm other students in such
restroomsor, more to the point, that they pose any different or greater such risks than other students who are present in
those same restrooms.13

(Note: GCPS is an acronym for Gloucester County Public Schools)

Cis-Safety and comfort disads are overwhelmingly empirically false. The Aff is net better for reducing
violence.
Segal 17
et al; Richard Segal is an attorney with the firm PlLLSBURY, WlNTHROP, SHAW and Pittman LLP. Richard holds a J.D., from
Harvard Law School and a B.A. in Political Science from Yale 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 - BRIEF OF AMICI CURIAE SCHOOL ADMINISTRATORS FROM THIRTY-ONE
STATES AND THE DISTRICT OF COLUMBIA 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_bsac_school_of_administrators_from_thirty-one_states_and_the_dis.pdf

Amici are school districts, superintendents, principals, school board members, general counsel, social workers, and other officials from
schools and school districts that have adopted, or are in the process of adopting, inclusive policies and practices for their transgender
students.2 Together, amici represent a broad cross-section of schools and districts from thirty-one States plus the
District of Columbia, collectively responsible for educating approximately 2.1 million students annually. Amici offer
valuable perspectives on a number of the issues in this case, based on their broad collective experience with adopting, implementing, and
enforcing such policies in their schools. Counsel for amici conducted interviews with certain individual amici in Fall 2015, Spring2016,
and Fall 2016 to obtain their input for this or earlier versions of this brief; synopses of amici interviews are on file with amici's counsel Pillsbury
Winthrop Shaw Pittman LLP. Amici who were not interviewed or are not quoted in this brief have experiences consistent with those expressed
herein.
The Appendix contains a list of amici and their background and relevant experience.
Thousands of transgender students attend American schools every day, many of whom - such as Respondent G.G. - have come forward to request
from their schools the same support and respect for their gender identity that all other students receive as a matter of course. In amici's view, it is
both the legal and professional obligation of all educators to provide that support and respect to all students.
Amici's collective experiences refute the hypothetical concerns raised here by Petitioner Gloucester County School Board: that
allowing all students to access sex-specific facilities and amenities that match their gender identity will lead to
general disruption; will violate the privacy or "comfort" of other students; or will lead to the abolition of gender-
segregated facilities and activities for all students. Amici have addressed and in some cases personally grappled with many of the
same fears and concerns in their own schools and districts. However, in amici's professional experience, none of those fears and
concerns has materialized in the form of actual problems in their schools . Instead, inclusive policies not only fully support
the reality of transgender students' circumstances, but also foster a safer and more welcoming learning environment for all students.
A-to Cis-Privacy Disads

No link to the cis-privacy disad. Those with privacy concerns can use gender-neutral facilities and theres no
student backlash anyway.
OBrien 17
et al; Alice OBrien is The General Counsel at National Education Association. The author holds a J.D. from The Georgetown
University Law Center and a B.A. from Yale. 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 NATIONAL EDUCATION ASSOCIATION; AMERICAN FEDERATION OF TEACHERS, AFL-
CIO; NATIONAL ASSOCIATION OF SECONDARY SCHOOL PRINCIPALS; AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO; SERVICE EMPLOYEES INTERNATIONAL UNION; AND
SCHOOL SOCIAL WORK ASSOCIATION OF AMERICA AS AMICI CURIAE 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_bsac_national_education_association.pdf

Fortunately, all
students' privacy interests can be addressed without discriminating against trans gender students. In
schools that permit transgender students to use the facilities commensurate with their gender identity, gender-neutral
facilities are commonly open to any student who would rather not use a sex-segregated facility, and installations that
increase privacy for everyone in sex-segregated facilities are beneficial to all students. That said, the majority of out
transgender students report that their classmates are supportive. James, supra, at 137.
It is also our members' experience that other students rarely have problems with transgender students accessing sex-
segregated facilities consistent with their gender identity. As with Gavin's case, most objections to transgender students using sex-
segregated facilities are raised not by other students but by political leaders and adults acting out of fear and disdain for transgender students.
A-to Public Safety Disads

Theres no empirical proof for the public safety disad


Underwood 17
Barbara D. Underwood is the Solicitor General of New York. Underwood earned an A.B magna cum laude from Radcliffe
College of Harvard University in 1966 and received her law degree from Georgetown University Law Center in 1969.
Underwood clerked for then Associate Justice Thurgood Marshall of the Supreme Court from 1971 to 1972. Underwood was a
law professor for 10 years at the Yale Law School, from 1972 to 1982. She has argued twenty cases before the U.S. Supreme
Court. 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 States of New York,
Washington, California, Connecticut, Delaware, Hawai'i, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New
Mexico, Oregon. Pennsylvania, Rhode Island, Vermont, and Virginia, and The District of Columbia, 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-States-28CORRECTED29.pdf

2. Public safety is not compromised when transgender people are protected from discrimination through policies
allowing them to use common restrooms corresponding to their gender identity.
Petitioner suggests that its policy of denying transgender students access to common restrooms consistent with their gender
identity is necessary to protect students from bad actors whounlike G.G. and other transgender students legitimately seeking to
"liv[e] in a manner that is consistent with their gender identity" (Eesp. Br. 10)will attempt to "use the opposite sex's" restrooms "for less worthy
reasons." Pet. Br. 37. Petitioner, however, provides no support for that assertion, which is belied by the experience of the
many jurisdictions where nondiscrimination is already the law. Reviews of public school records in States that allow transgender people to
use the bathrooms corresponding to their gender identity have failed to turn up any examples of transgender students harassing
others in restrooms or locker rooms.59
One of petitioner's amici nonetheless attempts to conjure a safety threat by citing examples of sex offenders and voyeurs who
have invaded women's restrooms without regard to transgender policies, and then speculating that accommodating transgender students
would facilitate even more of that same criminal behavior.60 The speculation that this criminal conduct will increase if trans gender
people are treated fairly is unfounded, and is contrary to the actual experience of States and local jurisdictions that allow
transgender people to access facilities matching their gender identity.61

Turn harassment is more likely towards trans- students if theyre forced to use bathrooms that dont
correspond with gender identity.
Underwood 17
Barbara D. Underwood is the Solicitor General of New York. Underwood earned an A.B magna cum laude from Radcliffe
College of Harvard University in 1966 and received her law degree from Georgetown University Law Center in 1969.
Underwood clerked for then Associate Justice Thurgood Marshall of the Supreme Court from 1971 to 1972. Underwood was a
law professor for 10 years at the Yale Law School, from 1972 to 1982. She has argued twenty cases before the U.S. Supreme
Court. 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 States of New York,
Washington, California, Connecticut, Delaware, Hawai'i, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New
Mexico, Oregon. Pennsylvania, Rhode Island, Vermont, and Virginia, and The District of Columbia, 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-States-28CORRECTED29.pdf

Petitioner's policy subjects G.G. and other transgender students to just such discrimination. Under that policy, transgender people are
needlessly denied a privilege most people take for grantedthe ability to use a public restroom consistent with their
lived experience of their gender. Transgender people are thus singled out and forced either to forgo restroom use or to choose between
two other detrimental and demeaning options. First, they can in principle use common restrooms corresponding to their sex
assigned at birth. But doing so transgresses a core aspect of their identities, violates medical treatment protocols (see JA 66-67),
and subjects them to potential harassment and violence .82 Second, transgender people can use single-use restrooms. Yet
such facilities may not be readily available and, in any event, the use of such facilities may have stigmatizing effects. For example, use of such a
facility may result in "outing" the individual as transgender in a setting where he or she could be exposed to danger or prefers to keep that aspect
of his or her identity private. See Resp. Br. 31-32.
Public safety disad is illogical such conduct is already illegal under other laws.
Underwood 17
Barbara D. Underwood is the Solicitor General of New York. Underwood earned an A.B magna cum laude from Radcliffe
College of Harvard University in 1966 and received her law degree from Georgetown University Law Center in 1969.
Underwood clerked for then Associate Justice Thurgood Marshall of the Supreme Court from 1971 to 1972. Underwood was a
law professor for 10 years at the Yale Law School, from 1972 to 1982. She has argued twenty cases before the U.S. Supreme
Court. 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 States of New York,
Washington, California, Connecticut, Delaware, Hawai'i, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New
Mexico, Oregon. Pennsylvania, Rhode Island, Vermont, and Virginia, and The District of Columbia, 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-States-28CORRECTED29.pdf

In such jurisdictions, the public-safety concerns often cited in support of policies like petitioner's simply have not
materialized.62 For instance, former Snohomish County Sheriff John Lovick described Washington State's experience : "We've
protected gay and transgender people from discrimination in Washington for 10 years, with no increase in public safety
incidents as a result. It's important to remember that indecent exposure , voyeurism, and sexual assault, are already
illegal, and police use those laws to keep people safe."63 Similarly, in 2013, the Los Angeles Unified School District
the second largest district in the country, with more than 640,000 K-12 students reported to the California Legislature
that the school district had "no issues, problems or lawsuits as a result of [a 2004] policy" requiring that students be
allowed to use restrooms corresponding to their gender identity.64 And the Massachusetts Chiefs of Police Association reported
that allowing people to use bathrooms consistent with their gender identity in places of public accommodation actually "improve[s] public
safety."65 In Texas, meanwhile, officials in Austin, Dallas, and El Paso found no increase in restroom safety incidents as a result of those cities'
policies allowing transgender people to use restrooms consistent with their gender identity.66
A-to Religious Freedom Disads

No link and impact turn. Aff doesnt violate religious freedom and their legal rationale justifies abhorrent
laws.
Fleishman 17
et al; Barry J. Fleishman attorney at Shapiro, Lifschitz & Schram, PC.; and Counsel of Record for this Amicus Brief - 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 ANTI-DEFAMATION
LEAGUE 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_bsac_anti-
defamation_league_et_al.pdf

Gavin Grimm ("Gavin") is a 17-year-old boy who attends the public Gloucester High School in Virginia. He is transgender
and, with his school administration's approval, had been using the boys' restrooms for seven weeks. Some parents and members of the
community, however, complained that Gavin's sharing a restroom with other boys was contrary to their religious beliefs and sense
of morality. They shared these complaints with the Gloucester County School Board (the "Board"). Subsequently, the Board adopted a policy to
ban Gavin from the boys' restrooms.3
History shows us that some of this nation's most abhorrent laws and practiceslaws and practices that are now considered
anachronistic blemishes on our historywere grounded in and defended by religious and moral justifications. For three-quarters of a
century, this Court has refused to uphold laws disadvantaging politically unpopular groups based on religious or
moral disapproval alonewith the one, now-discredited exception of Bowers v. Hardwick, 478 U.S. 186 (1986). Numerous
amici supporting Petitioner now argue that the Court should rewind decades of constitutional precedent and uphold a public school board's
discriminatory policy simply because of their religious-based disapproval of transgender people. Amici urge the Court to reject this argument.
Title IX (Education Amendments of 1972, 20 U.S.C. 1681-1688) and the Equal Protection Clause of the Fourteenth Amendment (U.S. Const,
amend. XIV, 1) protect Gavin's right to equal treatment and equal educational opportunities, including the right to use the restroom congruent
with his gender identity. Religious disapproval, whether espoused by Petitioner's amici or by parents at the school, cannot be an excuse for a
public school board to discriminate against and ostracize a student because of his gender identity. Moreover, were a student at Gloucester
High School to raise a religious/moral-based objection to sharing a restroom with a trans gender student, there would be no
conflict because a reasonable accommodation for that student's religious beliefs or desire for privacy that does not deny transgender students
equal treatment and opportunities is available- that student is free to use the school's unisex, single-stall restrooms. That student
is not entitled, however, to discriminate against transgender students.
Regardless of whether religious-based arguments are asserted under the guise of privacy or modesty, or are explicitly premised on religious
belief, this Court should exercise extraordinary caution to ensure that religious liberty serves as a shield, not as a
sword that curtails the rights of others and thwarts federal civil rights and antidiscrimination laws. This concern is
particularly substantial where, as here, Petitioner and various amici seek enforcement of their religious beliefs through the exercise of authority of
a government-controlled public school system, and where that enforcement would allow discrimination against a class of people who historically
have been the target of prejudice, disapproval, and violence, including within the specific context of public restrooms.4 Just as the United States
Constitution does not allow the religious beliefs of some to be used to discriminate against same-sex couples seeking to marry, Obergefell v.
Hodges, 135 S. Ct. 2584 (2015), so too does it prohibit Petitioner from using religion as a sword to deny the protections of Title IX to a
transgender student who seeks only to use a restroom that comports with his gender identity.
A-to Aff = violates the Spending Clause

No link to Spending Clause Disad Clarifications are allowed, and States can reject the funds anyway
Underwood 17
Barbara D. Underwood is the Solicitor General of New York. Underwood earned an A.B magna cum laude from Radcliffe
College of Harvard University in 1966 and received her law degree from Georgetown University Law Center in 1969.
Underwood clerked for then Associate Justice Thurgood Marshall of the Supreme Court from 1971 to 1972. Underwood was a
law professor for 10 years at the Yale Law School, from 1972 to 1982. She has argued twenty cases before the U.S. Supreme
Court. 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 States of New York,
Washington, California, Connecticut, Delaware, Hawai'i, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New
Mexico, Oregon. Pennsylvania, Rhode Island, Vermont, and Virginia, and The District of Columbia, 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-States-28CORRECTED29.pdf

Applying Title IXs Mandate of Gender Equality to the Circumstances of This Case Does Not Violate the Spending
Clause.
There is no merit to petitioner's claim that if Title IX is interpreted to grant G.G. and other transgender students access to
common restrooms consistent with their gender identity, that interpretation will impose a new condition on the receipt of
federal education funds in violation of the Spending Clause. See Pet. Br. 41-43; see also West Va. et al. Amicus Br. 28-35 (arguing
that Spending Clause categorically prohibits deference to agency interpretations of provisions governing spending-clause programs). It is
undisputed that Title IX lawfully requires recipients of federal funds to refrain from discrimination based on sex. And contrary to
petitioner's suggestion, the application of that principle to new facts and new discriminatory policies does not create a new mandate
the recipient can
violating the requirement that conditions on the receipt of federal funds must be announced in advance, at a time when
decide whether or not to accept the funds.
This Court made clear decades ago that when Congress places conditions on the receipt of federal funds in the
exercise of its Spending Clause power, it need not "specifically identif[y] and proscrib[e]" each and every condition in the
relevant legislation. Bennett v. Ky. Dep't of Educ, 470 U.S. 656, 665-66 (1985). Accordingly, clarification of the details of such conditions may
be within the bounds of a statute itself and therefore permissible and appropriate. See id.

The Aff sets no precedent on the Spending Clause multiple Court cases confirm
Underwood 17
Barbara D. Underwood is the Solicitor General of New York. Underwood earned an A.B magna cum laude from Radcliffe
College of Harvard University in 1966 and received her law degree from Georgetown University Law Center in 1969.
Underwood clerked for then Associate Justice Thurgood Marshall of the Supreme Court from 1971 to 1972. Underwood was a
law professor for 10 years at the Yale Law School, from 1972 to 1982. She has argued twenty cases before the U.S. Supreme
Court. 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 States of New York,
Washington, California, Connecticut, Delaware, Hawai'i, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New
Mexico, Oregon. Pennsylvania, Rhode Island, Vermont, and Virginia, and The District of Columbia, 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-States-28CORRECTED29.pdf

Indeed, this Court has long applied the broad anti-discriminatory commands of Title IX and comparable antidiscrimination
laws to particular discriminatory conduct without suggesting that it was imposing new obligations. For instance, in
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)a watershed Title VII decisionthe Court held for the first time that sex
discrimination includes disparate treatment based on an employee's failure to live up to gender stereotypes.78 The gravamen of
plaintiffs claim was that her employer had impermissibly declined to promote her to partnership because of her nonconformity with stereotypes
about women: in the partners' view, she was "macho," should "take 'a course at charm school,'" and should "walk more femininely, talk more
femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." Id. at 235 (plurality op.).
This Court rejected the notion that refusing to promote plaintiff on these bases was mere "sex stereotyping" that somehow fell
outside Title VIIs ban on gender discrimination. Id. at 251 (plurality op.); see also id. at 272-73 (O'Connor, J., concurring in the
judgment). The Court emphasized that "we are beyond the day when an employer could evaluate employees by assuming or insisting that they
matched the stereotype associated with their group." Id. at 251 (plurality op.). As the Court explained, "Congress intended to strike at the entire
spectrum of disparate treatment of men and women resulting from sex stereotypes." Id. (quotation marks omitted; emphasis added).
Price Waterhouse thus made clear that federal sex-discrimination laws cover more than just discrimination based on
an individual's biological status as "male" or "female"and it did so without hinting that its application of Title VII to the distinct
circumstances of that case created a new rule of conduct. Along similar lines, the Court in Oncale v. Sundowner Offshore Services, Inc., applied
Title VII in the novel context of male-on-male sexual harassment. 523 U.S. 75, 79-80 (1998). The Court expressly acknowledged that such
harassment "was assuredly not the principal evil Congress was concerned with when it enacted Title VII." Id. As the Court explained, however,
"statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils." Id.19
A-to Court Stripping if the plan rules on Equal Protection Grounds

Congress wont strip a Constitutional ruling checks and public attitudes will shift

Dorf 17
Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus Test:
Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice Anthony
Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard as an
undergraduate, he was the American Parliamentary Debate Association national champion. SCOTUS Sends Transgender
Restroom Case Back to 4th Circuit: Passively Virtuous or Subtly Vicious? - Dorf on Law - Wednesday, March 08, 2017. This
evidence internally references and refutes the claims of Alexander Bickel. Bickel was a law professor and his writings emphasize
judicial restraint. This article also internally references Gerald Gunther who criticized Bickel. Gunther was a prominent
constitutional law scholar and a Professor of Law at Stanford Law School - http://www.dorfonlaw.org/2017/03/scotus-sends-
transgender-restroom-case.html

I don't want to call anyone a coward, so I'll answer the second question and simply say I think it is not justified. Even assuming that there
is sometimes a place for Bickel's passive virtues, I doubt very much that this is such a place . For one thing, a backlash
would likely be ineffective. Congress could amend Title IX, but the Supreme Court could--and I think should--find for
Grimm or the next plaintiff like him based on the Equal Protection Clause as well. Such a constitutional ruling could not
be superseded by Congress.
Moreover, insofar as the justices are worried about backlash, I think they are flat-out mistaken. Ted Cruz could not even
win a Republican primary by demagoguing to the far right of Donald Trump on transgender restroom access. Yes, some
of the same people who are still freaked out about same-sex marriage are freaked out by the very existence of transgender Americans, but this is
simply not an issue that will generate much resistance to the courts.
Do I know that for sure? Of course not. But I'll end with two caveats. First, the fact that Trump moved from making trans-friendly
noises during the campaign to revoking the Obama Department of Education policy does not indicate that there would be
substantial opposition to a ruling for Grimm or the next plaintiff in his position. Trump has given over much of his domestic policy
shop to the social conservative far right. Even Trump's own highly problematic Secretary of Education--Besty DeVos--was
reportedly opposed to the policy change, which probably gives a pretty good sense of where the mainstream of the
Republican party is on this issue. And if I've over-estimated the level of existing acceptance, a ruling for Grimm would quickly
change attitudes , as people discovered that transgender access to restrooms causes nobody any harm.
Second, following Gunther, I would think the Court should reserve the Bickelian passive virtues for rare cases where there really is a clear
imperative to duck a case for fear that a substantively correct ruling would cause serious harm. I could be wrong about the impact of a ruling for
Grimm, but I'm not clearly wrong. Accordingly, if the Court sent the case back down to the Fourth Circuit to duck the issue on
Bickelian grounds, it made the wrong call.
A-to Should use the initials GG

No link and Turn. Using Grimms name and not initials is more appropriate.
Dorf 17
Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus Test:
Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice Anthony
Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard as an
undergraduate, he was the American Parliamentary Debate Association national champion. Should Federalism Play a Role in
the Interpretation of Civil Rights Laws ? From the publication: VERDICT March 8th -
https://verdict.justia.com/2017/03/08/federalism-play-role-interpretation-civil-rights-laws

Plaintiff Gavin Grimm argued that the school board's policy discriminates against him on the basis of sex because the term sex, as used in Title
IX, includes gender identity. (Because Grimm is a minor, the case caption refers to him by his initials, but he has made
numerous public appearances under his actual name, and thus using it causes him no harm; indeed, insistence on
using initials could be taken to imply that there is something shameful about being transgender.)
A-to Sets precedent for solely unisex bathrooms

A verdict for Grimm does not set a precedent for solely unisex bathrooms
Dorf 17
Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus Test:
Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice Anthony
Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard as an
undergraduate, he was the American Parliamentary Debate Association national champion. Should Federalism Play a Role in
the Interpretation of Civil Rights Laws ? From the publication: VERDICT March 8th -
https://verdict.justia.com/2017/03/08/federalism-play-role-interpretation-civil-rights-laws

On the other side, the school board has argued that the Congress that enacted Title IX intended "sex" to refer to what the board's
Supreme Court brief called "physiological distinctions between males and females," warning that a ruling for Grimm would
upend the "universally accepted practice of separating restrooms, locker rooms, showers, athletic teams, and dormitory
rooms based on" such distinctions. As readers no doubt can infer from the fact that I filed a brief in support of Grimm, I find this line
of argument unpersuasivenot least because, even in this very case, it is incoherent: Grimm has received testosterone
hormone therapy and undergone chest reconstruction surgery; in nearly all outwardly observable respects, he presents as
physiologically male. Beyond the confusion at the heart of the school board's policy, there is no reason to think that its parade of horribles
will come to pass based on a case that concerns only restrooms.
A-to Aff = ignores, conflicts with Intersex Agendas

Intersex Organization strongly support the Aff.


Knobler 17
et al. Jonah M. Knobler is an attorney with Patterson Belknap Webb & Tyler LLP. The author holds a B.A. and J.D. from
Harvard. The author is also Counsel of Record for this Amicus Brief. Please note that: The Lead amicus is an organization called
interACT: Advocates for Intersex Youth. interAct is a nonprofit organization that advocates for the rights of children born with
intersex traits. It is the first and only organization in the country exclusively dedicated to this purpose. Founded in 2006 as
Advocates for Informed Choice, its mission initially focused on ending harmful, nonconsensual medical interventions on intersex
children. Since then, interACT has expanded its mission to include ending the shame and stigma faced by intersex youth and
engaging in legal and policy advocacy on their behalf. 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 interACT: ADVOCATES FOR INTERSEX YOUTH, ET AL., AS AMICI CURIAE 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_bsac_interact_advocates_for_intersex_youth.pdf

This case raises issues central to amici's mission as advocates for intersex youth. Petitioner maintains that the word
"sex" in Title IX must refer only to an individual's so-called "physiological" sex, rather than the sex with which an
individual identifies and lives every day. This is so, Petitioner argues, because "physiological" sexpurportedly unlike gender identityis
binary, objective, and self-evident. The intersex youth for whom amici advocate are a living refutation of this argument.
Petitioner's simplistic view of "physiological" sex is demonstrably inaccurate as a matter of human biology. Moreover, it
demeans many thousands of intersex youth by erasing their bodies and lives and placing them outside the
recognition of the law. Physicians who treat individuals with intersex traits recognize that the key determinant of how individuals navigate
sex designations in their lives is their gender identi-ty their internal sense of belonging to a particular gender. Amici have a strong interest
in ensuring that the Court does not endorse Petitioner's misguided view (perspective) of "physiological" sex, and in
seeing the Court interpret Title IX in a way that respects all children.
***CASE BACKLINES START HERE
Inherency and Solvency backlines
Inherency General
Trump Policies = means Status Quo doesnt solve

New Trump guidance means trans- bathroom access will be limited.


Phillips 17
et al; Michelle E. Phillips is an attorney at Jackson Lewis P.C. She handles various types of employment litigation, with an
emphasis on sexual harassment matters. Ms. Phillips also counsels clients on a variety of labor and employment matters
concerning federal and state employment laws. She frequently conducts and advises clients on internal investigations and leads
employment discrimination and sexual harassment seminars and in-house diversity training programs for clients. From the
article: Supreme Court Sends Transgender Student Case Back to Lower Court; Other Case Worth Watching National Law
Review - Tuesday, March 14, 2017 - modified for language that may offend http://www.natlawreview.com/article/supreme-
court-sends-transgender-student-case-back-to-lower-court-other-case-worth
Following revocation of Obama Administration transgender guidance, the U.S. Supreme Court has vacated the U.S.
Court of Appeals for the Fourth Circuits determination that a transgender student had shown a likelihood of success on the
merits and the school district probably was violating Title IX by reserving boys restrooms for biological males. The
case was sent back to Fourth Circuit for reconsideration. Gloucester County School Board v. G.G., No. 16-273 (U.S. Mar. 6, 2017).
A February 22, 2017, Dear Colleague Letter from the Trump Administration revoked an Obama Administration Dear
Colleague Letter interpreting Title IXs sex-based protections as covering transgender students. (For more, see our article,
Trump Administration Rescinds Guidance on Transgender Rights under Title IX.) The Fourth Circuit relied heavily on the Obama
Administrations Dear Colleague Letter in reaching its determination.
In letter briefs filed March 2, both parties urged the Supreme Court to move forward with the scheduled argument because one of the certified
questions did not rely on the Obama Administrations Dear Colleague Letter and was still contested. The Justices chose instead to send the case
back to the Fourth Circuit for consideration of the effect of the Trump Administrations Dear Colleague Letter.
Although G.G. prevailed at the Fourth Circuit (822 F.3d 709 (4th Cir. 2016)), on August 3, the
Supreme Court voted 5-to-3 to temporarily stay the
order while it decided whether to accept an appeal from the defendant school board. The Supreme Courts decision to vacate the Fourth Circuits
holding means the school district is not required to provide G.G. (Grimm) with access to a restroom that matches his
gender identity.
If the Supreme Court eventually decides the case, it likely will have a full bench of nine justices. Republicans are hoping to confirm President
Donald Trumps Supreme Court nominee, Judge Neil Gorsuch, in early April to allow him to participate in the Courts final cases of the term.
SCOTUS wont hear a trans- bathroom case.

SCOTUS will no longer hear a trans- bathroom case.


Williams 17
Pete Williams is an American journalist and a television correspondent for NBC News. Williams became a correspondent for
NBC News in 1993 after leaving the Defense Department; his main areas of news coverage for NBC include the Department of
Justice and Supreme Court. Supreme Court Rejects Gavin Grimms Transgender Bathroom Rights Case NBC News - March
6 2017 - http://www.nbcnews.com/news/us-news/u-s-supreme-court-rejects-transgender-rights-case-n729556

In a blow to advocates of transgender rights, the U.S. Supreme Court Monday said it would not hear the case of a
transgender high school student fighting to use the bathroom of his choice.
The court also wiped off the books a lower court ruling in favor of the student , Gavin Grimm, who said federal law
allowed him to use school restrooms matching his gender identity.
"This is a detour, not the end of the road," said the ACLU's Joshua Block, who represented Grimm.
The Supreme Court had earlier agreed to hear the case on March 28. But last month, the Trump administration announced a
change in policy on the transgender issue. The lower court had relied, in part, on an earlier version of that policy.
In light of the change, the Supreme Court asked lawyers involved in the case whether it should proceed, and both sides urged the court to hear the
case.
But Monday's order, with no noted dissent, took the case off the court's calendar.
Solvency General
Equal Protection + Title IX are key

Title IX and Equal Protection grounds are the best means to counter discrimination against those identifying
as trans~
Buzzelli 16
Vittoria L. Buzzelli - J.D. Candidate, The Dickinson School of Law of the Pennsylvania State University - The Penn State Law
Review 121 Penn St. L. Rev. 187 Summer, 2016 allrev; lexis
Claims involving transgender rights are an emerging area of case law and are beginning to gain significant attention in the U.S.
The topic is of particular importance in schools and universities where transgender students are repeatedly subject to
discrimination with few remedies. Students determined to be treated in accordance with their gender identity often
request to use the restrooms and locker rooms of the gender with which they identify. If the students do so without
permission, the students face punishment, expulsion from school, and even criminal charges. Although there is little case law on
transgender student rights, most cases to have addressed the issue are flawed.
This Comment analyzes the two most effective avenues of recovery for transgender students who suffer
discrimination: Title IX and the Equal Protection Clause , and explains how these laws can afford protection to
transgender students. Additionally, this Comment explains how transgender discrimination is the same as sex discrimination and why the
terms "sex" and "gender" should be treated interchangeably. This Comment also advocates for recognition of transgender persons as part of the
quasi-suspect "gender" class, or for LGBT persons to be recognized as a quasi-suspect class on their own. Furthermore, with the ultimate goal of
recognizing transgender student rights and eliminating transgender discrimination, this Comment recommends that schools replace shared, sex-
segregated facilities with single-user, unisex facilities.
Title IX grounds are key
**also answers distinguish CPlan

Must rule on Title XI grounds key to setting precedents beyond K thru 12.
Glater 17
Jonathan Glater - Professor of Law, Univ of California-Irvine. The author holds a J.D. from Yale University School of Law and
an M.A. from Yale University, International Relations (focus on Latin America and development) - Still Waiting for a
Transgender Superman Available at: Education Law Prof Blog - Monday, February 27, 2017
http://lawprofessors.typepad.com/education_law/2017/02/still-waiting-for-a-transgender-superman-by-jonathan-glater.html

Last years guidance which is accessible on the Web site of the Education Department addressed the meaning of the nondiscrimination
language contained in Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq. The law states:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected
to discrimination under any education program or activity receiving Federal financial assistance.
This kind of nondiscrimination language in other contexts, most notably employment, has been interpreted by
courts as prohibiting differential treatment based on gender identity. (The law includes several exceptions for specific
institutions and organizations, like the Boy Scouts.)
If the prohibition has this same meaning in education , then it bars schools, colleges and universities receiving federal
money from treating transgender students and other students of the same gender identity differently. For example, to require a
transgender student to use a locker room, rest room, or other school facility designated for use by students of a different
gender identity would run afoul of Title IX.
Now, I mentioned that courts have found gender identity-based discrimination to constitute sex discrimination in other contexts, and that is
because the cases cited by the two departments in the guidance did not involve Title IX with one exception . As discussed in
more detail earlier in another post, the Supreme Court will hear oral argument next month in Gloucester County School Board v. G.G.
(Grimm), and that case is the exception.
Trans- Discrimination Advantage
Backlines
A-to Specific Neg Arguments
A-to Social trends emerging now bottom-up change key

Bottom-up social movements wont solve now. A push that also includes top-down legal change is key.
Allen 17
Samantha Allen is a senior reporter for The Daily Beast. She holds a Ph.D. in Womens, Gender, and Sexuality Studies from
Emory University. Whatever Happened to the Transgender Tipping Point? Daily Beast March 31st -
http://www.thedailybeast.com/whatever-happened-to-the-transgender-tipping-point

After the optimism of 2014 the 'Transgender Tipping Point' as decreed by Time magazinetrans people are facing an
onslaught of legislative prejudice.
In 2014, Time magazine announced The Transgender Tipping Point.
Laverne Cox adorned the cover in a blue dress.
The author of the cover story, Katy Steinmetz, declared that another civil rights movement is poised to challenge long-held
cultural norms and beliefs, chalking up the emergence of new policies to the new transparency that transgender
people were exhibiting after emerging from the margins to fight for an equal place in society.
The narrative was clear: Transgender visibility was good. It could change the country. And although Steinmetz herself was careful to
qualify that the transgender revolution still has a long way to go, Times headline made it seem like a critical threshold had been
crossed. Progress is linear, it supposed, and there is no going back.
That narrative I am sad to say on March 31, the Transgender Day of Visibility (TDOV) is wrong.
In 2017, the White House rolled back federal guidance protecting transgender students, effectively scuttling a
potentially precedent-setting Supreme Court case in the process.
There have already been at least seven reported murders of transgender people in the United States, placing it on track to be one of the most
violent years on record.
And even after North Carolina reached a controversial legislative compromise yesterday over its bathroom bill under pressure from the
NCAA, some Texas legislators are trying to pass a bill similar to HB2 this year.
If 2014 ever could have been described as a Transgender Tipping Point, we might say that were now in the
Trans gender Dipping Point a moment when, despite increases in media representation, the sort of tangible progress that felt within our
grasp a few years ago may now have been delayed well into the next decade or beyond.
Wherever you look, transgender people may be more visible but they are still facing the same problems in 2017 as they were in 2014.
They are still being denied life-saving health care, discriminated against at work, and harassed in public. Transgender
athletes are still being stigmatized for daring to participate in sports. Cisgender actors are still being cast in transgender parts.
All the while, anti-LGBT groups have been doubling down on transphobia, fundraising around bathroom laws now that the same-sex marriage
decision seems all but irreversible.
Even liberals have yet to fully embrace transgender rights, with a sizeable 30 percent of Democrats in a Public Religion Research Institute survey
saying that they favor anti-transgender bathroom legislation.
Imagine a magazine cover today announcing The Transgender Tipping Point. The thought is almost laughable.
Whatever burst of momentum there supposedly was in 2014 has given way to a seemingly endless war of attrition between civil
rights groups and anti-LGBT groups, with lives hanging delicately in the balance.
Yes, transgender people are on TV now. But its clearer now than it has ever been that visibility is no silver bullet for transphobia.
Emerging from the margins, as transgender people were reportedly doing in 2014 according to that Time cover story, can be
tantamount to placing a target on your own back.
And the new transparency of 2014 has actually opened up transgender peoples lives to an unprecedented new level of
legislative scrutiny .
Thisas weve learned the hard waycan lead to discriminatory anti-LGBT bills that are cruel in their attention to detail:
requiring original birth certificates because anti-LGBT groups know that transgender people can often update theirs; defining gender by
chromosomes because they know that transgender people can change sex characteristics with hormones and surgery; even effectively placing a
bounty on transgender people who use the appropriate restrooms because they know that the bills would be all but unenforceable without
financial incentives for citizens to sniff transgender people out.
TDOV is a day when we rightfully celebrate those transgender people with the right combination of privilege and courage to live openly.
Given that the only other day for transgender peopleTransgender Day of Remembrance on November 20focuses on the horrific violence
the community endures, it is an important Spring counterweight to that more solemn day in the Fall.
But in 2017, its worth probing the possible relationship between March and November, between visibility and violence. Visibility is important.
But visibility without empathy is just spectacle. And transgender people cant only be seen; they have to be understood.
Transgender people and their allies have been predicting the potential downsides of visibility for years.
At the end of 2014, I wrote that visibility is no substitute for change and the following December, I noted that 2015s anti-trans backlash was
an inevitable consequence of [the] progress we had seen over the prior year.
In 2016, in an essay for the Pacific Standard entitled After the Transgender Tipping Point, Melissa Gira Grant warned that the flip side of
visibilityespecially when it appears to be sudden, and media-driven is vulnerability.
That simultaneity with which that same sentiment occurred to a wide range of LGBT writers and advocates should be alarming. The pessimism of
2016 was widespread: Salon explored the dark side of visibility, and Medium was awash in essays observing that being visible was not all it
was cracked up to be, but rather a double-edged sword, as Jessica Oros wrote, that can inflict deep wounds.
Tiq Milan observed in a Guardian article that visibility was accompanied by an uncloaking of an ongoing strain of anti-trans prejudice and
hatred, and Eliora Avraham announced the anti-trans backlash had arrived in an article for the Australian journal Overland.
Many saw this backlash coming. As far back as 2014, for example, Jos Truitt noted in a Feministing essay that visibility is not necessarily a
good thing, particularly for trans women, adding that visibility wont feed or clothe or house you.
At best, it seems, an unqualified call for more visibility (attention) can be a red herring that distracts from more substantial issues; at worst, its an
invitation for punishment.
Looking back now, 2014 may have only ever perceived as a Transgender Tipping Point because we had been conditioned to believe that LGBT
visibility in the media signals some sort of civil rights momentum. After all, wasnt it Ellen that paved the way for the acceptance of gay people?
Perhaps the most famous endorser of that idea was former Vice President Joe Bidenhimself an early and vocal supporter of transgender
rightswho said in 2015 that Will & Grace probably did more to educate the American public than almost anything anybodys ever done so
far.
Attributing progress on gay rights to the entertainment industry is an interesting ideaand theres a poll here or there to suggest that it played a
rolebut theres no way to tease out how much it truly mattered in the grand scheme of things.
Its hard enough for statisticians to peer into hearts and mindsand even the good polling on this topic suggests that getting to know LGBT
people in real life was far more influential in influencing social attitudes than film and television characters were.
Still, the narrative that Hollywood won the day has a certain intuitive pull in media circles, as we can trace in myriad think pieces from 2015.
Its impossible to know how much entertainment ever drives society rather than merely reflecting it, wrote Spencer Kornhaber in one such
essay for The Atlantic. But its hard to avoid the feeling that the past five or six years have seen a virtuous cultural cycle [between Modern
Family and gay rights].
Theres no doubt that representation is important. But we need more than a feeling to gauge the progress of civil rights movements. Correlation
is not causation, the chicken-egg dilemma is still unsolvable, and the LGBT rights movement doesnt follow the same path for every letter.
Its easy to get excited when a new group of people starts showing up on screens both small and silver but it doesnt necessarily prove that the
deeper mechanisms of change are functioning as they should.
Are TV characters like Orange is the New Blacks Sophia Burset or Transparents Shea playing a part in the transgender revolution? Yes. Does
the same go for transgender models and transgender memoirs and transgender documentaries? Of course.
But for the past few years, there has been a jarring contrast between the wide range of institutions that are moving toward
transgender acceptance, albeit at varying speedsHollywood, corporate America, virtually every major medical
association, the Democratic partyand the stubbornly divided field of public opinion.
Most Americans oppose transgender bathroom laws according to the Public Religion Research Institute but 53 percent is apparently not a strong
enough majority to pass nationwide protections. And the size of the opposition to transgender rights is alarming given the asymmetrical nature of
the evidence.
As it stands, roughly half of Americans stand with the side of medical science, history, civil and human rights groups, sexual assault and domestic
violence organizations, and small businesses.
But a substantial 39 percent stand on the side of the completely unsubstantiated myth that transgender protections open the door for sexual
predators. The debatean imperfect descriptor for an argument this lopsidedshould be over. But its not.
As the Trump administration has demonstrated, many of the protections that transgender people currently enjoy can be
wiped out with a signature or two: the transgender student guidance is gone, Hillary Clintons 2010 passport policy is theoretically
at the whim of the State Department, and the long-rumored religious freedom executive order could still wipe away LGBT protections.
We are already seeing the ripple effects of the Trump administration backing down from important transgender
court battles, like Wisconsin rolling back health care for transgender state employees and the University of Arkansas
system doing the same without fearing reprisal from the federal government.
Most significantly , Gavin Grimms Supreme Court case was sent back down to the Fourth Circuit because Attorney General
Jeff Sessions and Secretary of Education Betsy DeVos rescinded the Obama administrations guidance letter on transgender
students.
If vulnerability is indeed the flip side of visibility, as Melissa Gira Grant wrote, then transgender people must be pretty visible right about now.
Transgender people have never been more visible and they have never had this much to lose. Theyre losing it already.
Why hasnt transgender visibility been more of a shield against these attacks? Why, for instance, isnt there more outrage over the transgender
student guidance being suddenly rescinded?
To answer those questions, we would have to abandon the idea that theres some overarching blueprint for all civil rights
movements that follows a predictable path from the streets onto our television sets and into the law books . We would have to stop
using visibility as an indicator of progress.
The struggle for transgender rights, like any human rights struggle, is unique . And it is particularly challenging.
A-to Grimm not key - Status Quo will eventually solve Equal
Protection, etc

These trends dont solve any the 1AC we dont know when theyll arrive or if the grounds for the rulings
will solve all of the diverse 1AC impacts.

Delay is unacceptable thats the entire point of our discrimination advantage.


Fitzgerald 17
Megan Fitzgerald is a 2L at Harvard Law School and graduated from Louisiana State University with degrees in Psychology and
Political Science. States' Rights, Civil Rights, and the Rights of Transgender Americans - Harvard Civil Rights-Civil Liberties
Law Review - March 16, 2017 http://harvardcrcl.org/states-rights-civil-rights-and-the-rights-of-transgender-americans/

The latest iteration of the controversy has circled around high school student Gavin Grimms legal battle against his school
concerning his right to use the bathroom of his choice. Last week, less than a month before it was set to be argued, the Supreme
Court rejected the case and sent it back to the Fourth Circuit: the lower court, in its decision, had relied in part on an Obama-era
interpretation of Title IX that is not supported by the current administration.
The Trump administration outlined its position in late February of 2017 in a letter revoking Obama Administration guidance regarding
transgender rights in public schools, citing a desire to further and more completely consider the legal issues involved. The letter avoided
speaking out directly against the rights of transgender students by deferring to due regard for the primary role of the States and local school
districts in establishing educational policy.
Education Secretary Betsy DeVos, who has spoken about prioritizing protection for all students, including LGBTQ students, also considers the
issue one best solved at personal and local level. This posturing allows an appeal to both sides of the debate: the administration can appeal to
those opposed to transgender rights by reversing federal protections and appease those who support transgender rights by claiming its position is
based on deferral to the states rather than a deliberate denial of civil rights.
In principle, states rights were designed to protect individual liberty from federal encroachment, but in practice, the federal government has
typically been a much stronger protector of civil rights and liberties than the states. The use of states rights to soften the appearance of civil
rights violations is nothing new; one of its more popular iterations claims that states rights not slavery motivated Southern states in the Civil
War. Similarly, after the passage of the 1964 Civil Rights Act, politicians like Barry Goldwater claimed the Souths shift from Democratic to
Republican was not because Southerners opposed civil rights, but because Southerners prioritized states rights.
The same types of arguments have been utilized by the current administration. Invoking states rights allows Betsy DeVos to sympathetically
meet with the families of transgender students and allows Trump to claim he is respectful and supportive of LGBTQ rights, even while their
actions actively make the lives of LGBT students more difficult and dangerous.
By sending Gavin Grimms case back to the Fourth Circuit, the Supreme Court prolonged the struggles of the estimated 150,000
transgender students currently in American schools. The Court also delayed ruling on the level of federal protection afforded to
transgender Americans. This inaction takes an already vulnerable group of citizens and leaves them in a state of limbo ,
unsure of whether their rights are valid and protected.

No guarantee the status quo will ever solve unpredictability of the Grimm case proves.
Green 17
Melissa Green is a practicing Attorney. Melissa holds a J.D. from Drexel Law School and a B.A. from Southern Maine -
Internally quoting ACLUs Joshua Block, who is representing Grimm in the Gloucester County case Whats Next for the
Transgender Bathroom Case Before the Supreme Court March 28th - http://melissagreenlaw.com/2017/03/28/whats-next-for-
the-transgender-bathroom-case-before-the-supreme-court/
Grimm appealed to the Fourth Circuit Court of Appeals, which sided with the teen.
However, the Supreme Court has put a hold on the circuit court decision while it takes up the case.
Meanwhile, in May 2016, the Obama administration issued federal guidance calling on all on public school districts
nationwide to allow transgender students to use the bathroom that matches their gender identity.
Citing Title IX, the letter from the Departments of Justice and Education said schools should not require a medical diagnosis, nor should they
demand documentation reflecting the students gender identity before taking steps to protect transgender students even in circumstances in
which other students, parents, or community members raise objections.
That guidance was rescinded last week by the Trump administration, which said that the Obama administrations guidance did
not explain how it was consistent with the law.
In a letter sent to schools last Wednesday, the Trump-era Departments of Justice and Education said that the Obama directive caused confusion
and lawsuits over its enforcement.
Grimms attorney said that the case has given the teen a sense of purpose.
Whether thats winning in court or through changing hearts and minds I think its given him a sense that he isnt going through all of this for
nothing, said Block.
Whats next
The Supreme Court has requested that lawyers on both sides submit their views on how the case should proceed in light of the new guidance
provided by the Departments of Justice and Education last week. Their letters are due at 2 p.m. Wednesday.
Grimms attorney said that while hes hopeful the court will side with them, he did not have any predictions on which
way the court would rule.
I dont have gut feelings on the case anymore. I think each step of the way this case has defied expectations , said
anyone who thinks they can predict with confidence what the Supreme Courts going to do hasnt
Block. [I] think that
been paying close enough attention .

No guarantee Supreme Court will rule in favor of trans- right. Gorsuch and Breyer lower the odds.
Millhiser 17
Ian Millhiser - Justice Editor, ThinkProgress and author of Injustices: SCOTUS History of Comforting the Comfortable and
Afflicting the Afflicted from the article: 9 terrible things Neil Gorsuch could do in his first full term on the Supreme Court
ThinkProgess April 7th Modified for language that may offend - https://thinkprogress.org/nine-terrible-things-neil-gorsuch-
could-do-in-his-first-full-term-on-the-supreme-court-3f4edd86209c

Gorsuchs record places him to the right of Justice Antonin Scalia , the conservative icon Gorsuch hopes to replace, and he may
prove to be the Courts most conservative member. One strong indication that will be the case: In the middle of his testimony, every
single member of the Court that Gorsuch is poised to join ruled that a decision their new colleague wrote a decision that significantly weakened
a law protecting children with disabilitieswas wrongly decided.
And Gorsuch is likely to have a very significant impact on the law very quickly . Because the Court was down a justice for
more than a year, the remaining justices largely avoided contentious issues that were likely to produce 44 splits. Thats created a backlog of
cases involving issuesranging from voting rights, to LGBT equality, to birth control, to the rights of workersthat are now likely to be taken
up in a hurry.
The right to vote
Before Scalias death, the Roberts Court was not friendly toward voting rights. The Court permitted voter ID laws, a common method of voter
suppression. It struck down a major prong of the Voting Rights Act. And its placed increasingly high procedural hurdles in front of litigants
seeking to protect their right to vote.
In one particularly notable case, a federal appeals court struck down North Carolinas omnibus voter suppression law. As the appeals court
explained, North Carolina lawmakers requested data on the use, by race, of a number of voting practices, then used this data to design a voter
suppression law that disproportionately targeted African Americans and that minimized its impact on white voters.
And yet, when this case reached the Supreme Court, all four of the Courts conservatives voted to reinstate the North Carolina law. If Scalia were
still alive, the law would have been in effect during the 2016 election.
Assuming that none of these four conservatives have second thoughts, Gorsuch will almost certainly provide a fifth vote they need to uphold laws
similar to North Carolinaseven, apparently, when the law was enacted for the very purpose of preventing black people from voting.
Gerrymandering
Even if Democrats sweep back into the White House in 2020, Republicans have a significant advantage in U.S. House races thanks to
congressional districts that overwhelmingly favor the GOP.
Last November, however, a federal court struck down Wisconsins state assembly maps as an unconstitutional partisan gerrymander. The
plaintiffs in that case, moreover, have devised a mathematical formula that will allow courts to sort out gerrymandered mapspotentially
requiring states across the country to draw fairer congressional maps.
The Supreme Court is likely to hear this case, Whitford v. Gill, as soon as its next term. Before the election, when most Democrats believed that
either President Obama or the woman who received nearly 3 million more votes than Trump would get to fill the vacant seat on the Supreme
Court, the plaintiffs in Whitford looked very likely to prevail. With Gorsuch on the Court, victory for these plaintiffs appears much more
doubtful.
It is not, however, impossible. Though conservative Justice Anthony Kennedy has been skeptical of gerrymandering suits in the past, he did write
in a 2004 opinion that a gerrymandering case should be allowed to proceed if workable standards emerge for measuring the burden a
gerrymander imposes on representational rights. Whitford, with its mathematical formula, offers such a standardand thus a shot at winning a
fifth vote.
Working while gay
Earlier this week, a federal appeals court held in a lopsided 83 vote, that the federal ban on sex discrimination prohibits discrimination on the
basis of sexual orientation.
Among other things, the appeals court explained in Hively v. Ivy Tech Community College, discrimination against gay or bisexual employees is a
form of illegal gender stereotyping. A lesbian woman represents the ultimate case of failure to conform to the female stereotype, because they
enter into sexual relationships with women instead of men.
Other appeals courts disagree with this outcome, which means that it is almost certain to be heard by the Supreme Court. One of the Courts
primary roles is to resolve circuit splits where one federal appeals court reaches a different outcome than another.
As is often the case in gay rights cases, Hively is likely to turn on Justice Anthony Kennedys vote. Though a conservative, Kennedy authored a
series of cases recognizing that the Constitution protects against may forms of sexual orientation discrimination, including the Courts landmark
marriage equality decision.
Gorsuch, meanwhile, has a record of reading civil rights legislation narrowlyincluding in the case where he read a law protecting disabled
children so narrowly that every single member of the Supreme Court disagreed with him.
Unions
Last year, the Supreme Court heard Friedrichs v. California Teachers Association, a case seeking to defund many public sector unions. By law,
these unions are required to bargain on behalf of union members and non-members alike, so if a worker within a bargaining unit decides not to
join the union, they still get all the same wages and benefits they would if they did pay union dues. To prevent free-riders, who would enjoy
nearly all of the benefits of being in a union without having to contribute to the unions costs, unions often charge agency or fair share fees to
non-members to recoup each non-members share of the costs of bargaining.
Friedrichs asked the Supreme Court to make these fair share fees illegal, at least when they are charged by public sector unions. The result would
be that many individual workers would have an incentive to stop paying into their union, until the union was so starved for funds that it was no
longer able to bargain effectively or conduct other union business.
Without Scalia, the Court split 44 in Friedrichs. But Gorsuch is likely to be the fifth vote against unions.
Birth control
On the final day of the Supreme Courts last term, Justice Samuel Alito was angry.
A Washington state regulation requires pharmacies to deliver lawfully prescribed drugs or devices to patients. The owners of one pharmacy
refused to comply with this regulation, because they object to certain forms of contraception on religious grounds and did not want to dispense it.
If this case arose under federal law, the pharmacy would have a much stronger case. Those cases are controlled by the Religious Freedom
Restoration Act (RFRA), which, at least after Hobby Lobby, offers religious objectors protections above and beyond the protections afforded by
the Constitution.
State laws that burden religion, however, are valid so long as they do not single out people of faith for inferior treatment. As Justice Scalia wrote
in Employment Division v. Smith, the Constitution does not relieve an individual of the obligation to comply with a valid and neutral law of
general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).
Alito wanted his Court to hear Stormans v. Wiesman, the case brought by the pharmacy owners. He claimed that the Washington state regulation
specifically targeted religious objections, noting a state guidance document which explains that the regulation does not allow a pharmacy to
refer a patient to another pharmacy to avoid filling the prescription due to moral or ethical objections.
Of course a moral or ethical objection is a different thing than a religious objection. So, if the states guidance can be used to tar Washington
with accusations of religious discrimination, it is likely that many other states will become vulnerable to such accusations. The practical impact of
a Supreme Court decision in favor of the plaintiffs in Stormans could be to impose the Hobby Lobby regime on all state laws, and not just federal
law.
It takes four votes for the Supreme Court to hear a case. With Scalia dead, Alito mustered only two of his colleagues in support of his bid to take
up Stormans. Gorsuch is likely to be the fourth vote to take up a similar case.
Freedom from discrimination
A closely related question to the issue in Stormans is whether religion can be wielded as a sword to cut down anti-
discrimination laws.
Not too long ago, the idea that religious objections could justify discrimination was considered ludicrous. In 1968, a
racist business owner claimed that the ban on whites-only lunch counters contravenes the will of God, and that he should be allowed to ignore
it. A unanimous Supreme Court rejected this claim, labeling it patently frivolous.
Times have changed, however, and the last few years have seen a rush of pizza-joint owners, cake bakers, photographers, and
other anti-LGBT business owners who claim that their religion gives them a right to ignore anti-discrimination laws.
The Hobby Lobby decision will no doubt embolden these religious objectors (as would a potential decision applying Hobby Lobby to state laws).
Though Hobby Lobby indicates that religious objections cannot be used to evade prohibitions on racial discrimination, it conspicuously does
not rule out the use of religious objections to enable discrimination against women, LGBT people or other groups.
Trans rights
Earlier this year,
the Supreme Court intended to hear Gloucester County School Board v. G.G. (Grimm), which concerns the
right of trans students to use a bathroom that corresponds with their gender identity. The justices wound up kicking the case
back down to the lower courts, however, after the Trump administration rescinded an Obama-era policy guidance that was at the heart of the case.
Although, a federal appeals court sided with Gavin Grimm, the trans student challenging a Virginia school boards policy preventing him from
using the mens room at school, the lower court opinion relied primarily on the Obama administrations pro-trans interpretation of a federal
education regulation. Now that the Trump administration walked away from this interpretation, it was appropriate for the Supreme Court to send
the case back down so that the lower court consider the remaining issues in the case.
The issue of anti-trans discrimination is not going away, however, and it is likely that either this case or a related case will make it
up to the justices again soon.
Although Grimm won in the appeals court, he did not benefit from this ruling because the Supreme Court stayed itin a
decision joined by all four conservatives plus Justice Stephen Breyer (although Breyer wrote that he joined the conservatives solely
as a courtesy). That suggests Kennedy and possibly even Breyer are uncertain votes in favor of trans rights.
Gorsuch is very unlikely to side with trans students in a similar position to Grimm, which means that those students
will almost certainly need to win Kennedy and Breyer in order to prevail .

Not certain that the squo will solve. And, Gorsuch will be the swing vote
Denniston 17
Lyle Denniston is an American legal journalist, professor, and author. Denniston has been covering the Supreme Court for fifty-
eight years. Denniston has taught classes on law, journalism, and American constitutional history at American University,
Georgetown University, Penn State University, and Johns Hopkins University. Because of his long-standing coverage of the
Court, he has been referred to as the "Dean Emeritus of the Supreme Court Press Corps,Denniston wrote for SCOTUSblog, after
previously having written for the Wall Street Journal, Boston Globe, The Baltimore Sun, The American Lawyer, and the
Washington Star A new delay in high-profile case on transgender rights - April 7th available at:
http://lyldenlawnews.com/2017/04/07/new-delay-high-profile-case-transgender-rights/

Gavins lawyers, on the day after the Supreme Court sent the case back to the appeals court , asked that court to schedule the filing
of briefs so that a hearing could occur between May 9 and 11, allowing about a month to rule before the graduation date.
The Gloucester County School Board, which had a policy that denied Gavin access to the boys bathroom at schoo because he was born a girl,
opposed that proposal, saying it was too short to allow the full exploration of the meaning of the law at issue Title IX and too short to allow
the Trump Administration to settle on its interpretation of that law. The school board wanted a schedule that would lead to a hearing in mid-
September.
The two sides were told on Friday to file, presumably jointly, a briefing schedule. That is due by April 17. That seems to guarantee that the case
would not be ruled upon while Gavin is still in high school. The future of the case is somewhat uncertain because the youth, in addition
to his Title IX claim, made a constitutional claim that the school had discriminated against him. So far, no court has ruled on that claim.
It is possible that, after the Fourth Circuit Court issues a new ruling, the case could return to the Supreme Court. There were
clear indications, when the Justices blocked the order in Gavins favor last August, that the eight members might split
4-to-4 had they made a full-scale ruling on the case. That raises the prospect that the new ninth Justice, Neil M. Gorsuch,
might hold the deciding vote on the issue at stake.
A-to Travel Boycotts solve in the Status Quo

Boycotts arent sufficient to solve. Boycotts have been around for some time, but the law hasnt changed.
Legal change is a better starting point for erasing stigmas and shifting social norms all of the 1AC ev proves
this.

Economic leverage alone in insufficient otherwise many discriminatory State Laws would already be gone.
Federal Action key.
Lang 17
Nico Lang is a journalist and contributor for the L.A. Times, Huffington Post and Salon.com. Internally quoting Deena Fidas,
Director of the Workplace Equality Program at The Human Rights Campaign. Anti-LGBT bigotry isnt just bad for business.
Its also bad for your career Salon - March 20th - http://www.salon.com/2017/03/20/anti-lgbt-bigotry-is-not-just-bad-for-
business-it-is-also-bad-for-your-career/

What changed? In addition to a public thats increasingly favorable toward LGBT rights, corporations realized that
being inclusive helps the bottom line.
What businesses have found well ahead of lawmakers and the courts is that being an LGBT-inclusive employer is
crucial when it comes to attracting and retaining talent and when it comes to appealing to the ever-growing lucrative LGBT consumer
market, said Deena Fidas, Director of the Workplace Equality Program at HRC. Its just part of doing business.
Galileo Capital Management Ltd, an investment group based in the U.K., estimated last that the global buying power of the LGBT community
totaled $1.7 trillion up from $884 billion two years prior. And a 2016 report from The Center for Talent Innovation, an international corporate
research team, found that queer and transgender people tend to support companies that support them. Seventy-one percent of LGBT respondents
reported that they were more likely to purchase a good or service from companies with a positive record on equality. Eighty-two percent of those
who identified as LGBT allies said the same.
The opposite is also true: LGBT people are less likely to give their business to companies viewed as opposed to their rights.
In 2013, advocacy groups like HRC and GLAAD called for a boycott of Barilla after its CEO, Guido Barilla, claimed that the popular pasta brand
would not be featuring same-sex families in its advertisements, as the company supports a classic family where the woman has a fundamental
role. The backlash was effective enough that Fidas said executives totally [transformed] the company with regards to their policies, their
benefits, and their internal practices on LGBT inclusion. By 2014, Barilla became one of those perfect-scoring companies atop the Corporate
Equality Index.
Even Chik-fil-A, the chicken chain whose CEO remains opposed to equality, drastically decreased the amount its foundation gives to anti-gay
lobbying groups following outcry from LGBT customers in 2012. The Marriage & Family Foundation and the National Christian Foundation
received $3.6 million in 2011, but not a single red cent the following year.
These boycotts have raised concerns of free speech among conservatives who feel that their right to express their political views without
reprisal is being violated. But in truth, checks on anti-LGBT rhetoric come just as much from inside the company as they do from outside boycott
efforts. When Brendan Eich, the Mozilla CEO who donated $1,000 to Proposition 8, stepped down in 2013, it was not the outrage machine that
did him in; it was his own employees. Many executives and board members threatened to resign if Eich, who also gave money to Pat Buchanans
failed presidential campaign, remained at the helm.
Having employees especially at the leadership level who are vocally opposed to LGBT rights is increasingly seen as a liability to
corporations that want to do business in the 21st century. Thats why companies like Walmart, Papa Johns, and Ford Motor Company have fired
anti-gay employees following virulently homophobic outbursts. Susan Olsen, better known as Cindy from The Brady Bunch, was sacked from
her radio show after harassing an openly gay actor she previously interviewed on the program, calling him a f****t.
But if the pressure to stop employing anti-gay workers is coming from the inside, the reason is that a companys hiring sets a tone for the
workplace it wants to build, according to Rachel Rubin of Out & Equal Workplace Advocates.
If youre an LGBT emerging executive and you look up at your company and see a vocally homophobic CEO and no LGBT senior leadership,
its hard to imagine yourself moving up at that company, said Rubin, who serves as the Deputy Director for the national LGBT organization. It
becomes difficult to retain top talent, and one of the most expensive costs to companies is recruitment and retention. If youre losing that, its
hard to remain competitive as a business at all.
If youre applying for a job and you see Pat McCrorys name on the leadership board, it isnt just a sign that you may not advance at the
company. You might be concerned about getting fired for being out in the workplace, if you get hired at all.
Although more companies than ever before have embraced non-discrimination policies protecting the rights of the
LGBT workers, you can still be fired in 28 states for your gender identity or sexual orientation . The Harvard Business
Review estimated one in 10 LGBT employees have left a job because the environment was unwelcoming. Because there are currently no
federal laws to prevent employees from being terminated just because of who they are , the kinds of people a company hires
communicates a great deal about its values.

Even though boycotts create some leverage, many States still are forging with anti-trans- bathroom policies
Graham 17
David A. Graham is a staff writer at The Atlantic, where he covers U.S. politics and global news. Graham previously edited The
Atlantic's politics section and has reported for Newsweek, The Wall Street Journal, and The National. The Atlantic - Jan 9, 2017 -
https://www.theatlantic.com/politics/archive/2017/01/states-see-a-new-wave-of-transgender-bathroom-bills/512453/

Lawmakers in Texas, Kentucky, and Virginia are the latest to propose legislation that replicates North Carolinas
controversial lawdespite the risk of backlash.
In North Carolina, the lessons of H.B. 2, last years controversial transgender bathroom bill, seem clear. The law states, among other
things, that transgender people must use bathrooms corresponding to the biological sex on their birth certificates when
using public accommodations.
The law inspired huge boycotts, cost the state an estimated hundreds of millions of dollars in lost economic growth, drew a
lawsuit from the Department of Justice, and was a central cause of Republican ex-Governor Pat McCrorys defeat in his
reelection bid. In late December, an attempt to repeal the law failed amid partisan acrimonybut over how to repeal the bill, not whether to
repeal it.
But in several states, legislators have taken a different lesson: Theyve seen what happened in North Carolina and
decided that their states need something like it. Lawmakers in Texas, Virginia, and Kentucky have all filed similar bills,
reflecting an alternative political calculus on transgender rights. While the language is slightly different across the bills, they share
several essential characteristics: They define biological sex based on an individuals birth certificate , and then say that
people must use public accommodationsespecially in public schoolscorresponding to that sex.
A-to Targets Profits = crashed because of Trans- Bathroom
Policy

Target did not crash due to trans- bathroom policy its all about Amazon Prime.
Palma 17
Bethania Palma Markus is a journalist who started her career as a daily newspaper reporter and has covered everything from
crime to government to national politics. She earned a B.A. in political science from the University of California at Irvine and an
M.A. in history from California State University at Northridge. Did Target's Stock 'Crash' Due to Its Transgender Bathroom
Policy? Snopes March 1st - http://www.snopes.com/targets-stock-transgender-bathroom-policy/
CLAIM:
Target's stock crashed because of its transgender bathroom policy.
RATING:
FALSE.
ORIGIN:
On 28 February 2017, Breitbart.com reported that big box retailer Targets stock had crashed, losing a combined total of
$15 billion in investor wealth, because of the chains announcement in 2016 that it would allow transgender customers
and employees to use bathrooms corresponding to their gender identity :
Targets stock value is now down by 30 percent since it sparked a consumer boycott by embracing the transgender political agenda. That 30
percent drop has slashed investors wealth by roughly $15 billion.
On Tuesday, the stock fell to $58.78, down from its April 19 high of $83.98. In contrast, WalMart is up 3 percent since April, and Kohls is down
less than one percent.
Company officials indirectly acknowledged the consumer boycott. Our fourth-quarter results reflect the impact of rapidly changing consumer
behavior, which drove very strong digital growth but unexpected softness in our stores, Target CEO Brian Cornell said in a company statement.
The company also admitted that it would likely continue to experience losses through the year.
On 19 April 2016, Target announced that transgender customers and employees were free to use the restroom that corresponded to their gender
identity amid a national row on the subject during the 2016 election cycle. The announcement came after North Carolina enacted the
controversial HB 2 in March 2016, a law that came to be colloquially termed the bathroom bill, and required public single-sex restrooms only
be used by people of the corresponding biological sex. The controversy, and Targets definitive stance, prompted conservative groups like the
American Family Association (AFA) to launch a boycott. Nearly 1.5 million people have signed the AFAs petition as of 1 March 2017.
Target shares did plunge on 28 February 2017, but it wasnt due to its nearly year-old bathroom policy . The drop was
due to 2017 guidance announced during an investor day event. Projections were far lower than expected by Wall
Street analysts (the term guidance means projected earnings). The drop in Target stock corresponds to the announcement made
at their investor event:
According to Edward Jones analyst Brian Yarbough, Wall Street was expecting Target to project earnings of $5.30 per share, but the company
instead gave guidance of $3.80 to $4.20 per share which was well below expectations, prompting the drop in share value. According to Reuters,
Targets dive dragged others down with it:
Targets plunge prompted declines across the retail sector. Wal-Mart Stores Inc was down 2.0 percent, with Kroger Co down 1.2 percent and
Macys Inc off 1.7 percent. Dollar General Corp fell 4.2 percent.
What is dogging Target and other retailers has been competition with all-online retailers like Amazon, which do not have
the overhead cost of brick-and-mortar locations. Target, for example, has 1,803 stores. Online players dont have a huge network of
stores and since they dont have that cost, they can offer lower prices, Yarbough said. Customers also have the immediate ability to do price-
comparisons with smart phones.
These changing patterns are reflected in a statement given by Target CEO Brian Cornell:
Our fourth quarter results reflect the impact of rapidly-changing consumer behavior, which drove very strong digital growth but unexpected
softness in our stores. At our meeting with the financial community this morning, we will provide detail on the meaningful investments were
making in our business and financial model which will position Target for long-term, sustainable growth in this new era in retail. We will
accelerate our investments in a smart network of physical and digital assets as well as our exclusive and differentiated assortment, including the
launch of more than 12 new brands, representing more than $10 billion of our sales, over the next two years. In addition, we will invest in lower
gross margins to ensure we are clearly and competitively priced every day. While the transition to this new model will present headwinds to our
sales and profit performance in the short term, we are confident that these changes will best-position Target for continued success over the long
term.
Although Target offers online shopping, profit there tends to be lower due to associated costs like shipping and price
competition from the likes of Amazon. Retailers are struggling to survive with more profitable in-store sales lagging, and lower profit
margins due to a growing contingency of online shoppers:
Although its e-commerce operation is growing quickly, Target reported its third straight quarter of lower sales from existing stores, citing
unexpected softness and raising new questions about the health of large national retailers in the United States.
Target also forecast first-quarter profit well below Wall Street estimates. Shares sank 13 percent, on track for their biggest one-day percentage
drop in more than 18 years.
Targets stock has lost a quarter of its value since the 2016 holiday season started in November, and is now trading at its lowest level since
August 2014.
Target maintains the bathroom policy has had no effects on its business , with company spokeswoman Erika Winkels telling us
in an e-mail, We have made it clear over time that weve seen no material impact to the business based on the bathroom policy. We dont have
anything new or different to share. A poor performance in the 2016 holiday season was also attributed to online sales outpacing foot traffic, but
Target is, again, not the only chain feeling the effects:
Department stores across the country are paying the price for underestimating Amazon this holiday season.
Macys and Kohls both reported lower-than-expected sales during the all-important end-of-year retail period, and announced a spate of store
closures that will lead to thousands of lost jobs. Sears has even been reduced to selling off one of its iconic brands after a double-digit sales slide.
Industry observers blame online competition, as well as department store brands own shortfalls in adapting to a fundamental shift in consumer
behavior.
Nevertheless, Neil Saunders, managing director of GlobalData Retail, told us that Target could be worse off than it
is:
Its in a much better position than some retailers because its balance sheet is still robust whereas Sears and Macys are in a very difficult position.
With Target, its much more about tweaking and reinvention at the edges. [The guidance] wasnt great, but not as bad other people.
Wal-Mart has been buoyed by successfully offering groceries , Target has not been able to
Saunders told Reuters that while
keep up on that front, calling its grocery offerings confusing.
Target is neither a full-line grocer nor a player with lots of niche specialty products; it is neither a high-end player,
nor a price focused discounter, he said.
A-to Target Boycott Proves that civil society = anti-trans-

Conservative Boycott of Target does not prove that anti-trans- movements are powerful. The fact that Target
isnt ending their policy proves mainstream civil society is changing.
Heller 16
Laura - Reporter on Retail and consumer trends since 1995. Teaches journalism at Columbia College Chicago. Target's
Transgender Bathroom Policy Makes It A Boycott Target - Forbes April 23rd -
https://www.forbes.com/sites/lauraheller/2016/04/23/targets-transgender-bathroom-policy-makes-it-a-boycott-
target/#4eef7aa23ae4

Target has waded right into the debate about transgender and bathroom use, making it the first national retailer to
weigh in on the subject.
And now stands at the center of a boycott for its trouble.
Target said it will allow transgender visitors to its stores to use the bathroom and fitting room that best aligns with that person's gender identity.
On Tuesday it posted the following statement on its website:
Recent debate around proposed laws in several states has reignited a national conversation around inclusivity. So earlier this week, we reiterated
with our team members where Target stands and how our beliefs are brought to life in how we serve our guests.
Inclusivity is a core belief at Target. Its something we celebrate. We stand for equality and equity, and strive to make our guests and team
members feel accepted, respected and welcomed in our stores and workplaces every day.
We believe that everyoneevery team member, every guest, and every communitydeserves to be protected from discrimination, and treated
equally. Consistent with this belief, Target supports the federal Equality Act, which provides protections to LGBT individuals, and opposes
action that enables discrimination.
The statement comes after North Carolina's move to restrict public restroom use to the gender listed on a person's birth certificate. That measure
has sparked a national debate and many companies and celebrities have announced plans to pull business from the state or boycott.
And now Target finds itself the target of a boycott. The American Family Association is doing just that, asking for a boycott of
Target for its stated policy and the company is currently fielding furious customer queries on social media.
This isn't Target's first time in the cross hairs of equality issues.
In 2010, Target gave $150,000 to MN Forward, an organization that supported a Republican candidate for governor of Minnesota, Tom Emmer.
Emmer opposed same-sex marriage and members of the gay community were upset by the donation and boycotted what had been favored
retailer.
Target's CEO at the time, Gregg Steinhafel, sent an email to employees stating the company's support of gay rights, but said the donation and
support were strictly for business reasons.
But customers don't separate those two things (and anyone doubting this should read this from NPR). Target was a favored retailer and brand of
the gay community, and the donation put that status at risk.
The company retreated from its support of Emmer but Target learns lessons, and learns them well.
Conservative groups can call for boycotts all they want , it's unlikely that Target will lose much business. Quite the
opposite . History has proven that companies that come down on the side of inclusion, not exclusion, profit.
Being inclusive is simply good business, particularly for a company such as Target.
Target operates 1,800 stores, many of them in large urban markets. Its growth plan, in fact, is rooted in new urban stores
and on college campuses markets that tend to rally around traditional left-leaning causes. But those causes are no
longer those just for the left and have been adopted by more mainstream Americans .
Additional Impacts
Value to Life Impact

Failure to act denies Value to Life.


Segal 17
et al; Richard Segal is an attorney with the firm PlLLSBURY, WlNTHROP, SHAW and Pittman LLP. Richard holds a J.D., from
Harvard Law School and a B.A. in Political Science from Yale 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 - BRIEF OF AMICI CURIAE SCHOOL ADMINISTRATORS FROM THIRTY-ONE
STATES AND THE DISTRICT OF COLUMBIA 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_bsac_school_of_administrators_from_thirty-one_states_and_the_dis.pdf
Dr. VannasdalPs district reached a voluntary resolution agreement in 2013 with the DOJ and OCR. The resolution agreement included
adopting a comprehensive policy respecting students' gender identity covering, among other things, equal access to sex-segregated
restrooms and locker rooms consistent with gender identity.4 The outcome over the past three years has been "very positive for the
school, the district, and the students." Id.
Dr. Vannasdall now regularly consults with educators across the country, giving informal advice and guidance on inclusive policies for
transgender students. Id. He understands what it is like to grapple with the actual and anticipated negative reactions from parents and the
community - but when those are the primary concern, "you have people making decisions from the basis of fear and extremes, and that's never
good for kids." Julie Bosman & Mo toko Rich, As Transgender Students Make Gains, Schools Hesitate Over Bathroom Policies, N.Y. Times,
Nov. 4,2015, at A14 (quoting Dr. Vannasdall).5 The "game-changer" for Dr. Vannasdall's district for other districts with which he has
consulted is when educators "remember what we are here to do," i.e., to help kids learn. Vannasdall Interview I. Dr. Vannasdall
believes that generally school administrators new to dealing with transgender students are "overthinking this issue. This doesn't need to be as
tough as some people make it. It can be a good experience for that student and other students as well." Id.
Similarly, Dr. Thomas Aberli of Louisville, Kentucky was unfamiliar with this issue when it first arose, and had concerns about possible
disruptions or privacy issues. But Dr. Aberli tried to understand the student's request on both a personal level and in terms of the legal obligations
of the schools. Dr. Thomas Aberli Interview, Oct. 7, 2015 ("Aberli Interview"). He then developed a policy through an extensive collaborative
effort with a panel of school administrators, teachers and parents, in which "[w]e considered the issue very carefully and thoughtfully, and posted
all of the evidence we reviewed online." Aberli Interview.6 Some in the community expressed the view that inclusive policies might
be fine for schools in Los Angeles, but not in their own community. As Dr. Aberli pointed out in his testimony to the Kentucky
Senate Education Committee, however, empathy and equality do not stop at state borders :
The value of human life is the same in Kentucky as it is anywhere else in this nation. And when we're talking about an
issue of civil rights, we're talking about the value we put on human individuals.
Aberli Testimony. Understanding that the policy is about protecting students' basic civil rights helped clarify the
issue.
It helped people to understand that this wasn't about providing a special accommodation or "special rights" - this is about eliminating
discrimination. When you tell a person you will do something that makes them stand out from everyone else, that's when you start
discriminating against them.
Aberli Interview. When the issue was unfamiliar to many in the community, adults and a handful of students questioned the new policy.
I respect that some people may disagree or even feel uncomfortable with the policy, because honestly, for many people - including myself until a
few months ago - they simply weren't knowledgeable, or it wasn't a close enough personal issue in terms of interacting with openly LGBT people
to have a comfort level. I acknowledge and respect that. But I am not going to use someone's discomfort as a means for discriminating against a
protected population.
Id. Despite the initial opposition, in practice Dr. Aberli "received zero complaints regarding a specific incident of concern for a violation of
privacy. The concerns raised by individuals have all been philosophical." Id.
Indeed, in amici's experience, "an affirming policy has a positive effect on other students as well . If everyone is taken care of,
students see that and they value that." Denise Palazzo Interview, Oct. 3, 2015 ("Palazzo Interview"). "When kids see that you are respecting all
students, then they know that they will be respected. We are showing them how to treat people respectfully and know they will be treated the
same." Santa Interview. As Principal Peyton Chapman of Oregon relates:
Students have high integrity radars - if some youth are made fun of, then they know it could happen to them. These
fears keep all students in small boxes. They don't try things out, engage their creativity and figure out who they are and can be.
If schools define "who" students need to be and how they should behave, then they are less free to explore
themselves, cultures and communities.
Must Reject Trans- Discrimination

Reject this impermissible form of discrimination


Barbur 17
et al; Peter Barbur is an attorney that is the Counsel of Record for this Amicus Brief filed to the US Supreme Court. Barbur is an
attorney with the New York Firm Cravath, Swaine, & Moore. Barbur received his B.A. from Dartmouth College and his J.D.,
cum laude, from New York University School of Law. 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 196 MEMBERS OF CONGRESS AS AMICI CURIAE 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_bsac_196_members_of_congress.pdf

The Fourth Circuit's judgment should be affirmed and G.G. (Grimm) should be permitted to use the boys' bathroom at
his high school.
First, Title IX was designed to create and protect equal educational opportunities for students discriminated against on the basis of sex, who make
up a particularly vulnerable and marginalized part of any student body. Respondent G.G. is a transgender boy subjected to discrimination by his
school board solely because of his transgender status, and he has suffered psychologically and physically because the school board denies him
access to the boys' bathroom. The school board's new bathroom policy inhibits G.G.'s academic achievement and social well-being at
school. The policy fundamentallyundermines Title IX's central purpose , and is thus impermissible under Title IX.
Indeed, evensetting aside the Department of Education's or Department of Justice's now-withdrawn guidance, Title IX's
prohibition on discrimination "on the basis of sex" encompasses discrimination on the basis of gender identity and sex
stereotypes. This statutory interpretation is recognized and supported by this Court's precedent and lower court application of that precedent.
Surely the stereotype that an individual's gender identity ought to correspond to that person's birth-assigned sex is
the most basic form of impermissible sex-based discrimination .
Forcible Outing

Anti-trans- bathroom policies are violently discriminatory. It forcibly outs students and hampers learning
Dorf 17
et al; Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus
Test: Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice
Anthony Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard
as an undergraduate, he was the American Parliamentary Debate Association national champion. In the Supreme Court of the
United States: Gloucester County School Board, Petitioner, v. G.G., by his next friend and mother, Deirdre Grimm,Respondent.
Amicus Briefs - On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit March 2, 2017 AMICI
CURIAE IN SUPPORT OF RESPONDENT Modified for potentially objectionable language -
https://www.aclu.org/sites/default/files/field_document/16-273_bsac_bagenstos_et_al.pdf

V. APPLICATION OF THE BOARD'S RESTROOM POLICY TO TRANSGENDER STUDENTS SUBJECTS THEM


TO SEX-BASED DISCRIMINATION THAT TITLE IX PROHIBITS.
Things are very different, however, when a school, applying that same restroom policy, consigns transgender students to
restrooms on the basis of their external reproductive organs. Such a policy profoundly harms such students . And, far
from being "necessary," 118 CONG. REC. 5807 (remarks of Sen. Bayh), to achieve any important school interests, such
exclusion does not even help to advance such interests. Accordingly, such sex-based segregation subjects transgender students to
"discrimination" in violation of Title IX.
A. Harms to Transgender Students
The Gloucester Board prohibits Gavin Grimm from using the high school restrooms designated "male" because of his external reproductive
organs. Gavin alleged (J.A. 73), and it is not controverted, he would suffer "severe psychological distress" if he were to use the restrooms
designated "female," and that to do so "would be incompatible with his medically necessary treatment for Gender Dysphoria." Presumably,
however, the Board does not expect, and does not want, Gavin to use the "female" restrooms. Gavin, after all, appears to be, and presents himself
as, a boy. If he or other transgender boys entered a "female" restroom, many girls would undoubtedly object; confrontations would be likely; and,
as Respondent notes (Resp. Br. 28), it would "undermine the very privacy expectations regarding single-sex restrooms that the Board claims to be
protecting."
Accordingly, the Board policy, by design and in effect, effectively excludes Gavin from all common restrooms, and consigns Gavin and
other transgender students to use single-stall restroomswhat the Policy itself refers to as "alternative appropriate private facilities]."
J.A. 69. Gavin himself uses the nurse's single-stall restroom. Every time he does so, "I am reminded that nearly every person in my
community now knows I am transgender and that I have now been publically identified as 'different,"' which "increases my
feelings of dysphoria, anxiety, and distress." Pet. App. 151a. And every time Gavin enters that restroom, it "feels humiliating" because
"I am effectively reminding anyone who sees me go to the nurse's office that, even though I am living and interacting with the world in
accordance with my gender identity as a boy, my genitals look different." Id. 151a-152a.
Indeed, Gavin's situation is in many respects analogous to that of George McLaurin at the University of Oklahoma in 1950. See McLaurin v.
Oklahoma State Regents for Higher Ed., 339 U.S. 637 (1950). The University permitted McLaurin to use the same classroom, library and
cafeteria as students of other races. But it also assigned McLaurin "to a seat in the classroom in a row specified for colored students," and to
separate tables in the library and cafeteria. Id. at 640. Although there was "no indication that the seats to which he [was] assigned in these rooms
ha[d] any disadvantage of location, and such separations might have been "in form merely nominal," this Court held that the separation itself
nonetheless "signified] that the State, in administering the facilities it affords for professional and graduate study, set[] McLaurin apart from the
other students," such that McLaurin was "handicapped in his pursuit of effective graduate instruction." Id. at 640-41.
The same is true of Gavin Grimm: By relegating Gavin to single-stall restrooms, the Board sets him apart from all his peers,
and does so in an especially humiliating and stigmatizing way (whether or not that is the Board's intent), thereby "handicap
[ing]" (hampering) him in his educational pursuits.
Other students in the Gloucester School District who are likewise already known to be transgender would undoubtedly suffer the
same severe harms as Gavin. And things would only be worse for students who were not previously known to be transgender, because
application of the policy to them would frequently "out" them to their fellow students in cases where they had previously
successfully presented themselves to others as being of the sex corresponding to their gender identities.
Therefore there can be no denying that the Board's rigid, unyielding policy of sex segregation in school restrooms inflicts
grievous emotional and stigmatic harms on transgender students, and that it does so precisely because the school has segregated
them on the basis their "sex" under the Board's own definition of that term.
Quantification ev

Trans- discrimination impacts thousands of students on a daily basis


Segal 17
et al; Richard Segal is an attorney with the firm PlLLSBURY, WlNTHROP, SHAW and Pittman LLP. Richard holds a J.D., from
Harvard Law School and a B.A. in Political Science from Yale 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 - BRIEF OF AMICI CURIAE SCHOOL ADMINISTRATORS FROM THIRTY-ONE
STATES AND THE DISTRICT OF COLUMBIA 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_bsac_school_of_administrators_from_thirty-one_states_and_the_dis.pdf

Amici are school districts, superintendents, principals, school board members, general counsel, social workers, and other officials from
schools and school districts that have adopted, or are in the process of adopting, inclusive policies and practices for their transgender
students.2 Together, amici represent a broad cross-section of schools and districts from thirty-one States plus the
District of Columbia, collectively responsible for educating approximately 2.1 million students annually. Amici offer
valuable perspectives on a number of the issues in this case, based on their broad collective experience with adopting, implementing, and
enforcing such policies in their schools. Counsel for amici conducted interviews with certain individual amici in Fall 2015, Spring2016,
and Fall 2016 to obtain their input for this or earlier versions of this brief; synopses of amici interviews are on file with amici's counsel Pillsbury
Winthrop Shaw Pittman LLP. Amici who were not interviewed or are not quoted in this brief have experiences consistent with those expressed
herein.
The Appendix contains a list of amici and their background and relevant experience.
Thousands of transgender students attend American schools every day, many of whom - such as Respondent (Grimm)
G.G. - have come forward to request from their schools the same support and respect for their gender identity that all
other students receive as a matter of course. In amici's view, it is both the legal and professional obligation of all educators to provide that support and respect to all
students.
Amici's collective experiences refute the hypothetical concerns raised here by Petitioner Gloucester County School Board: that allowing all
students to access sex-specific facilities and amenities that match their gender identity will lead to general disruption; will violate the privacy or
"comfort" of other students; or will lead to the abolition of gender-segregated facilities and activities for all students. Amici have addressed and in
some cases personally grappled with many of the same fears and concerns in their own schools and districts. However, in amici's professional
experience, none of those fears and concerns has materialized in the form of actual problems in their schools. Instead, inclusive policies not
only fully support the reality of transgender students' circumstances, but also foster a safer and more welcoming learning environment
for all students.
Solvency specific to Trans-Discrimination
Aff solves Anti-Trans- Stigmas, Is a Pre-Req for broader change

The Aff is a necessary pre-requisite for change. Unlike most policy plans, this Aff doubles as a grassroots
education campaign. K-12 intervention is a workable scheme for shifting attitudes.
Segal 17
et al; Richard Segal is an attorney with the firm PlLLSBURY, WlNTHROP, SHAW and Pittman LLP. Richard holds a J.D., from
Harvard Law School and a B.A. in Political Science from Yale 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 - BRIEF OF AMICI CURIAE SCHOOL ADMINISTRATORS FROM THIRTY-ONE
STATES AND THE DISTRICT OF COLUMBIA 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_bsac_school_of_administrators_from_thirty-one_states_and_the_dis.pdf

Thousands of transgender students attend American schools every day, many of whom - such as Respondent (Grimm)
G.G. - have come forward to request from their schools the same support and respect for their gender identity that all
other students receive as a matter of course. In amici's view, it is both the legal and professional obligation of all educators to provide
that support and respect to all students.
Amici's collective experiences refute the hypothetical concerns raised here by Petitioner Gloucester County School Board: that allowing all
students to access sex-specific facilities and amenities that match their gender identity will lead to general disruption; will violate the privacy or
"comfort" of other students; or will lead to the abolition of gender-segregated facilities and activities for all students. Amici have addressed and in
some cases personally grappled with many of the same fears and concerns in their own schools and districts. However, in amici's professional
inclusive policies not
experience, none of those fears and concerns has materialized in the form of actual problems in their schools. Instead,
only fully support the reality of transgender students' circumstances, but also foster a safer and more welcoming learning
environment for all students .
Policies Respectful of Every Student's Gender Identity Minimize Disruptions and Help Create a Safe, Welcoming,
and Productive Learning Environment for All.
At first, we had our concerns - would letting students participate in activities and facilities that were consistent with their gender identity create
problems? What would happen?
Ultimately, we decided that we as the adults needed to manage our fears and give students the respect and dignity that they deserved. And I'm
pleased to say that none of our fears has materialized.
Dr. Judy Chiasson Testimony to the California Senate Education Committee on A.B. 1266 (June 12, 2013) ("Chiasson Testimony"), available at
https://www. youtube.com/watch?v=Xmq9dIQdsNE (last visited Feb. 28, 2017).
As educators who have devoted much of their lives to young people, amici recognize that all students deserve equal respect of and equal
treatment by their educators. Amici's schools and districts allow transgender students access to the same facilities and
opportunities as
other students of the same sex. Amici's collective experience is that inclusive policies are necessary
for a learning environment that is accessible, safe, and welcoming , which in turn enhances the educational experience for all
students. Respecting students' gender identity eliminates the disruption that results from singling out, stigmatizing, and
discriminating against transgender students, and avoids disrupting the normal social interactions involved in use of communal facilities.
By contrast, refusing to respect a student's gender identity is " toxic for the student - it says 'you are not welcome,'
every day ." Robert Motley Interview, Oct. 11,2016.
Petitioner is reacting to fears over the imagined consequences of fully integrating transgender students into the school community. AmicVs
experiences reveal that these fears are unfounded. AmicVs experiences with the inclusive policies in place in their schools - some for more than a
decade - have instead been overwhelmingly positive. Far from being disruptive or potentially unsafe, inclusive policies have minimized
disruption and safety concerns. The only disruption is caused by a lack of clarity about how to support transgender students. As Ms. Bruce of the
District of Columbia observes, "A policy that requires equal treatment is not difficult to implement. Beyond sorting it out at the beginning, it's not
an ongoing, lingering issue[J" Diana Bruce Interview, Oct. 5, 2015 ("Bruce Interview"). As educators, "[o]ur goal is to make sure that every
young person is as present and as able to engage in academic work as possible. Promoting
a safe and welcoming environment is a
way to promote education ." Id. The results have been overwhelmingly positive, not only for transgender students, but
for all students , faculty, administrators, and communities as a whole .
In Contrast to Adults' Unfounded Fears, Students' Experiences in Schools with Inclusive Policies Have Been Positive.
In amici's professional experience, fears and concerns about inclusive policies are almost exclusively held by adults , not
students . Students often set a leading example recognizing trans gender students' rightful place in school facilities that
match their gender identity. E.g., Howard Colter Interview, June 6, 2016 ("As to the students, I am most impressed. They are very
understanding and accepting of their classmates. It feels like the adult community is struggling with it more."); Bruce Interview ("Young people
are pretty savvy and comfortable, and can understand and empathize with someone who just wants to use the bathroom."); Roger Bourgeois
Interview, Oct. 8,2015 ("Bourgeois Interview") ("Most of the problem is with the adults; the students are pretty accepting of these issues."); Dr.
Eldridge Greer Interview, Oct. 14, 2016 ("Greer Interview") ("Students are much more resilient and forward-thinking than we as adults are."); Dr.
Rachel Santa Interview, May 27, 2016 ("Santa Interview") ("Adults have more issues than the students do."); Dr. David Vannasdall Interview,
Sept. 9, 2016 ("Vannasdall Interview II") ("With the kids, there hasn't been a problem at all."); Kathy Canavan, Transgender bathrooms already
happening in Delaware, Delaware Business Times, May 13, 2016 ("Meece Interview") (quoting Gregory Meece) ("We had a few parents ask
some questions, and we've had some express thoughts on it, but the students are 100% accepting.")3; Sherie Hohs Interview, Oct. 15, 2015 ("This
isn't a kid issue. It's an adult issue."). Based on her more than ten years' experience working with the inclusive policies in place at Los Angeles
Unified School District ("LAUSD"), the second-largest school district in the country, Dr. Judy Chiasson recounts:
Our experience has been that the fears of the adults rarely play out. The students are very affirming and respectful of their classmates. Most of the
reaction that I've ever encountered has been in response to people's fears, not the students' experiences. The students' experiences have been
overwhelmingly positive. I have yet to be called into a situation to respond to an actual incident; I've only had to respond to fears, and the fears
are unfounded. Dr. Judy Chiasson Interview, Sept. 23, 2015 ("Chiasson Interview").
Norms solvency

Restroom policies solve empirical studies show it can broadly re-shape norms.
Underwood 17
Barbara D. Underwood is the Solicitor General of New York. Underwood earned an A.B magna cum laude from Radcliffe
College of Harvard University in 1966 and received her law degree from Georgetown University Law Center in 1969.
Underwood clerked for then Associate Justice Thurgood Marshall of the Supreme Court from 1971 to 1972. Underwood was a
law professor for 10 years at the Yale Law School, from 1972 to 1982. She has argued twenty cases before the U.S. Supreme
Court. 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 States of New York,
Washington, California, Connecticut, Delaware, Hawai'i, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New
Mexico, Oregon. Pennsylvania, Rhode Island, Vermont, and Virginia, and The District of Columbia, 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-States-28CORRECTED29.pdf

C. The Amici States' Experience Shows That Protecting Transgender People from Discrimination Provides Important
Benefits Without Compromising Privacy or Safety, or Imposing Significant Costs.
As noted above, 20 States and at least 225 localities provide civil-rights protections to transgender people. These
antidiscrimination provisions including policies allowing trans gender people to use restrooms consistent with their
gender identity help to ease the stigma that transgender people often experience, thereby mitigating the related negative
effects on their educational, work, and health outcomes. Moreover, such laws and policies achieve those ends without threatening the safety or
privacy of any individual, or imposing significant costs.
1. Measures protecting transgender people from discrimination enhance their chances of success and their ability to contribute to their workplaces
and communities.
Supportive educational environments increase the likelihood of success for transgender students. Data from one national survey show that
transgender students who were often or frequently harassed had significantly lower grade-point averages than transgender students who were
never, rarely, or sometimes harassed.48
Inclusive school policies help to reduce harassment of transgender students by creating an atmosphere of general
respect and tolerance. For example, a survey of 31,000 Oregon students found that lesbian and gay students living in counties where few
school districts had anti-bullying policies were 2.25 times more likely to attempt suicide than similar students living in counties where many
school districts had adopted inclusive policies.49
Federal Signal Solvency

Supreme Court inaction will perpetuate anti-trans- societal norms.


Klein 17
et al; Linda Klein is the president of the American Bar Association and The Counsel of Record for this Amicus Brief. 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 AMERICAN BAR ASSOCIATION
AS AMICUS CURIAE 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_bsac_aba.pdf

Applying Title IX to prevent sex-based discrimination against transgender students is not merely consistent with this Court's
decisions interpreting that statute. It is also consonant with the larger body of this Court's anti-discrimination jurisprudence.
The Court has long recognized that both the Equal Protection Clause of the Fourteenth Amendment and federal anti-discrimination statutes have
as a primary purpose the guarantee of "equal participation in [the] civic life" of the community. Holland, 493 U.S. at 489 (Kennedy, J.,
concurring); see also Washington v. Seattle Sch. Dist No. 1, 458 U.S. 457, 467 (1982) ("The Equal Protection Clause of the Fourteenth
Amendment guarantees racial minorities the right to full participation in the political life of the community."); Kat-zenhach v. McClung, 379 U.S.
294,300 (19(54) (Congress enacted Title II of the Civil Rights Act in response to evidence that discrimination discourages targeted groups from
traveling to, living, and working in areas where such practices occur).
This Court has expressed particular concern about excluding people from the social web of our Nation in cases involving discrimination in public
education. See Brawn v. Board ofEduc, 347 U.S. 483,493 (1954). The Court has explained that "education has a fundamental role in maintaining
the fabric of our society," and stands out from other services provided by the government because of "the importance of education in maintaining
our basic institutions." Plyler v. Doe, 457 U.S. 202, 221 (1982). Schools "prepar[e] ... individuals for participation as citizens." Ambach v.
Norwich, 441 U.S. 68, 76 (1979). Laws that prevent certain students from obtaining an education, therefore, not only exclude those students from
the school community, but also deny those students the tools they need to become fully contributing members of the larger community. Because
of the special role of education, our nation bears "significant social costs" when students are de-nied access to education, and thereby "denied the
means to absorb the values and skills upon which our social order rests." Plyler, 457 U.S. at 221; see also Wisconsin v. Yoder, 406 U.S. 205, 221
(1972) ("LEJducation is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve
freedom and independence.").
In Virginia, for example, the Court stressed the deleterious effect of historical attitudes toward women in education that had resulted in fewer
opportunities being offered to women. 518 U.S. at 534-546; see also Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 729-731 (1982)
(State's "policy of excluding males [from State-supported nursing school | tends to perpetuate the stereotyped view of nursing as an exclusively
woman's job"). As the Court emphasized, "[sltate actors controlling gates to opportunity ... may not exclude qualified individuals based on 'fixed
notions concerning the roles and abilities of males and females.'" Virginia, 518 U.S. at 541.
Finally, the Court has been attentive to the harmful effects that discrimination has on the individual, as well as the individual's opportunity to
contribute to society at large. When individuals are classified and treated based on assumptions about characteristics of their race, sex, or other
irrelevant markers, this Court has found that they are deprived of their "individual dignity" and autonomy. Roberts, 468 U.S. at 625
("[Discrimination based on archaic and overbroad assumptions about the relative needs and capacities of the sexes forces individuals to labor
under stereotypical notions that often bear no relationship to their actual abilities."). When governmental actors act in reliance on
racial or gender stereotypes, "they ratify and rein-force prejudicial views (perspectives) of the relative abilities" of the groups,
J.E.B., 511 U.S. at 140, creating a "stigma or dishonor" that denies the equal protection of the law, Powers v. Ohio, 499 U.S. 400, 410
(1991). See also J.E.B., 511 U.S. at 139 n.ll ("|S|tate actors |must| look (go) beyond the surface before making judgments about
people that are likely to stigmatize as well as to perpetuate historical patterns of discrimination.").
These fundamental principles of anti-discrimination law are entirely consistent with interpreting Title IX to guarantee
transgender students the right to use the bathroom corresponding to their gender identity. That interpretation frees transgender
students from the differential treatment and stereotypes that would deny them equal access to educational opportunities, and thus gives them an
equal opportunity to participate in the civic life of the community.
A-to Specific Neg args
A-to Single-Use or Faculty restrooms solve

Single-Use and Faculty restrooms dont solve can cause stigmatization and forced outing.
Underwood 17
Barbara D. Underwood is the Solicitor General of New York. Underwood earned an A.B magna cum laude from Radcliffe
College of Harvard University in 1966 and received her law degree from Georgetown University Law Center in 1969.
Underwood clerked for then Associate Justice Thurgood Marshall of the Supreme Court from 1971 to 1972. Underwood was a
law professor for 10 years at the Yale Law School, from 1972 to 1982. She has argued twenty cases before the U.S. Supreme
Court. 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 States of New York,
Washington, California, Connecticut, Delaware, Hawai'i, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New
Mexico, Oregon. Pennsylvania, Rhode Island, Vermont, and Virginia, and The District of Columbia, 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-States-28CORRECTED29.pdf

transgender people are needlessly denied


Petitioner's policy subjects G.G. and other transgender students to just such discrimination. Under that policy,
a privilege most people take for grantedthe ability to use a public restroom consistent with their lived experience of
their gender. Transgender people are thus singled out and forced either to forgo restroom use or to choose between two other detrimental and demeaning options.
First, they can in principle use common restrooms corresponding to their sex assigned at birth. But doing so transgresses a core aspect of their identities, violates
harassment and violence.82 Second, transgender people can use single-
medical treatment protocols (see JA 66-67), and subjects them to potential
use restrooms. Yet such facilities may not be readily available and, in any event, the use of such facilities may have stigmatizing
effects. For example, use of such a facility may result in "outing" the individual as trans gender in a setting where he or she could
be exposed to danger or prefers to keep that aspect of his or her identity private. See Resp. Br. 31-32.

Single-Use and Faculty restrooms dont solve it creates a violent separate but equal norm.
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
The harm these discriminatory policies cause cannot be remedied by allowing transgender students to use single-stall
facilities. Requiring transgender students to use different facilities than other students is a form of " separate but
equal" treatment that imposes significant burdens on those students. Exclusion from appropriate restrooms denies
transgender students the equal access to education that Title IX guarantees. It visibly marks them as different from their peers,
thereby exposing them to increased risk of violence and harassment; it also requires them to miss class and activity time to visit
bathrooms that may not be conveniently located. Resp. Br. 29-30. Title IX's nondiscrimination mandate will not be fulfilled
unless transgender students have equal access to the facilities where they belong.

Third party restrooms cause outing and stigmatization


Levine 17
et al; Richard L. Levine is an attorney with Weil, Gotshal & Manges LLP and serves as the Counsel of Record for this Amicus
Brief. Mr. Levine is on the governing committee of the Cyrus R. Vance Center for International Justice and holds a JD from
NYU Law. 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 HUMAN RIGHTS
WATCH AND THE NEW YORK CITY BAR ASSOCIATION AS AMICI CURIAE SUPPORTING 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_bsac_human_rights_watch.pdf

Restrictions on Use of Restrooms Undermines Transgender Students Right to Privacy By Effectively Outing Them
as Transgender to Peers and School Staff.
As with G.G.'s school district, some schools have given transgender students use of single-stall restrooms or faculty restrooms
or other facilities usually off-limits to students as an alternative to allowing transgender students to use facilities corresponding
with their gender identity. However, this "compromise" creates still further problems. Indeed, forcing gender neutral
options (including faculty, office, and nurse's restrooms, among others) on transgender students unfairly requires publicly conveying
their transgender status to administrators, teachers, and peers, a clear violation of their right to privacy.91 It also singles out transgender
students and sends the message that they are somehow inferior to or unfit to share space with their peers.
Excess State Flexibility Bad Backlines
Innovation Backlines
Innovation is key to the US Economy

Innovation is key to the US economy


Engler 6
John Engler is the former Governor of Michigan and serves as the President of The National Association of Manufacturers
Innovation is the key to economic strength Plant Engineering March 1st - http://www.plantengineering.com/single-
article/innovation-is-the-key-to-economic-strength/fa55300a6636484ebbfb1b3c2f1238f2.html
The real key to America's economic strength has always been creativity and innovation. Since this country's founding,
Americans have been eager to embrace new concepts and capitalize on them. We've developed ingenious new systems for production
and distribution and unlocked mysteries in diverse areas such as health care, technology, engineering and industry. Americans
have always been willing to go beyond the beaten path, experiment with radical new ideas and invest in the future.
All the while, manufacturing has been an important seedbed of America's creativity. Manufacturing generates nearly two-thirds of industrial
research and development, which is a major reason why manufacturing accounts for three-fourths of the nation's exports and supports more than
20 million high-paying jobs. Innovation has generated the productivity that has accounted for half of the GDP growth over the past 50 years, and
manufacturing continues to set the pace. Today, despite unprecedented global competition, total manufacturing output and productivity are at
record levels, capital investment is rising and product quality has never been higher. By itself, U.S. manufacturing would be the eighth largest
economy in the world.
But while there is no question that our nation's strength lies in our leadership in innovation and productivity, it is equally
true that our leadership is being challenged as never before. A recent National Association of Manufacturers (NAM) report by The
Manufacturing Institute found that downward trends in U.S. manufacturing innovation pose a serious threat to America's long-term economic
growth and living standards.
America's continuing leadership in innovation and the production of high-value manufactured goods is essential to our nation's
long-term economic growth , productivity gains and standard of living. But America's economic leadership will be at risk if current trends
continue. We are being challenged by global competition, a looming skills gap that poses a future worker shortage, and by increased structural
production costs. And while the United States continues to spend more than any other country on R&D investment, U.S. growth in R&D has
averaged only about 1 percent per year in real terms since 2000. This is a "wake-up" call - a call to invest in America, in our current and future
workers and in our ingenuity.

Innovation is key to the US economy


Bordogna 3
Joseph Bordogna - internally quoting the magazine The Economist. Joseph Bordogna is The Deputy Director Chief Operating
Officer National Science Foundation - "IMPORTANCE OF ENTREPRENEURS TO THE U.S. ECONOMY" - Proceedings
Teaching Entrepreneurship to Engineering Students -
http://dc.engconfintl.org/cgi/viewcontent.cgi?article=1002&context=teaching

In fact, the
Economist probably said it better: "America gets more than half of its economic growth from industries
that barely existed a decade ago..."
So how do we define entrepreneurs?
Entrepreneurs are risk takers, implementers, rule breakers, adventurers; or in a word: innovators.
And there's no question that innovation is the heart of economic progress . Innovation is the very bones and sinew of our
economy and society. It (allows) enables us to compete in the global marketplace, raises our prospects for more productive and
satisfying lives, and strengthens our national security.
Yes, Roll-back
Trump Administration = greater risk of civil rights roll-back

Trump Administration means greater risk of federal roll-back on civil rights.


Eilperin 17
et al; Juliet Eilperin is The Washington Post's senior national affairs correspondent - Trump administration plans to minimize
civil rights efforts in agencies Washington Post May 29th - https://www.washingtonpost.com/politics/trump-administration-
plans-to-minimize-civil-rights-efforts-in-agencies/2017/05/29/922fc1b2-39a7-11e7-a058-
ddbb23c75d82_story.html?utm_term=.2496374792fe

The efforts
to reduce the federal profile on civil rights reflects the consensus view within the Trump administration
that Obama officials exceeded their authority in policing discrimination on the state and local level , sometimes
pressuring targets of government scrutiny to adopt policies that were not warranted.
Administration officials made clear in the initial weeks of Trumps presidency that they would break with the civil
rights policies of his predecessor. Attorney General Jeff Sessions ordered a review of agreements to reform police
departments, signaling his skepticism of efforts to curb civil rights abuses by law enforcement officers . His Justice
Department, meantime, stopped challenging a controversial Texas voter identification law and joined with the
Education Department in withdrawing federal guidance allowing transgender students to use school bathrooms
corresponding to their gender identity.
Roll-back spills beyond Education or Trans- Policy

Such roll-back would include hard-won gains like anti-discrimination provisions that counter sexist and
racist bigotry
Choe 17
et al; Ken Choe was Deputy General Counsel and Counselor to the Office of Health Reform at the Department of Health and
Human Services (HHS), where he was lead agency counsel with respect to the ACA, as well as Medicare, Medicaid, and other
healthcare financing programs administered by the Centers for Medicare & Medicaid Services. Ken holds a J.D., The George
Washington University National Law Center - 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 AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE AND THE NATIONAL LGBT
BAR ASSOCIATION AS AMICI CURIAE 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/2017/03/16-273bsacamericansunitedforseparationofchurchandstate.pdf

G.G. simply wants to use restrooms that correspond with his gender identity. Title IX ensures that he may do so, regardless of the moral or
religious disapprobation that some may direct his way.
ARGUMENT
MORAL AND RELIGIOUS DISAPPROVAL OF TRANSGENDER INDIVIDUALS PERVADES THIS DISPUTE.
Gender dysphoria"the distress that may accompany the incongruence between one's experienced or expressed gender and one's assigned
gender," Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (DSM-5) 451 (5th ed. 2013) raises serious moral and
theological questions for many people, including those whose beliefs about sex roles and gender identity are rooted in their faith. It is thus
unsurprising that, when G.G., a seventeen-year-old transgender boy, sought to use the boys' restrooms at his public high school, some community
members reacted based on their religious and moral beliefs, including by expressing disapproval of transgender people. Indeed, at least one
amicus brief in this case asks this Court to uphold the Board's policy based on that same religion- and morality-based disapproval.
During his freshman year of high school, G.G. came out to his parents as a transgender male and was determined to have gender dysphoria. Pet.
App. 108a, 147a. Consistent with his psychologist's advice and the recommended standard of care for transgender minors, G.G. began to live as a
boy in all respects. He adopted a boy's name, referred to himself with male pronouns, and used public men's restrooms. Pet. App. 147a; C.A.
App., ECF 14, at 9-10 If 3; 13, H 23.
G.G. also took steps to ensure that his needs as a transgender student were met at school. In August 2014, before he began his sophomore year,
G.G. and his mother met with school administrators, informed them that he is a transgender male, and arranged with them to notify his teachers
about his preferred name and pronouns. Pet. App. 108a, 148a. Initially, G.G. used the special restroom in the school nurse's office. Pet. App.
149a. But he soon found using the nurse's special restroom to be stigmatizing and demeaningrobbing him of his dignity. Ibid.\ C.A. App. 15, f
31. The nurse's office was also far from G.G.'s classrooms, making it difficult for him to use the special restroom and still get to class on time.
Pet. App. 149a. Thus, G.G. asked for and received permission to use the regular boys' restrooms. Ibid.', C.A. App. 15, f 31. The next day,
however, the School Board "began receiving numerous complaints from parents and students." Pet. App. 144a.
The School Board responded by holding a public meeting in November 2014 at which community members were invited to comment on a
proposed resolution to prohibit transgender students from using the school restrooms that match their gender identity. Pet. 6> Br. in Opp'n 67.
The meeting immediately took on sharply moralistic and religious overtones. The first two speakers, who supported the proposed resolution,
made a point to explain that they are pastors. Video- November 11, 2014 School Board Meeting, at 13:10-15:25, 15:30-17:20 (Gloucester County
School Board 2014), https://tinyurl.com/zd69s3a. Another speaker read a Bible verse and suggested that people are born transgender because "sin
has damaged everything"; the speaker argued that recognizing transgender rights reflects "morality creep." Id. at 53:3555:00.
Some speakers countered by urging the Board not to consider community members' religious or moral opposition to transgender students when
making its decision. G.G.'s (Grimms) mother highlighted that people with strong religious convictions were aligned on both sides of the issue.
Id. at 27:35-33:45. Another speaker emphasized that he is Christian and believes, consistent with his faith, in the separation of church and state.
Id. at 57:30-40. Two others urged the Board to put aside religious beliefs when voting on the resolution. Id. at 1:34:00-1:37:40, 1:38:15-1:39:10.
The Board entertained public comment on the proposed resolution at a second meeting. Once again, religion and morality emerged as themes.
One speaker argued that recognizing transgender rights would violate "the laws of nature." Video: December 9, 2014 School Board Meeting, at
1:02:10-1:04:45 (Gloucester County School Board 2014), https://tinyurl.com/jgfcesf. Another declared that rejecting the proposed resolution
would be immoral. Id. at 1:11:451:14:11. Still another emphasized that God created men and women, and then invoked the biblical passage,
"wide is the way that leads to destruction." Id. at 1:18:10-1:20:40. And another said: <cYou do not have an unalienable right to choose your own
sex; nature's God chose it for you. * * * Here, we have 1,000 students versus one freak. Who should accommodate whom?" Id. at 1:21:25-
1:23:50.
As at the first public meeting, some speakers tried to combat these appeals to theology and morality. One emphasized that the issue before the
Board did not implicate morality. Id. at 1:10:101:11:35. Another urged the Board not to consider religion when rendering its decision because,
"as far as the religion aspect goes, * * * there is a wall, a separation of church and state." Id. at 1:33:20-1:35:35.
After hours of these and other public comments, the Board voted 61 to adopt the proposed resolution, thereby restricting the use of the boys'
and girls' facilities at Gloucester County schools to "the corresponding biological genders." Pet. App. 144a. Since then, G.G. has been unable to
use the boys' restrooms, under threat of disciplinary consequences. Id. at 150a; C.A. App. 18, If 45.
Such expressions of moral and religious disapproval have followed this dispute into the courtroom , including in briefs
filed with this Court. For example, an amicus brief by former Alabama Supreme Court Chief Justice Roy Moore's Foundation for Moral Law
urges this Court not to "sanction" the idea that "rejecting one's birth sex" is "morally" acceptable, Br. for Found, for Moral Law as Amicus Curiae
Supporting Pet'r 6, citing both the "general discomfort of the public with behavior the American Psychiatric Association formerly termed the
manifestation of a mental disorder," id. at 11, and God's commands as laid out in the Holy Bible, id. at 1415. See also Br. for the Gen.
Conference of the Seventh-Day Advent-ists & the Becket Fund for Religious Liberty as Amici Curiae Supporting Pet'ri Br. for Major Religious
Orgs, as Amici Curiae Supporting Pet'r* Br. for Religious Colleges, Schools, and Educators as Amici Curiae Supporting Pet'r Br. for Christian
Educators Ass'n Intl, et al. as Amici Curiae Supporting Pet'r.
MORAL AND RELIGIOUS OBJECTIONS TO TRANSGENDER INDIVIDUALS MAY NOT JUSTIFY
GOVERNMENTAL DECISIONMAKING.
Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial
assistance." 20 U.S.C. 1681(a).
When Title IX was signed into law more than forty years ago, its antidiscrimination mandates contravened the traditional
religions and moral commitments of large segments of the public. Some people believed then ( as some believe now )
that disparate treatment of the sexes was not just the way things were, but indeed the way they ought to be. Cf.
Alexandra Polyzoides Buek & Jeffrey H. Orleans, Sex Discrimination A Bar to a Democratic Education-Overview of Title IX of the
Education Amendments of1972, 6 Conn. L. Rev. 1, 1-3 (1973).
Congress did not, however, make the interpretation and enforcement of Title IX subservient to those widely held behefs. Whether a governmental
policy violates Title IX is a matter of statutory interpretation alone. And by its plain terms, Title IX does not permit secular schools
that accept federal funds to exempt themselves from the Act's requirements based in whole or in part on moral or
religious objections to compliance.3 Nor could it. Invidious govern-mental discrimination against a class is verboten under this Court's
settled constitutional jurisprudence, including when that discrimination is based on moral or religious disapproval of the class.
A. Moral Disapproval of a Class Cannot Justify Discriminatory Treatment Under the Equal Protection Clause.
The government cannot discriminate against a class of individuals based on undifferentiated fear, generalized public unease, or even heartfelt
moral disapproval Bonier v. Evans, 517 U.S. 620, 631-632 (1996); U.S. Dep't of Agric. v. Moreno, 413 U.S. 528 (1973). In charting the
fundamental elements at the heart of the Constitution's equal-protection guarantee, this Court has repeatedly invalidated
governmental classifications that were defended based on animus toward a class. That is true whether the animus was expressed
openly, Moreno, 413 U.S. at 534; as unsubstantiated fears or negative attitudes, City of Cleburne v. Cleburne Living Ctr, 473 U.S. 432, 448450
(1985); or as codifications of religious or moral disapproval, see Bower, 517 U.S. at 635-636. "[E]ven in [a] * * * case calling for the most
deferential of standards," the Equal Protection Clause requires that "legislative classifica-tion[s] * * * bear a rational relation to some legitimate
end." Rower, 517 U.S. at 631-632. "[I]f ***'equal protection of the laws' means anything, it must * * * mean that a bare [] desire
to harm a politically unpopular group cannot constitute a legitimate governmental interest." Moreno, 413 U.S. at 534.
Moreno marked the Court's first express acknowledgement that animus toward a class is not a legitimate governmental interest. There, Congress
had amended the Food Stamp Act of 1964 to withdraw benefits from households containing an individual unrelated to any other member of the
household. The Act's legislative history revealed that the provision "was to prevent * * * 'hippies' * * * from participating in the food stamp
program." 413 U.S. at 534. Relying on the equal-protection component of the Due Process Clause of the Fifth Amendment, the Court struck
down the provision, explaining: "[A] purpose to discriminate against hippies cannot, in and of itself[J * * * justify" congressional action. Id. at
534535 (internal quotation marks omitted).
Eleven years later, in Palmore v. Sidoti, the Court reiterated that "[p]rivate biases may be outside the reach of the law, but the law cannot, directly
or indirectly, give them effect." 466 U.S. 429, 433 (1984). In reviewing a custody dispute, therefore, the Court had "little difficulty" concluding
that the district court had erred in granting custody to a father based on the court's belief that the mother's mixed-race relationship would make the
child "vulnerable to peer pressures" and "social stigmatiza-tion." Id. at 431, 433. Relying this time on the Equal Protection Clause of
the Fourteenth Amendment, the Court held: "Public officials sworn to uphold the Constitution may not avoid a constitutional duty by
bowing to the hypothetical effects of private racial prejudice ." Ibid, (internal quotation marks omitted).
Plan Solves Roll back

A Grimm win place Equal Protection over specific religious objections avoiding a broader rollback
Choe 17
et al; Ken Choe was Deputy General Counsel and Counselor to the Office of Health Reform at the Department of Health and
Human Services (HHS), where he was lead agency counsel with respect to the ACA, as well as Medicare, Medicaid, and other
healthcare financing programs administered by the Centers for Medicare & Medicaid Services. Ken holds a J.D., The George
Washington University National Law Center - 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 AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE AND THE NATIONAL LGBT
BAR ASSOCIATION AS AMICI CURIAE 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/2017/03/16-273bsacamericansunitedforseparationofchurchandstate.pdf

Accepting Religions Objections to Transgender Individuals as a Valid Justification for Petitioner's Actions Would
Raise Grave First Amendment Concerns.
As the wide array of amicus briefs from religious individuals and organizations in this case demonstrates, people of faith have many and
varied beliefs about gender dysphoria and transgender individuals. All have the right to make their voices heard before
governmental bodies, as the people in Gloucester County did at school-board meetings. But the First Amendment flatly forbids
official preferences for some faiths over others. See, e.g., Epperson v. Arkansas, 393 U.S. 97, 104 (1968); Larson v. Valente, 456 U.S.
228, 244-246 (1982).
To the extent, therefore, that a governmental entity acts to ameliorate offense to the religious beliefs of some citizens at the expense of others, its
actions raise serious First Amendment concerns in at least two respects. First, if official action was undertaken to cater to certain religious views,
beliefs, or preferences, the act has an impermissible religious pur-pose. And second, to the extent that government seeks to accommodate the
religious beliefs and religious exercise of some persons by imposing the burdens and costs of that religious exercise on others, the action far
exceeds what the Free Exercise Clause mandates or even allowsonce again violating the Establishment Clause.
"When the government acts with the ostensible and predominant purpose of advancing religion, it violates th[e] central Establishment Clause
value of official religious neutrality, there being no neutrality when the government's ostensible object is to take sides." McCreary County, v.
ACLU of Ky, 545 U.S. 844, 860 (2005). Hence, this Court has consistently required that governmental action must have a preeminently secular
purpose. Ibid.
The public comments at the school-board meetings included passionate religious arguments for refusing to respect the gender identity of
transgender students. Under these circumstances, were a governmental actorwhether a school board or a courtto consider "catering to
community concerns" as potential justification for the policy, serious Establishment Clause questions would arise. For when the government acts
to satisfy the religious preferences of a certain segment of constituents, over the objections of others, there is strong reason to conclude that the
express religious purpose of the favored constituents should be imputed to the government. See, e.g., Epperson, 393 U.S. at 107 (Arkansas law
restricting the teaching of evolution could not constitutionally be justified as merely acceding to "the religious views of some of [Arkansas']
citizens" because "the state has no legitimate interest in protecting any or all religions from views distasteful to them.") (quoting Joseph Buvstyn,
Inc. v. Wilson, 343 U.S. 495, 505 (1952)).9 The same is true under the Equal Protection Clause. See, e.g., Cleburne, 473 U.S. at 448 ("[T]he City
may not avoid the strictures of [the Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic.")^
Palmore, 466 U.S. at 433.10
2. Additionally, when government acts to accommodate religious beliefs or practices, "courts must take adequate
account of the burdens a requested accommodation may impose on nonbeneficiaries" so as not to run afoul of the
Establishment Clause. Cutter v. Wilkinson, 544 U.S. 709, 720 (2005).11 If that is true when, as in Cutter, a governmental actor is asked merely to
leave space for private religious observance, it must be all the more true when the government goes out of its way to adopt a particular religious
viewpoint as official policy, compels everyone to act consistent with the favored religious beliefs, and thereby imposes costs and burdens on
nonbeneficiaries.
Here, the School Board's policy consigns G.G. (Grimm) either to conform to sex stereotypes or to be sequestered in
separate facilities. If the School Board were to invoke the religious beliefs and preferences of some members of the community to subject
G.G. to that shame and humiliationnot to mention the discomfort and health risks of not using the restroom all day, or the penalty of missing
class to get to and from the only restroom left open to himthe Establishment Clause concerns would be inescapable. And as the public
comments to the Board amply demonstrate, relying on religious and moral views to make policy introduces into the public
discourse the very divisiveness that the Establishment Clause was intended to prevent . See Van Orden v. Perry, 545 U.S.
677, 698 (2005) (Breyer, J., concurring in the judgment).
Those concerns can and should be avoided here by doing as the Equal Protection Clause also requires: The Court
should determine the questions of statutory and regulatory interpretation as the Fourth Circuit did, without giving weight to the
religious and moral disapprobation toward transgender people that was raised in public comments to the School Board and now
has been put before this Court.
This Court's constitutional jurisprudence prohibits the School Board from using moral and religious disapproval of a class to justify its restroom
policy. Morality- and religion-based objections to transgender individuals must not inform federal, state, or local governments' interpretations and
applications of the law. Moral and religious disapproval are also irrelevant to the questions of statutory and regulatory interpretation presented by
this case. So the Court should not concern itself with any consideration of such objections. Rather, t he Court should affirm an
interpretation of Title IX that properly safeguards trans gender students against discriminatory treatment.

Repudiating Religious-based objections in public school settings is key otherwise a host of anti-
discrimination protection protections could get rolled-back.
Fleishman 17
et al; Barry J. Fleishman attorney at Shapiro, Lifschitz & Schram, PC.; and Counsel of Record for this Amicus Brief - 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 ANTI-DEFAMATION
LEAGUE 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_bsac_anti-
defamation_league_et_al.pdf

Amici do not question that these and other organizations hold sincere religious positions regarding gender identity. As
discussed below, however, this Court's consistent precedent strongly counsels that such exclusionary religious beliefs
should have no place in the constitutional assessment of whether transgender students can be denied the use of restrooms
in accordance with their gender identity under Title IX.
Religious disapproval historically has been an unsustainable basis for discrimination.
A pattern has repeated itself throughout American history: Pervasive discriminatory practices that now seem
preposterous were defendedand, in many cases, extolledin their day on grounds of religious disapproval. Indeed, religious
disapproval was relied on to support a legal and moral basis for slavery, segregation , anti-miscegenation laws , policies
that discriminate against women , and laws that target LGBT people . Time and again, however, society has come to see these
laws as a stain on the nation's history and to view the religious and moral justifications offered for them as wrong, both spiritually and
philosophically. Consequently, religious and moral justifications for discrimination have been abandoned and judicial opinions upholding them
have been repudiated.
A-to Specific Neg arguments
A-to Alt Cause STEM education key to innovation

Our internal link of employment discrimination outweighs their STEM internal link. Employment
discrimination removes the best and brightest from the workforce. It also hampers collaboration. STEM
shortages are long-term employment discrimination impacts the current workforce making it a shorter-
term risk to innovation.

Their Engler ev cites a Georgetown STEM study. Its wrong.


Charette 13
Robert N. Charette - Contributing Editor for Risk Factor, a publication of IEEE the Institute of Electrical and Electronics
Engineers. Charette is the author of multiple books and numerous articles on the subjects of risk management, project and
program management, innovation, and entrepreneurship. A member of the IEEE for 35 years, Charette was a recipient of the
IEEE Computer Societys Golden Core Award in 2008. The STEM Crisis Is a Myth - Aug 30th 2013 -
http://www.k12accountability.org/resources/STEM-Education/The_STEM_Crisis_Is_a_Myth.pdf

Now consider the projections that suggest a STEM worker shortfall. One of the most cited in recent U.S. debates
comes from the 2011 Georgetown University report mentioned above, by Anthony P. Carnevale, Xicole Smith; and Michelle Melton of the
Center on Education and the Workforce fhttp://cew.georgetown.eda/). It estimated there will be slightly more than 2.4 million STEM
job openings in the United States between 2008 and 2018, with 1.1 million newly created jobs and the rest to replace workers who retire or
move to non-STEM fields; they conclude that there will be roughly 277 000 STEM vacancies per year.
But the Georgetown study did not fully account for the Great Recession . It projected a downturn in 2009 but then a steady
increase in jobs beginning in 2010 and a return to normal by the year 2018. In fact, though, more than 370 000 science and engineering
jobs in the United States were lost in 2011 Qittp:/';'www.usnews.com/debate<lub/should-h-b^Tsas-be-e^ according to the Bureau of
Labor Statistics.
I don't mean to single out this study for criticism ; it just illustrates the difficulty of accurately predicting STEM
demand and supply even a year or two out , let alone over a prolonged period. Highly competitive science- and technology-driven
industries are volatile, where radical restructurings and boom-and bust cycles _have been the norm (http:.y
v.T.^v.toda;,'senineer.or.'2003;'Aug.'Unemployment.pdi) for decades. Many STEM jobs today are also targets for outsourcing
flittp:;';^\iv^\fas.org/sgp;''crs-''misc;'RL^22Q2.pdf) or replacement by automation flittp://wTO\\npr.org/20ii/11/0:^1419 higher-skill-jobs).

Their STEM internal link is a false crisis. Theres no shortage in STEM worker pipeline.
Charette 13
Robert N. Charette - Contributing Editor for Risk Factor, a publication of IEEE the Institute of Electrical and Electronics
Engineers. Charette is the author of multiple books and numerous articles on the subjects of risk management, project and
program management, innovation, and entrepreneurship. A member of the IEEE for 35 years, Charette was a recipient of the
IEEE Computer Societys Golden Core Award in 2008. The STEM Crisis Is a Myth Modified for language that may offend -
Aug 30th 2013 - http://www.k12accountability.org/resources/STEM-Education/The_STEM_Crisis_Is_a_Myth.pdf

Given all of the above, it is difficult to make a case that there has been, is, or will soon be a STEM labor shortage. "If there
was really a STEM labor market crisis, you'd be seeing (observing) very different behaviors from companies," notes Ron
Hira, an associate professor of public policy at the Rochester Institute of Technology, in New York state. "You wouldn't see companies cutting
their retirement contributions, or hiring new workers and giving them worse benefits packages. Instead you would see signing bonuses, you'd see
wage increases. You would see (observe) these companies really training their incumbent workers. "
"None of those things are observable, Hira says. "In fact, they're operating in the opposite way.'
So why the persistent anxiety that a STEM crisis exists? Michael S. Teitelbaum, a Wertheim Fellow at Harvard Law School and a
senior advisor to the Alfred P. Sloan Foundation, has studied the phenomenon, and he says that in the United States the anxiety dates
back to World War II. Ever since then it has tended to run in cycles that he calls "alarm, boom, and bust." He says the cycle
usually starts when "someone or some group sounds the alarm that there is a critical crisis of insufficient numbers of scientists,
engineers, and mathematicians" and as a result the country "is in jeopardy of either a national security' risk or of falling
behind economically." In the 1950s, he notes, Americans worried that the Soviet Union was producing 95 000 scientists and engineers
thttp:,';'pubs.acs.org/doi,'abs/10.1021/cen-vo33noi->.p 15 22) a year while the United States was producing only about 57 000. In the 1980s, it
was the perceived Japanese economic juggernaut that was the threat, and now it is China and India.
You'll hear similar arguments made elsewhere. In India, the director general of the Defence Research and Development Organisation, Vijay
Kumar Saraswat, recently noted that in his country, "a meagre four persons out of every 1000 are choosing S&T or research (http;;1 /
www.thehindu .corn.1'news/ flties/Vflayawada;'jndaarfa^ as compared to no in Japan, 76 in Germany and Israel, 55 in USA, 46 in Korea and 8 in
China." Leaders in South Africa and Brazil cite similar statistics to show how they are likewise falling behind in the STEM race.
"The government responds either with money [for research] or, more recently, with visas to increase the number of STEM workers," Teitelbaum
says. "This continues for a number of years until the claims of a shortage turn out not to be true and a bust ensues." Students who graduate during
the bust, he says, are shocked to discover that "they can't find jobs, or they find jobs but not stable ones."
At the moment, we're in the alarm-heading-toward-boom part of the cycle. According to a recent report from the Government
Accountability Office, the U.S. government spends more than US S3 billion each year on 209 STEM-related initiatives
(http:;','w;\iv.gao.gov,'products.''GAO-i^-52QT) overseen by 13 federal agencies. That's about $100 for every U.S. student beyond primary"
school. In addition, major corporations are collectively spending millions to support STEM educational programs. And every U.S. state,
along with a host of public and private universities- high schools, middle schools, and even primary schools, has its own
STEM initiatives. The result is that many- people's fortunes are now tied to the STEM crisis, real or manufactured.

Predictions of STEM shortages are flawed.


Charette 13
Robert N. Charette - Contributing Editor for Risk Factor, a publication of IEEE the Institute of Electrical and Electronics
Engineers. Charette is the author of multiple books and numerous articles on the subjects of risk management, project and
program management, innovation, and entrepreneurship. A member of the IEEE for 35 years, Charette was a recipient of the
IEEE Computer Societys Golden Core Award in 2008. The STEM Crisis Is a Myth - Aug 30th 2013 -
http://www.k12accountability.org/resources/STEM-Education/The_STEM_Crisis_Is_a_Myth.pdf

And yet, alongside such dire projections, you'll also find reports suggesting just the opposite that there are more STEM
workers than suitable jobs. One study found, for example, that wages for U.S. workers in computer and math fields
have largely stagnated (http://1 www.epi.org/pubHcation/'pmiQ5-stem-labor-sh^ since 2000. Even as the Great Recession slowly
recedes, STEM workers at every stage of the career pipeline, from freshly minted grads to mid- and late-career
Ph.D.s, still struggle to find employment as many companies, including Boeing, IBM Oittp:/'/www.cra.com/news/data-
center/24015 68 85/fo and Symantec (http://www.mercurynews.com/husiness/ci 2^52499;'s>Tnantec-plans-layoffs-jommg-zynga-and-netapp)\
continue to lay off thousands of STEM workers.
A-to Gao ev solely assumes Sexual Orientation Discrimination

Not a take-out the Aff prevents a broader roll-back including a roll-back of protections related to sexual
orientation.

Conclusion of the article goes Aff

Gao 15
et al; Huasheng Gao - Associate Professor, Division of Banking & Finance, Nanyang Business School - Nanyang Business School - Nanyang
Technological University - Does Workplace Discrimination Impede Innovation? March - modified for language that may offend -
http://www3.ntu.edu.sg/home/hsgao/GaoZhang20150307.pdf

6. Conclusions
In this paper, we investigate the effect of workplace discrimination on business success from the perspective of innovation, and find that
workplace discrimination has a negative casual effect on corporate innovation. We exploit various exogenous shocks from state anti-
discrimination laws that prohibit discrimination based on sexual orientation and gender identity, and study the changes in corporate innovation
following these law changes. Using a difference-in-differences approach, we find a significant increase in firms' patents and patent citations
following the law changes, relative to firms in states that do not pass such laws. We further find that the impact of anti-discrimination laws on
corporate innovation is more pronounced when the firms previously did not have a pro-gay non-discrimination policy in place, when the state has
a large homosexual population, and when the firms rely more on human capital. Overall, our findings are consistent with the view that an equal
and inclusive workforce fosters creativity and innovation.
Our paper provides important implications not only for technology firms' hiring strategies, but also for public policies aimed at fostering
innovation. Our results suggest that policies aimed to promote equal employment can have real economic effects in terms of improving corporate
innovation. This finding is particularly timely and relevant because of the on-going consideration of federal legislation to ban sexual orientation
discrimination in the workplace (the Employment Non-Discrimination Act).
Lastly, although our paper focuses on discrimination against homosexuals (on the basis of sexual orientation) (for
identification purposes), the same economic mechanisms apply for other types of discrimination in the workplace , such as
discrimination on the basis of gender, race. ethnic background, age, etc. Examining the policies that aim to reduce these types
discrimination and create a more inclusive workplace could be an interesting area future research.
Agency Deference Backlines
Please note that there is an entire section on Econ and Hegemony backlines (in addition to the items under this
header).
Mechanics of the advantage backlines
2ac solvency
Curtailing deference is key to check Trumps executive power
Jeffrey Pojanowski 2-2, professor of law at the University of Notre Dame Law School, 2/2/17, The curveball in the
Gorsuch nomination, http://www.cnn.com/2017/02/02/opinions/curveball-in-gorsuch-nomination-pojanowski/
Much about Judge Neil Gorsuch's nomination and confirmation process will be familiar. The American public will get the standard pitches about
constitutional interpretation, civil rights, federalism, precedent and the rule of law. But we live in interesting times, and Gorsuch's
nomination comes with a curveball -- namely his skepticism of the longstanding doctrine that courts should defer to the
executive branch's interpretations of law.
Gorsuch has favored an approach to administrative law that would limit President Donald Trump's discretion and power .
Let me explain. Officials who answer to the president, such as the attorney general or the administrator of the Environmental Protection Agency,
have to interpret law all the time. When agencies issue regulations or decide whether parties have violated federal regulatory law, they often must
decide what federal statutes have to say on the matter. And when parties disagree with these agencies' decisions, they can challenge them in court.
A judicial doctrine known as Chevron deference, named after a 1984 Supreme Court case on the matter, governs how strictly a court should
review an agency's interpretation of law.
Under the Chevron doctrine, if the court finds the statute clear, the judicial interpretation governs regardless of the agency's opinion.
Crucially, however, if the court finds the statute unclear, it must defer to the agency's interpretation so long as it as a
reasonable one -- even if that reading is not what the court would have adopted on its own. The standard justification for Chevron deference is
that unclear legal cases turn on policy choices. Therefore, administrative agencies with political accountability and technical expertise should
make those choices, not unelected federal judges.
As a practical matter, Chevron deference can shift substantial power to the executive branch, and therefore the president.
The federal statutes that agencies administer are often not crystal clear, and Chevron dictates that close calls go to the government. This
includes changes to previous administrations' interpretations of those statutes. So long as the new interpretation is
also reasonable, Chevron teaches that the agency can depart from past practice.
Unlike lots of other areas of the law, debate over Chevron deference is not a neatly partisan affair. In fact, legal conservatives differ over whether
it is a good idea.
Enter Gorsuch: In 2016, he took the unusual step of issuing a separate concurring opinion criticizing Chevron. (As an
intermediate appellate judge, he could do little more than complain about the test the Supreme Court makes him apply.)
Chevron deference, he argued, requires courts to depart from their judicial duty to say what they believe the law is. This, Gorsuch contended,
confounds the separation of powers and allows "politicized decisionmakers to decide cases and controversies about the meaning of existing
laws."
Of particular interest these days is the fact that Gorsuch happened to offer this criticism in a case where the government
sought deference to its decision to exclude an immigrant from the United States. There, the government sought to apply
retroactively its new rule that an immigrant who entered the country unlawfully had to wait 10 years before he or she could apply for lawful
status.
The government's interpretation disagreed with judicial precedent holding that the law allowed re-entry sooner. Gorsuch bristled at the
notion of government lawyers brushing aside judicial decisions, and further held that the government could not reach back and
apply its new restrictive rule to conduct that occurred before that rule became final.
Gorsuch does not speak for all conservative legal thinkers, but he represents a camp that pushes back against the notion that hard questions of
legal interpretation boil down to policy preferences -- and thus should be decided by executive agencies rather than judges. Right or wrong, such
a rejection of Chevron could tilt the balance of power from the executive branch to the judiciary .
Think of Chief Justice John Roberts' anti-Chevron holding in King v. Burwell that the Supreme Court -- and not the IRS commissioner -- decides
whether federal exchanges operating in the states were valid under the Affordable Care Act. The Roberts court upheld the exchanges, but not
because the interpretive tie went to the government base runner. Without Chevron, the judicial umpire decides.
Imagine also Trump
administration decisions to adopt aggressively restrictive interpretations of the
immigration laws or to reverse Obama-era readings of environmental or labor statutes . In a world
without Chevron, the new administration offering a plausible interpretation cannot win if the courts think the best
reading of the legislation goes the other way .
All this adds a twist to Gorsuch's nomination. In picking him, Trump chose the short-lister most likely to bolster the judiciary's
claims over the executive branch in the power to say what the nation's regulatory law is. Presently, Justice Clarence Thomas
is the only active member of the Supreme Court to call for a reversal of Chevron, although the chief justice and Justices Samuel Alito and
Stephen Breyer at times have shown some interest in domesticating the doctrine. It would go too far to say that Gorsuch would shift the tide on
judicial deference, but he would add another thoughtful voice to the skeptical chorus.
In getting his way on the nomination, Trump may be less likely to get his way on the law . At a time when people
across the ideological spectrum have concerns about the stability and rule of law , Gorsuch's jurisprudence
may come as a welcome relief.
2ac at: congress makes impacts inev
Congress is irrelevant---administrative law is the linchpin of Trumps agenda, and it relies on judicial
deference to agencies
Jon Michaels 11-11, Professor of Law at the UCLA School of Law, 11/11/16, Administrative Checks and Balances
in the Trump Administration, https://www.justsecurity.org/34327/presidents-arent-foxhole-administrative-checks-
balances-trump-administration/
In the afterglow of the presidential election, that old sweater is looking pretty sharpand a good number of us are inquiring
into the health and pugnacity of Chuck Schumer, the new Democratic leader of the Senate . Hes our Joe DiMaggio and
Obi-Won Kenobi wrapped into one, as (at least half) our nation turns its lonely eyes to its only hope.
For better or worse, this isnt Schumers battle certainly not his alone. Indeed, its not only, or perhaps even principally, Madisons
original separation of powers that will sustain us amid calls for mass deportations, border walls, the targeting of Muslims, the dismantling of our
environmental policies, and the gutting of national health care.
First, the bad news. I say this isnt principally Schumers battle because
Congress is rarely the most important game in town.
The administrative state, that sprawling array of federal agencies, commissions, and bureaus, is the site of so much federal
action. From healthcare to climate change to student loans to government surveillance , agencies are at the center
of the action. Whats more, presidents have proven quite adept at using the administrative state to work around
congressional obstructionism. Indeed, what Elena Kagan calls presidential administration might be one of the two most important
developments in presidential governance over the past few decades. Starting with Ronald Reagan but really picking up during the Clinton and
Bush (43) years, presidential administration has been elevated to an art form under President Obama.
Obama has been explicit and unapologetic in his efforts to bypass a truculent Congress, directing agencies to design and
implement policies ordinarily (or at least preferentially) entrusted to Congress. Obama has instructed agency officials to effectuate
his Clean Power Plan , to more fully regulate gun ownership, and to act upon his deferred action plan involving the
non-deportation of undocumented children and families. In each of these instances Obama made clear that congressional
obstruction is no barrier. In fact, in 2013 he used his grandest stage, the annual State of the Union Address, to make clear his willingness to
bypass Congress. If Congress wont act soon I will. I will direct my Cabinet to come up with executive actions we can take, now and in the
future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources
of energy.
As you well know, the administrative state is vast and powerful . There is good reason to believe that many, if not most,
presidential priorities (of practically any political valence) can be advanced through those agencies which, over the years, have
acquired heaps of discretionary authority and benefitted from healthy doses of judicial deference . Just as Obama
bypassed McConnell, Trump will have no problem sidestepping Schumer, who doesnt even have the benefit of leading a majority caucus.
1ar at: congress inev
Current judicial trends narrowing deference are vital to block Trumps efforts at undermining Obama-era
regulations
F. William Brownell 1-5, Partner, Hunton & Williams, focuses on environmental litigation, regulation and
counseling, 1/5/17, The Supreme Court Takes on Agency DeferenceTrump Beware!,
https://www.huntonnickelreportblog.com/2017/01/the-supreme-court-takes-on-agency-deference-trump-beware/
Executive Branch agencies write vague rules. Then they give them meaning through interpretation. That meaning may change over time through
re-interpretation. Indeed, it is not hard to find examples of rules that meant one thing one day and the opposite the next. See, e.g., Perez v.
Mortgage Bankers Association, 135 S. Ct. 1199 (2015). This is a problem for regulated entities that face penalties for failure to comply.
Reflecting such concerns, the deference doctrine has eroded slowly over the past two decades, with pronounced critical
commentary from conservative Justices. In October 2016, the Supreme Court granted review in a case from the Fourth Circuit GG v.
Gloucester County School Board (cert. granted Oct. 28, 2016)where the court gave controlling weight to a staff interpretation of a
Department of Labor (DOL) regulation. In Gloucester County, the Court will have an opportunity to rein in a particularly aggressive use of
agency deference. Does this case presage more comprehensive review of the Courts deference jurisprudence? And what
does it portend for the Trump Administrations efforts to reverse Obama Administration regulatory
priorities?
The deference doctrine has been long in the making. Starting prior to enactment of the Administrative Procedure Act (APA) in 1945, the
judiciary had given agency interpretations of their regulations controlling weight unless plainly erroneous or inconsistent with the
regulation. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (announcing a standard that is often referred to as Seminole Rock
deference). On one hand, the deference doctrine recognizes that the expert agency responsible for writing a rule is best positioned to know
what it means. On the other hand, this doctrine presents a challenge when administrations change and new agency decision-
makers had no role in writing the rule. In such cases, original meaning may be lost (inadvertently or unapologetically) in the mists of
time.
From a statutory standpoint, we live in a post-APA world where the reviewing court not the agency shall interpret statutory
provisions and determine the meaning or applicability of the terms of agency actions. APA 706. This has led some to suggest that
uncritical deference to evolving agency interpretations is an abdication of judicial authority and contrary to
law .
Despite the APA, deference to an agencys interpretation of its own regulations has continued as the general rule . This
rule achieved perhaps its most expansive expression (ironically) in Justice Scalias opinion for a unanimous Court in Auer v. Robbins, 519 U.S.
452 (1997). In Auer, the Court addressed whether the employee plaintiffs had been compensated on a salary basis, and therefore were not
entitled to overtime pay under the Department of Labors Fair Labor Standards Act (FLSA) regulations. According to the Court, [t]he
Secretary of Labor, in an amicus brief filed at the request of the Court, interprets [the rule] to deny exempt status in this case. Because the
salary-basis test is a creature of the Secretarys own regulations, the Court continued, the Secretarys interpretation is, under our jurisprudence,
controlling unless plainly enormous or inconsistent with the regulation. Id. at 461.
Where regulatory language lacks precision, Auers plainly erroneous or inconsistent with regulation standard offers little in the way of a
practical barrier to changed interpretations. That Auers deference was announced in the course of litigation opens the door wide to regulatory
surprise orchestrated by agency counsel offering new theories of liability. Where an agency re-interprets a vague regulation to give
it new meaning, the regulated party that legitimately thought it was in compliance may learn by pronouncement of
counsel that it was not. Auer thus raises the specter of agencies making the law and enforcing it in the same proceeding. See John
Manning, 96 Columbia Law Review 612 (1996) (cataloging constitutional and other problems with the deference doctrine).
This is not a mere hypothetical. In Perez v. Mortgage Bankers Assn, the Court revisited the FLSA regulations: do they apply to mortgage-loan
officers? In 1999 and again in 2001, the Departments Wage and Hour Division issued opinions letters saying these officers were covered. Then,
in 2006, the Department reversed course they were not covered. This interpretation lasted for four years until 2010, when the Department
issued another opinion letter saying they were covered. According to the APA, a rule is an agency statement of future effect meant to
implement or prescribe law. 5 U.S.C. 551(4). But what is the law in this case? And what happens to regulated entities who relied on
what they thought the law was from 2006-2010?
In the environmental area (and this is, after all, an environmental blog), the vagaries of the deference doctrine were in play in EPAs Clean Air
Act new source review enforcement initiative, which applied regulations addressing when an existing plant becomes a new plant subject
to more stringent pollution control requirements. Two decades after the rules were issued, EPA filed a raft of law suits against companies that
thought they had been in compliance. In response, some courts gave EPA counsels regulatory interpretations controlling weight and found
violations of the rules. See, e.g., United States. v. Ohio Edison, 276 F. Supp. 2d 829 (S.D. OH 2003). Other courts looked at the same rules and
similar facts and found the rules meant exactly the opposite, finding no violations. See, e.g., United States v. Duke Energy, 278 F.Supp.2d
(M.D.N.C. 2003); United States v. Alabama Power Co., 372 F. Supp. 2d 1283 (N.D. Ala. 2005). How can a regulation simultaneously mean two
different things?
These deference problems have not gone unnoticed. Justice Thomas recently explained in his concurrence in Michigan v.
EPA, 135 S. Ct. 2699, 2712 (2015), that judicial deference creates tension with Article IIIs vesting clause, which vests
judicial power exclusively in Article III courts, and runs headlong into Article I, which vests [a]ll legislative
powers herein granted in Congress. It also deprives regulated parties of notice of their compliance obligations, raising due process
concerns. GE v. EPA, 53 F.3d 1324 (D.C. Cir. 1995).
The judiciary has responded to these problems in a variety of ways . In United States v. Mead Corp., 533 U.S. 218 (2001), for
example, the Supreme Court clarified that agency deference applies only when Congress delegated authority to the agency generally to make
rules carrying the force of law, and the agencys interpretation was promulgated in the exercise of that authority. More recently, in UARG v.
Court addressed an agency interpretation asserting an unheralded power to
EPA, 134 S. Ct. 2427 (2014), the
regulate a significant portion of the American economy , and found such an assertion of authority
must be the product of clear statutory authority (not ambiguity).
The D.C. Circuit the nations chief administrative law court has responded in its own fashion, for example, finding that due process prevents
an agency from holding a company responsible where the agencys interpretation is not clear on the face of its rules. GE v. EPA, 53 F.3d 1324
(D.C. Cir. 1995). And in a line of cases starting with Paralyzed Veterans of Am. v. DC Arena, LLP, 117 F.3d 579 (D.C. Cir. 1997), the D.C.
Circuit gave agencies only one bite at the interpretive apple: once an agency interprets a regulation, that is the
law and any change in interpretation must be accomplished prospectively through notice and current
rulemaking .
The D.C. Circuits Paralyzed Veterans doctrine, of course, was recently vacated by the Supreme Court in Perez v. Mortgage Bankers Assoc.
According to the Court, the APA provides that interpretative rules whether the first or the fifteenth interpretation are not subject to notice
and comment rulemaking. In their concurring opinions, however, Justices Thomas, Scalia, and Alito all recognized that the underlying problem
is Seminole Rock deference. As Justice Alito said, I await a case in which the validity of Seminole Rock may be explored through full briefing
and argument.
With GG v. Gloucester County School Board, the Supreme Court has taken a step closer to the case Justice Alito seeks. In Gloucester County,
the Fourth Circuit rejected the lower courts dismissal of a Title IX discrimination claim, based on DOLs interpretation of a regulation governing
separate bathroom facilities based on sex. This interpretation was announced in an unpublished staff letter written during the course of the
litigation. The Fourth Circuit found the regulation ambiguous and gave the unpublished staff interpretation controlling weight. Judge
Niemeyer dissented.
The first question presented for review was whether this Court [should] retain the Auer doctrine. Apparently, there are not four Justices who
feel that it is the time (or that the right case has been presented) to revisit the Courts deference jurisprudence. This issue therefore was not
accepted for review.
The Court, however, did accept two other issues for review:
2. If Auer is retained, should deference extend to an unpublished agency letter.
With or without deference to the agencys interpretation, should the Departments specific interpretation be given effect.
The Courts action suggests that, for the present, it will continue its cautious approach to cabining the deference doctrine. At a minimum, an
unpublished staff letter adopted in the context of the very dispute in which deference is sought should not be viewed as having the force of law,
entitling it to deference. A more robust examination of the deference doctrine, though, will have to await confirmation of a ninth Justice.
In the meantime, how might the continuing judicial debate over agency deference affect the new Administration? There is much talk of
Trump Administration will undoubtedly seek deference
new policies and changed positions, and the
for changes in policy based on new interpretations of regulations . It is equally certain that such
changes in position will be closely scrutinized by the courts . The recent trends in deference jurisprudence suggest
that new policy-driven interpretations will require careful justification through a formal processes , such as
rulemaking or adjudication.

Constraining deference enables state attorneys general to successfully block Trumps administrative law
agenda
David Dayen 12-6, contributor to The Nation, The Intercept, The American Prospect, etc., 12/6/16, The Most
Important Appointment Since the Election Wasnt Made by Trump, https://www.thenation.com/article/the-most-
important-appointment-since-the-election-wasnt-made-by-trump/
On Monday, the first day of the new legislative session in the unofficial capital of liberal America, California Assembly Speaker Anthony
Rendon was defiant in his opposition to Donald Trump. Unity must be separated from complicity, Rendon thundered. Californians do not
need healing. We need to fight.
The legislature kicked off that fight with a mostly symbolic resolution urging Trump to not pursue mass deportation strategies that one
lawmaker likened to ethnic cleansing. Other bills introduced Monday seek to fund grants for legal representation for immigrants facing
deportation, train public defenders in immigration cases, prohibit state agencies from delivering information that could be used to create a registry
of Muslim Americans, force any border wall in environmentally sensitive areas to obtain voter approval, and terminate contracts with privately
run immigrant detention facilities.
But despite the whirlwind of action, the leader of the state s resistance against Trump will possibly not work in the Capitol
rotunda but inthe states D epartment o f J ustice.
Last week, Governor Jerry Brown tapped Congressman Xavier Becerra for a ttorney g eneral, an appointment made necessary after current
AG Kamala Harris won election to the Senate. This may be the most vital appointment of the transition period, and it wasnt
even Trumps. The California a ttorney g eneral is well-positioned to thwart the conservative agenda, a model weve
seen in reverse throughout the Obama administration.
Former Texas a ttorney g eneral Greg Abbott, who rose to prominence in conservative circles through high-profile fights against the Obama
Administration, once described his workday as I go into the office, I sue the federal government, and then I go home. Overall, Texas has filed
46 separate lawsuits against the federal government since the beginning of Obamas presidency, often leading coalitions of other states
(and bearing the exorbitant costs, which smaller states cannot).
In just the last month, Abbotts successor, indicted securities fraudster Ken Paxton, challenged environmental protections to critical habitats for
endangered species, fought the Education Department rule on transgender bathrooms in public schools, and obtained an injunction on the
Department of Labors overtime rule, denying raises to millions of workers. Add to that fights on religious freedom, Internet regulations,
marriage equality, immigration executive orders, the EPA Clean Power plan, Obamacare
These lawsuits havent always succeededso far only seven cases have ended in a Texas victory, with 21 losses and the rest still
awaiting final actionbut
they have swallowed up significant time and energy and effectively provided an alternative
governing philosophy. And states have broad legal standing to bring cases of this type, giving attorneys general
unmatched power .
Could Californias attorney general do the same? Becerra, previously a member of the House Democratic leadership, will have some
opportunities and some hurdles. First of all, its a bit easier to challenge a regulatory advance than a regulatory rollback. With an advance, state
AGs can assert that the government has substantively violated the Constitution or federal statutes. With a rollback, theres less grounding for
substantive objections.
Procedural objections remain available, however. The A dministrative P rocedures A ct is the controlling statute for regulatory
alterations . So if a Trump federal agency killed an agency rule without timely notice or seeking public comment, that could
draw a challenge. Additionally, federal agencies must not promulgate rules found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. This allows plaintiffs to challenge the factual basis for agency
rule making .
In discrete cases, state prosecutors have other options. For example, the 2008 Supreme Court ruling in Massachusetts v. EPA committed the
government to taking steps to regulate greenhouse-gas emissions. If the Trump administration nullified Obamas Clean Power Plan, AGs could
argue that theyre shirking a statutory duty under the Clean Air Act. Other policies, like a Muslim registry, may run afoul of constitutional
religious-freedom protections. And if Trumps federal agencies choose to not enforce various policies, essentially repealing through neglect, state
AGs might have a window to argue the failure to comply with statute, if it harms their citizens.
Then there are state-specific policies that Trump might try to upend. As Becerra said in a conference call last week, California
right now is ahead of the country when it comes to clean energy , common-sense treatment of immigrants , real health
security and so much more. If you want to take on a forward-leaning state that is prepared to defend its rights and interests, then come
at us.
Indeed, decadesof conservative jurisprudence on federalism could give Becerra an upper hand in getting the federal
government to mind its own business. And the more conservatives push at thislike attempting to overturn
the Chevron deference that gives federal agencies wide latitude in interpreting congressional statutes the
more power Becerra and his AG colleagues will have . Judge-made doctrines developed to protect states rights
against progressive legislation can also be used to protect cities against Trumps conservative policies , wrote
Harvard law professor Noah Feldman recently at Bloomberg. Aint constitutional law grand?
Among the first fights will be on so-called sanctuary cities , which refuse to cooperate fully with federal immigration authorities.
Trump and allies in Congress have threatened to block millions of dollars in Community Development Block Grants (CDBGs)
for sanctuary cities. Becerra could argue in court that CDBGs have nothing to do with immigration policy and cannot be used to
punish cities for noncompliance with requests. Rulings against coercing states to into enforcing federal law will also make it difficult to deny
sanctuary cities funding of any kind.
Other fights loom. This fall, California joined seven other states by legalizing marijuana for recreational use; clashes
with the Justice Department on what is still a banned substance at the federal level could ensue. The states cap-and-trade
system for climate emissions and aggressive plan to mandate renewable sources of energy could be a target. A border wall
would have to be constructed in part on California soil.
Will Becerra enact an expansive pro-resistance agenda? Politically, there are incentives to go big . Most state political
observers view Becerra as a placeholder (Dave Jones, the popular two-term Insurance Commissioner, has an active campaign for attorney general
in 2018), perhaps for Dianne Feinsteins Senate seat in two years, when she will be 85 and presumably retiring. Nothing would cut through the
noise that defies political headlines in California more than repeatedly suing Trump. Theres also a model of action, not only from Texas but from
California in the George W. Bush Administration, which successfully blocked offshore oil leases in the Pacific.
But after hinting strongly in this direction in his initial post-selection remarks, yesterday he offered a more measured tone in a press conference
with Governor Brown. We wont shy away from representing and defending what we stand for as Californians, but were not out there to pick
fights, Becerra said.
While this could simply be a matter of affect rather than substance, it would be a grave mistake if Becerra proved cautious. Californians
thoroughly rejected Trump (by 4 million votes and counting) and expect vigorous action. California has some big-state allies in New
York and Illinois, but Becerras office has the resources and experience to fight Trump on multiple fronts . Picking
and choosing battles wont do when theres so much at stake.

Rolling back court deference to executive power is key to broadly constrain Trump
John Copeland Nagle 11-8, professor at the Notre Dame Law School, 11/8/16, What We Dont Want a President to
Do, http://www.nytimes.com/interactive/projects/cp/opinion/election-night-2016/what-we-dont-wanta-president-to-
do
There has been a robust debate about the increasingly bold executive actions taken by President Obama, and by President George W. Bush before
him, but we can all agree that unilateral presidential action will be a recipe for disaster with a president elected as the
lesser of two evils.
Unilateral presidential authority relies on three devices: executive orders (commands the president issues to other governmental
officials), executive agreements (which operate as substitutes for international treaties) and executive deference (where judges accept
an agencys view of the law). We need to limit all of them.
First, executive orders: These have morphed from mundane guidance for government departments into sweeping declarations that affect the
rights of millions of people. Mr. Bushs blocking of federally funded stem-cell research and Mr. Obamas order to grant temporary legal status to
millions of undocumented immigrants are cases in point.
Second, executive agreements: The Constitution was designed to ensure that international agreements must win the approval of two-thirds of
senators, but executive agreements allow the president to bypass the Senate, exploiting a blurry line between executive agreements and treaties. It
was this power that enabled Mr. Obama to sign the Paris climate change agreement and conclude the controversial deal on Irans nuclear
program.
Third, executive deference: According to the Constitution, it is for Congress to enact laws and for the president to
enforce them, but for several decades, courts have deferred to government agencies interpretation of old laws to
make new rules (subject only to judicial correction if the law clearly prohibited a new policy ). Thus the Supreme Court
deferred to the Reagan administrations regulation that prohibited abortion counseling by federally funded providers. Such deference may well
allow the E.P.A. to use the Clean Air Act, originally enacted to combat the smokestack pollution in the 1960s, to regulate greenhouse gas
emissions.
Whether one blames President Obama or Congress for the expansion of presidential powers, a new administration that relies on
unchecked executive authority could be especially dangerous. Would those who want to empower President Clinton
to reform immigration concede the same power to President Trump? Would those who look to President Trump to guarantee
Second Amendment rights allow the same powers over gun-ownership policy to President Clinton?
Congress has tried to correct some presidential actions, but the president can often use the veto power to block
change. Members of Congress must return to the historical practice of protecting the institution itself, rather than using it simply to further
partisan ends. The recent override of President Obamas veto of Sept. 11 compensation legislation illustrates how both parties can come together
to promote a shared goal.
If Congress fails to enforce its prerogatives, then it falls to the Supreme Court to define the limits on presidential
power . But the next president will set the direction of the court, so in coming confirmation hearings, senators must focus on how aggressively
any new member of the court will police the limits on presidential authority.
The election of an unpopular president is inevitable, but we can try to ensure that an unpopular president will do
less harm.
at: institutions
Institutions and informal checks and balances are already failing to restrain Trump---only tangible legal
restraints on his goals matter
Timothy Snyder 17, professor of history at Yale University, 2/7/17, We have at most a year to defend American
democracy, perhaps less, interviewed by Matthias Kolb,
http://international.sueddeutsche.de/post/157058066625/we-have-at-most-a-year-to-defend-american
SZ: Donald Trump has been president for three weeks. How would you describe his start?
Timothy Snyder: The first thing that we have to notice is that the institutions have not thus far restrained him. He never
took them seriously, acts as if they dont exist, and clearly wishes they didnt. The story that Americans have told
themselves from the moment he declared his candidacy for president, was that one institution or another would defeat him or at
least change his behavior he wont get the nomination; if he gets the nomination, he will be a normal Republican; he will get defeated in
the general election; if he wins the presidency will mature him (that was what Obama said). I never thought any of that was
true. He doesnt seem to care about the institutions and the laws except insofar as they appear as barriers to the goal
of permanent kleptocratic authoritarianism and immediate personal gratification. It is all about him all of time, it is not about the
citizens and our political traditions.
dereg inev absent plan
Trump will push the limits on administrative power to deregulate the financial industry
Christina Pazzanese 11-23, two decades of experience as a print and digital journalist for both consumer and trade
press, 11/23/16, Trump and the law, http://news.harvard.edu/gazette/story/2016/11/trump-and-the-law/
Four major signposts during the first 100 days will show whether the Trump administration will transform executive
authority or not , said Cass Sunstein, the Robert Walmsley University Professor at Harvard.
First, how does the Trump administration handle ostensibly independent regulatory commissions such as the S ecurity and
E xchange C ommission or the Federal Reserve? Trump, who has called for loosening of financial reg ulation s, could try to
exert authority over such entities. That would be an extremely bold exercise of presidential authority , one that would
create logistical and legal problems and could even present some difficulties if agencies refused to comply with his directives, said Sunstein, who
served as administrator of the White House Office of Information and Regulatory Affairs from 2009 to 2012.
2ac - deference key
Trumps deregulation agenda will inevitably stall in Congress---the only question is how much damage he can
do through executive action
Ian McKendry 1-20, writer for National Mortgage News, 1/20/17, Why Trump Still Faces an Uphill Climb to Ease
Regulations, http://www.nationalmortgagenews.com/news/compliance-regulation/why-trump-still-faces-an-uphill-
climb-to-ease-regulations-1095325-1.html
The financial services industry has high hopes that the Trump administration will usher in a new era of less regulation
and economic growth, but President Trump, who was sworn in as the 45th president Friday, faces tough challenges to reshape
financial policy .
While Republicans control both chambers of Congress, their majority remains slim in the Senate and the sea
change of financial regulation ushered in over the last eight years of the Obama administration will be hard to overcome.
Trump has said deregulation will be one of his chief strategies to spur economic growth, but how he specifically plans to ease
regulations still remains unclear and will likely be directed by lieutenants in his administration.
"It is hard to know what Trump's biggest challenge on financial regulatory policy is because the specifics of what he wants to do are not clear,"
said Justin Schardin, director of the financial regulatory reform initiative at the Bipartisan Policy Center.
Yet if his tone of immediacy expressed in his inaugural address extends to financial policy, his administration may try to act fast in reversing
Obama's measures.
"We will no longer accept politicians who are all talk and no action, constantly complaining but never doing anything about it. Now arrives the
hour of action," said Trump in his inauguration speech Friday.
Here are specific challenges he will face to enacting financial services reforms:
An Emboldened Democratic Minority
While Trump has the advantage of the House and Senate both in Republican control, the GOP Senate majority narrowed in the election.
Republicans now hold just a 52-to-48 advantage, far from the 60-vote advantage they need to halt a filibuster.
This means Trump and congressional Republicans would need to sway a sizable handful of Democrats on reforms requiring
legislative approval , including steps to weaken the Consumer Financial Protection Bureau, Financial Stability Oversight Council and other
conventions established by the Dodd-Frank Act.
Democrats gave a preview of their willingness to stand up to the new administration in the Senate confirmation
hearing for Treasury Secretary-designate Steven Mnuchin, when members of the Finance Committee hit Mnuchin hard over the foreclosure
activity at OneWest Bank, which he ran, offshore accounts and other issues.
" Where possible we expect Trump to attempt to legislate lifting of regulations that have mandates.
Only the Senate 60-vote rule is a barrier to that effort," wrote David Kotok, chief investment officer at Cumberland Advisors, in a
market commentary piece.
A Democratic minority resistant to Trump's legislative initiatives increases the significance of his
appointments . Under Senate rules spearheaded by the Democrats when they controlled the Senate, confirmations require only a majority
of senators' support, leaving the minority without the option to filibuster. Republicans could also try to steer clear of the 60-vote threshold by
passing reforms through budget resolutions that only require a majority.
"Nominees are going to be the most important way he can influence policy ," said Schardin. "His appointees
will probably control most of the financial regulatory agencies within a year and they will be able to make major
policy changes without Congress."
Backlines Econ specific
2ac - Dereg -> collapse
Deregulation collapses the economy
Mark Thoma 1-13, macroeconomist and time-series econometrician at the University of Oregon, 1/13/17,
Commentary: Making America's risk of a financial crisis great again, http://www.cbsnews.com/news/making-
americas-risk-of-a-financial-crisis-great-again/
In the decades prior to the financial crisis, the U.S. underwent a period of financial deregulation under the assumption
that market forces would prevent financial institutions from taking excessive risk. In particular, the shadow banking system --
financial institutions that dont operate as traditional banks -- was lightly regulated.
However, as Alan Greenspan admitted in testimony on Capital Hill after the financial crisis, that assumption turned out to be wrong. The
traditional banking sector, which is highly regulated, weathered the storm fairly well, but the shadow banking system came crashing down -- and
brought the economy with it.
Nevertheless, Republicans are determined to roll back financial regulation , particularly measures implemented under the
Dodd-Frank financial reform package passed in the aftermath of the financial crisis. I believe thats a mistake.
Deregulation would increase the risk of another financial crisis and, should a crisis occur, make it more likely that
the consequences for the nations economy would be severe . If anything, regulation of the financial sector should be
strengthened rather than dismantled, as promised on Donald Trumps transition website.
Unfortunately, its difficult to know for sure if tighter financial regulations have been successful. For one, the conditions that existed during the
financial crisis havent been repeated, so new regulations such as forcing systemically important banks to have living wills designed to
prevent government financial bailouts havent been tested yet.
The events of 2008 may have to fade from collective memory before another economically destructive financial bubble threatens to explode.
But beyond that, other regulations imposed under Dodd-Frank are designed to stop bubbles and other problems from starting
in the first place. If theyre successful at preventing a bubble and things continue normally, how will we know? And if theyre unsuccessful, it
could be many years before the problems surface.
We can argue about whether particular regulations are good or bad theoretically, and that has value. But its far too soon for an empirical
assessment of whether Dodd-Frank has worked (and since financial crises can be decades apart, it could be a long, long time before that changes).
What we can do is assess the risks associated with dismantling Dodd-Frank. Two questions need answering. First, is Dodd-Frank working to
reduce the risk of another crisis? As just discussed, that question cant be answered empirically at this point. But I think most people would agree
that it has reduced risk to some extent, even while disagreeing about how much.
That leads to the second question. Assuming Dodd-Frank does reduce risk, are the benefits of the regulations it imposes greater than the costs?
Lets begin with the benefits. As the Great Recession illustrates, financial crises can impose very large costs on the economy and
disrupt the lives of untold millions of people who had nothing at all to do with causing the economic problems.
And the costs go beyond the hit to GDP and other numbers used to characterize the economy. Recession have large impacts on individuals,
families and their hopes for the future (not to mention things like the high levels of stress). These social and psychological costs cannot be
ignored.
The benefit of financial regulation is that it reduces the chance of this happening again, and it insulates the economy if a crisis occurs anyway
despite our best efforts to prevent it.
On the cost side, the worry among those pushing for deregulation is that Dodd-Frank will slow economic growth (though some would argue its
more about giving powerful interests in the financial industry more opportunities to capture wealth). Its possible that regulation has reduced
growth, but if so, I dont think the impact has been very large. Plus, growth fueled by excessive risk-taking ought to be avoided in any case.
Financial regulation can be viewed as insurance against the chance of another crisis , and much of the effort in Dodd-Frank is
devoted to fixing the problems that occurred in the shadow banking system. But like any insurance, it has to be paid for. In this case, the cost of
insuring against another financial crisis is a small reduction in economic growth -- if its affected at all. In my view, paying this cost is well worth
the benefits it brings.
Reducing financial regulation isnt going to create the economic growth miracle that President-elect Trump has promised, but
leaving it in place could protect the millions and millions of people who might have their lives upset -- or ruined -- if
another severe financial crisis should strike again.
2ac - lashout
Economic decline under Trump is particularly likely to trigger diversionary war---their defense only applies
to normal, non-awful Presidents
Dennis M. Foster 12-19, professor of international studies and political science at the Virginia Military Institute,
12/19/16, Would President Trump go to war to divert attention from problems at home?,
http://inhomelandsecurity.com/would-president-trump-go-to-war-to-divert-attention-from-problems-at-home/
If the U.S. economy tanks, should we expect Donald Trump to engage in a diversionary war? Since the age of
Machiavelli, analysts have expected world leaders to launch international conflicts to deflect popular attention away from problems at home. By
stirring up feelings of patriotism, leaders might escape the political costs of scandal, unpopularity or a poorly performing economy.
One often-cited example of diversionary war in modern times is Argentinas 1982 invasion of the Falklands, which several (though not all)
political scientists attribute to the juntas desire to divert the peoples attention from a disastrous economy.
In a 2014 article, Jonathan Keller and I argued that whether U.S. presidents engage in diversionary conflicts depends in part on
their psychological traits how they frame the world, process information and develop plans of action. Certain traits predispose
leaders to more belligerent behavior.
Do words translate into foreign policy action?
One way to identify these traits is content analyses of leaders rhetoric. The more leaders use certain types of verbal constructs, the more likely
they are to possess traits that lead them to use military force.
For one, conceptually simplistic leaders view the world in black and white terms; they develop unsophisticated
solutions to problems and are largely insensitive to risks . Similarly, distrustful leaders tend to exaggerate threats and rely
on aggression to deal with threats. Distrustful leaders typically favor military action and are confident in their ability to wield it
effectively.
Thus, when faced with politically damaging problems that are hard to solve such as a faltering economy
leaders who are both distrustful and simplistic are less likely to put together complex, direct responses . Instead, they
develop simplistic but risky solutions that divert popular attention from the problem, utilizing the tools with which they are
most comfortable and confident ( military force ).
Based on our analysis of the rhetoric of previous U.S. presidents, we found that presidents whose language appeared more simplistic and
distrustful, such as Harry Truman, Dwight Eisenhower and George W. Bush, were more likely to use force abroad in times of rising inflation and
unemployment. By contrast, John F. Kennedy and Bill Clinton, whose rhetoric pegged them as more complex and trusting, were less likely to do
so.
What about Donald Trump?
Since Donald Trumps election, many commentators have expressed concern about how he will react to new challenges and whether he might
make quick recourse to military action. For example, the Guardians George Monbiot has argued that political realities will stymie Trumps
agenda, especially his promises regarding the economy. Then, rather than risk disappointing his base, Trump might try to rally public opinion to
his side via military action.
I sampled Trumps campaign rhetoric, analyzing 71,446 words across 24 events from January 2015 to December 2016. Using a program for
measuring leadership traits in rhetoric, I estimated what Trumps words may tell us about his level of distrust and conceptual complexity. The
graph below shows Trumps level of distrust compared to previous presidents.
As a candidate, Trump also scored second-lowest among presidents in conceptual complexity. Compared to earlier presidents, he used more
words and phrases that indicate less willingness to see multiple dimensions or ambiguities in the decision-making environment. These include
words and phrases like absolutely, greatest and without a doubt.
A possible implication for military action
I took these data on Trump and plugged them into the statistical model that we developed to predict major uses of
force by the United States from 1953 to 2000. For a president of average distrust and conceptual complexity, an
economic downturn only weakly predicts an increase in the use of force .
But the model would predict that a president with Trumps numbers would respond to even a minor economic
downturn with an increase in the use of force . For example, were the misery index (aggregate inflation and
unemployment) equal to 12 about where it stood in October 2011 the model predicts a president with Trumps psychological traits would
initiate more than one major conflict per quarter.
Of course, predictions from such a model come with a lot of uncertainty. By necessity, any measures of a presidents traits are imperfect. And we
do not know whether there will be an economic downturn. Moreover, campaigning is not governing, and the responsibilities of the Oval Office
might moderate Donald Trump. The psychologist Philip Tetlock has found that presidents often become more conceptually complex once they
enter office.
Nevertheless, this analysis suggests some cause for concern about the international ramifications of an economic
downturn with a President Trump in the White House.
Backlines Hegemony Specific
Heg i/l - gridlock
Unchecked domestic gridlock collapses the foundations of U.S. hegemony and credibility
Richard N. Haass 13, President, Council on Foreign Relations, 5/17/13, What is the effect of U.S. domestic
political gridlock on international relations?, http://www.cfr.org/united-states/effect-us-domestic-political-gridlock-
international-relations/p30725
There is a well-known adage that politics stops at the water's edge, but this tends to be more hope than reality. American history is filled
with examples in which political disagreement at home has made it difficult for the U nited S tates to act, much less
lead , abroad.
Division within Congress or between the legislative and executive branches can make it impossible for individuals to be
placed in senior positions. Such divisions can also make it impossible to conclude treaties, appropriate funds for
foreign assistance , or pass specific reforms, such as the current proposed reform for immigration policy. A lack of consensus also
can undermine investment in the foundations of American power , from resources for defense and diplomacy to
education and infrastructure .
Gridlock at home can also work against the ability of the United States to set an example that other societies will want to
emulate. And it makes the United States less predictable , something that can unnerve allies and others who depend on this
country, and embolden adversaries. All this tends to contribute to global disorder one reason I titled my new book Foreign
Policy Begins at Home.
Heg i/l - overreach
Broadly, Trumpian overreach through executive orders crushes global U.S. diplomatic standing and
credibility
Marcela Aguirre 2-6, M.A. in International Affairs from Boston University, 2/6/17, In Free Fall: Americas Soft
Power in Trump Era, https://chargedaffairs.org/in-free-fall-americas-soft-power-in-trump-era/
Since taking the presidency on January 20th, Trump has signed executive orders that have done more harm than good in the
short period of time that theyve been enacted. These newly signed orders have not only enraged American citizens but have also
enraged and shocked the international community hurting perceptions of the U.S. around the world .
Mexicans, for example, recently pressured President Enrique Pea Nieto to cancel his upcoming trip to Washington to meet with Mr. Trump.
They did so not only because they think the wall on the U.S.-Mexico border is an idiotic idea, but because they believe that had Pea Nieto met
with Trump, then he would have further bullied and stomped all over Mexico, further sending the country into a downward spiral. The last thing
they want is for their president to cave into Trump after what he has said and done to the Mexican people. Currently, perceptions of the U.S.
in Mexico are at an all-time lowjust ask the piata sellers.
Similarly, Muslims across the world are also frustrated and upset with Trump. His ban on immigrants from seven Muslim-
majority countries and Syrian refugees is sending the wrong message to people across the Arab world that non-Christians
arent welcome to the U.S. By further alienating Muslims, Trump is playing into the narrative of extremist groups like ISIS that the U.S. is
waging a war against all Muslims. This in turn could result in more people joining the terrorist group to help wage a war against America and its
allies.
The recent ban has also sparked the ire of British citizens. Over a million (and counting) have signed a petition asking Prime Minister Theresa
May to cancel Mr. Trumps upcoming visit to the United Kingdom. The British government, however, has been reluctant to comment on the ban.
For now, thats a good thing. The last thing the U.S. needs is losing its special friend and ally.
As part of his America First strategy, Trump is signing orders that are supposed to make America great again.
However, hes weakening the U.S. presence in the world . By disengaging from the world and loosening relations
with its closest allies, Trump is signaling that the U.S. needs no one and that he alone can fix its problems. This, of course, is
dangerous. When a major superpower isolates itself from the world, it in turn looses its standing as the global leader . Is
that really what this new administration wants? Do we really want to lose allies and cozy up to tyrants like Russias Putin? With this kind of
isolationist mentality, both are national security and economic interests are at risk. At this pace, our ranking as most loved country will drop dead
bottom. Remember 2003 and the Iraq War?
When President Obama first took office in 2009, Americas image abroad was pretty dismal. However, over the past eight years, President
Obama did a lot to repair American perceptions abroad through a more pragmatic and amicable foreign policy that focused more on
soft power then that of the previous administration. Soft powera term coined by Harvard professor Joseph Nyeis a countrys ability to
persuade foreign audiences through diplomatic, economic, and cultural means. In other words, its a way to influence the views of foreign publics
through non-coercion. From the renewal of friendly relations with Cuba to the signing of the Paris Climate Agreement to the TPP and the Iran
Deal, it was clear that soft power was at the core of the Obama administrations foreign policy. It is no wonder the U.S. took the first spot in
Portlands 2016 Soft Power 30 reporta global ranking of soft power around the world. In 2015, the U.K. took the top spot, and the U.S. was
ranked third. Might Brexit have caused the U.K. to drop? Perhaps.
Its hard to guess how far the U.S. will drop in rankings on the Soft Power 30 report this year, but I have no doubt it will. However, what is more
relevant is that the U.S. cant afford to have the international community against it because without them, our national
interests are at stake. The world is watching Trumps every move , and with every mishap and misstep, theyll be
quick to judge America as a whole . In this globalized, connected world the U.S. cant afford to lose its influence in the
world .

Decline in U.S. standing caused by Trump executive policies triggers U.S. lashout and global war
Sasha Abramsky 17, freelance journalist published in The Nation, The Atlantic Monthly, New York magazine, the
American Prospect, Salon, Slate, the New Yorker online, the Los Angeles Weekly, The Village Voice, the Daily
Beast, and Rolling Stone, 1/24/17, Under Trump, American democracy will change with the whole world at
stake, http://www.newstatesman.com/world/2017/01/under-trump-american-democracy-will-change-whole-world-
stake
Nor, on the international stage, is it likely that this troupe of political novices will be able to control the forces of
resentment they are unleashing. Trumps cabinet is full of Islamophobes who believe that the entire Muslim world is now Americas
enemy. It is dominated by China-haters and climate change deniers . By the time Trump assumes the presidency, he will have done
an almighty job of pissing off swaths of the worlds population.
The optimistic scenario is that the world turns its back on an inward-looking America, getting on with the serious business of international affairs
while the pre-eminent superpower throws a four-to-eight-year tantrum. It is more likely, however, that there
will be a scramble for
influence as US soft power wanes and other powerful countries and non-state organisations seek to fill a vacuum
created by the dearth of sensible American voices and policies. Such players could range from economic powerhouses such
as China and Germany, seeking, or being forced to accept, a bigger military and geopolitical role, to resurgent powers such
as Russia as well as non-state actors ranging from terrorist entities such as Isis to techno-anarchist groups such as WikiLeaks.
As Americas image mutates, they will have a growing opportunity either to sow instability or to reshape regions of
the world in their own image. The nightmare scenario is that Trump, relying on his instincts in place of the counsel of experts,
seeks to shore up Americas declining influence through spasmodic demonstrations of military power bullying and
threatening one country after another, much as fascist regimes did in the 1930s. The consequences could be disastrous: US
nationalism unleashed could plunge the world into conflict .
Thus we hover on the edge of a catastrophe : a great democracy that has come to be controlled by demagogues, ready to
pounce at the slightest provocation, itching for an excuse to implement emergency measures against Muslims and others, convinced that its
military might will cow the rest of the world into toeing the Trumpian line.
A-to Neg impact turns vs. Deference
vs. Patents Turn
2ac impact defense
ABR wont get close to extinction, intervening actors solve it, their internal link cant
Ed Cara 17, science writer for The Atlantic, Newsweek, and Vocativ, 1/27/17, The Attack Of The Superbugs,
http://www.vocativ.com/394419/attack-of-the-superbugs/
Antib iotic-r esistant infections kill at least 700,000 people worldwide a year right now, according to an exhaustive report commissioned
by the UK in 2014, and without any substantial medical breakthroughs or policy changes that slow down resistance, they may claim some 10
million deaths annually by 2050 eclipsing cancer in general as a leading cause. These deaths largely wont come
from pan-resistant infections, just tougher ones. A preventable death there, a preventable death here.
Leaving that aside, antibiotics, along with proper sanitation and nutrition, gird our entire way of living. Most every invasive surgery, pregnancy,
organ transplant and chemotherapy session we go through will become riskier. Other diseases like HIV, malaria or influenza will become
deadlier, since bacteria often exploit the opening in our immune system they leave behind. And already precarious populations like those living
with cystic fibrosis, prisoners, and the poor will lose years off their lives.
For all the warranted gloom, though, Farewell does think there are reasons to be hopeful. I dont think we are doing enough, but the
scientific community along with many governmental and private foundations are very actively involved in finding not
only new antibiotics, but new solutions to this problem, she said. Theres been a noticeable change in attitude and
increased urgency surrounding antibiotic resistance, she said, one that she hadnt seen even five years ago, let alone twenty.
Until recently, that attitude change could be seen from places as high up as the U.S. federal government. In 2014, former President Obama
issued an executive order aimed at addressing antibiotic resistance , the first real acknowledgement of the problem from an
administration, devoting funding and outlining a national action for combatting resistance. Through its federal agencies, the administration
pushed to reduce antibiotic use on farms and encouraged doctors to stop using them in excess.
There has been a lot of work done the last couple of years, much of it spurned by [Obamas] National Action Plan, said Dr. David Hyun,
a senior officer for Pew Charitable Trusts Antibiotic Resistance Project. The CDC, in particular, has used its funding to open up regional labs
that allow them to better detect and respond to antibiotic-resistant outbreaks like the Nevada case, he said. They ultimately hope to create an
expansive surveillance system that can easily keep track of resistance rates on a national, state and regional level. A parallel system also exists for
monitoring resistance in the food chain, shepherded by the CDC and the U.S. Department of Agriculture.
In fact, it was this sort of cooperation between national and local health agencies that enabled Nevada doctors to stop the
worst from happening, said Dr. Lei Chen. The swift identification of a possible CRE strain by the hospital, coupled with the womans
medical history, led to a precautionary quarantine, while also prompting Chens public health department and eventually the CDC into action.
And it may help prevent future cases from spilling into the public . According to Chen, the CDC has allocated funding this year to
all of Nevadas state public health departments so they can better detect CRE and other dangerous resistant strains.
Under the Trump administration, theres no telling how these small victories will hold up or whether they will advance. All references to
antibiotics once found on the Whitehouse.gov site have been removed, including a link to the Obama administrations national action plan, and
the fact that theyre already tried to bar USDA scientists from discussing their work with the public while stripping funding from other public
health agencies isnt encouraging.
Even with the best public policy , however, theres no clear light at the end of the tunnel. Antibiotic resistance
has gradually been worsening, even within the last 15 to 20 years, when superbugs like methicillin-resistant Staphylococcus aureus
(MRSA) first became widely known, said Hyun. The effort needed to develop new drugs has been in short supply, hamstrung by
pharmaceutical companies inability to recoup the costs of bringing new antibiotics to market. Thats because, unlike the
latest heart medication, any new antibiotics will have to be treated like the last drops of water during a drought, used as little as possible the
exact opposite way to make money off a new product. Yet, much like climate change, the financial toll of not doing anything will total in the
trillions years down the road. And it already numbers in the billions now, according to the CDC.
Of course, we need bacteria to survive. And most need or pay no mind to us in return. Even pan-resistant bacteria dont really mean harm. Some
have been found in perfectly healthy people, a fact thatll either comfort you or keep you awake at night, only causing problems when our
immune system wavers. Theres no army of sentient E. coli that will rise up and someday overthrow the
human race .
But barring the calvary showing up, a new fear of ours will learn to settle in, almost unnoticed. Itll creep in when we pick our heads up from a
nasty fall that scrapes our skin open or breaks our bones; when we wave goodbye to our loved ones before they enter an operating room, or when
we cradle our newborns into a world teeming with the living infinitesimal, wishing there was still a way to shield them from it as our parents once
could for us. A fear of naked vulnerability.
The antibiotic apocalypse will be gentle , if it fully arrives, but it wont be any less devastating to the human spirit.
2ac burnout
Burnout
York 14 {Ian, head of the Influenza Molecular Virology and Vaccines team in the Immunology and Pathogenesis
Branch, Influenza Division at the CDC, former assistant professor in immunology/virology/molecular biology (MSU),
former RA Professor in antiviral and antitumor immunity (UMass Medical School), Research Fellow (Harvard),
Ph.D., Virology (McMaster), M.Sc., Immunology (Guelph), Why Don't Diseases Completely Wipe Out Species?
6/4, http://www.quora.com/Why-dont-diseases-completely-wipe-out-species#THUR}
But mostly diseases don't drive species extinct . There are several reasons for that. For one, the most dangerous diseases are
those that spread from one individual to another. If the disease is highly lethal, then the population drops, and it
becomes less likely that individuals will contact each other during the infectious phase. Highly contagious diseases tend
to burn themselves out that way. Probably the main reason is variation. Within the host and the pathogen population
there will be a wide range of variants. Some hosts may be naturally resistant. Some pathogens will be less virulent. And either
alone or in combination, you end up with infected individuals who survive. We see this in HIV, for example. There is a
small fraction of humans who are naturally resistant or altogether immune to HIV, either because of their CCR5 allele or their MHC Class I
type. And there are a handful of people who were infected with defective versions of HIV that didn't progress to disease. We

can see indications of this sort of thing happening in the past, because our genomes contain many instances of pathogen
resistance genes that have spread through the whole population. Those all started off as rare mutations that conferred a strong
selection advantage to the carriers, meaning that the specific infectious diseases were serious threats to the species.
2ac i/l defense
PTO deference impossible - legislation
Wen Xue 16, J.D. Class of 2016, New York University School of Law, Spring 2016, ARTICLE: OBVIOUSNESS
GUIDANCE AT THE PTO, New York University Journal of Intellectual Property & Entertainment Law, 5 N.Y.U.
J. of Intell. Prop. & Ent. Law 306
On the other hand, the PTO refrains from making rules because its hands are bound . Under administrative law, the PTO
has three potential ways of making substantive rules: informal rulemaking (which is a form of legislative rulemaking) under
553 of the Administrative Procedure Act, nonlegislative rulemaking under the exceptions in 553(b)(3)(A), and announcing rules in
adjudications. However, the PTO lacks authority to make legislative rules , and its ability to make nonlegislative rules and
conduct adjudications is also subject to limitations.
A. The PTO's Power and Authority
The PTO lacks authority to use informal rulemaking to make substantive rules. As an executive agency, the PTO
must act within its congressionally delegated authority . The Patent Act authorizes the PTO to "establish
regulations . . . to govern the conduct of proceedings in the [PTO]." n75 The Federal Circuit interpreted this statutory
language to mean a delegated authority to make procedural rules about its proceedings, but not substantive rules on
patent policy . n76 Thus the PTO is stripped of one of the most powerful agency tools, informal rulemaking (a type of
legislative rulemaking), to provide its interpretation of substantive patentability standard .
Because the agency does not hold the power in saying what the law is , its many actions will not
receive Chevron deference , a high level of deference that courts give to executive agencies' interpretation
of statutory language . n77 The PTO only has the statutorily granted authority to issue procedural rules
governing patent examination at the PTO, but not substantive rules regarding patentability issues such as obviousness. n78
2ac - turn
deference to Trump props up the power of anti-science turns disease
Michael Hiltzik 17, LA Times reporter, 1/26/17, Column Trump is at war with science and knowledge, and that
should terrify you, http://www.latimes.com/business/hiltzik/la-fi-hiltzik-trump-information-20170125-story.html
This is week one of the Trump administration, and the signs are piling up that the new presidents distaste for distasteful facts will
lead to, well, fewer facts .
Among the first agencies reported to face an information lockdown were the departments of Agriculture and the Interior. Scientists and other
staffers at USDAs Agricultural Research Service, its main scientific arm, were told Monday to stop releasing any public-facing documents,
including news releases, photos, fact sheets, news feeds, and social media content ... until further notice, according to an internal email published
by BuzzFeed. Following a public uproar, the ban was rescinded a day later.
Interiors National Park Service apparently got into trouble for retweeting photos intimating that the crowd at Trumps inauguration was smaller
than that of President Obama, an assertion that drew tantrums from Trump and his press secretary, Sean Spicer. Interior headquarters ordered all
agency bureaus to immediately cease use of government Twitter accounts until further notice, according to a memo posted by Gizmodo. The
expectation is that there will be absolutely no posts to Twitter.
Interiors National Park Service apparently got into trouble for retweeting photos intimating that the crowd at Trumps inauguration was smaller
than that of President Obama, an assertion that drew tantrums from Trump and his press secretary, Sean Spicer. Interior headquarters ordered all
agency bureaus to immediately cease use of government Twitter accounts until further notice, according to a memo posted by Gizmodo. The
expectation is that there will be absolutely no posts to Twitter.
The park services Twitter access was restored after a day of silence, with a message expressing regret for the mistaken retweets of
inauguration crowd photos.
Many scientists view the apparent crackdown as a reflection of President Trumps anti-science mentality, reflected partially in his
depiction of climate change as a Chinese hoax during his election campaign. He also has given credence to a decisively
debunked link between childhood vaccines and autism, and sought through his transition team to collect the names of Department of
Energy scientists working on climate change. The latter move prompted outgoing Energy Secretary Ernest Moniz to take steps to protect the
integrity of DOE research and staff from political interference before the new administration took over.
Theres a sense of the new administration that it feels that scientists who work for the government are not its allies in
presenting its political agenda, says UC Berkeley biologist Michael Eisen.
Referring to reports that scientists at the National Institutes of Health and other agencies of the Department of Health and Human Services have
been instructed to not send any correspondence to public officials, presumably even to members of Congress, Eisen added: I dont see a
charitable way of looking at this, even if its a stopgap measure.
One of the more stringent directives involves the Environmental Protection Agency. The EPA is firmly in the Trump White Houses crosshairs,
in part because its focus includes battling climate change, and because its regulations tend to irk oil and gas companies, which Trump plainly
favors. His nominee to head the agency, Oklahoma Atty. Gen. Scott Pruitt, is a climate change skeptic and a friend of the fossil-fuels industry.
Directives issued to EPA staff, according to the Huffington Post, include bans on press releases, blog posts, social media posts, new posting to
agency websites and messages to online listservs only crucial messages are to be sent to the latter, as messages can be shared broadly and end
up in the press, according to an internal communication published by the Huffington Post.
Reuters reported separately that the White House had ordered the EPA to delete from its website a page devoted to climate change. The page was
still online as recently as Wednesday evening.
The last tweets from the EPAs Twitter account, @EPA, appeared Jan. 19, the day before Trumps inauguration, when there were five of them,
including a report on actions taken under the Clean Air Act during the Obama administration. That was more or less the standard for the account,
which seldom issued fewer than two tweets a day covering EPA regulations, tips for household energy saving and press releases. Since then,
nothing.
The extent to which the clampdown on public information emanates directly from the White House is unclear. Some may reflect self-censorship
by agency officials wary of provoking their new bosses before the new administration is even in place. Some of the offending communications
may have been unauthorized; USDA says its directive was sent out prematurely by a research service official and hadnt been cleared by
headquarters, and the National Park Service claims the Badlands tweets were issued by a former employee with access to the parks account.
Some may also reflect a new administrations natural desire to call a halt to policymaking and public statements until it can get its arms around its
new responsibilities. But there are reports that the Trump White House is putting holds on public statements, policies and
grant issuance to a greater degree than its predecessors.
Indeed, the federal Office of Special Counsel, which administers the federal whistle-blower law, felt it necessary to remind government
employees Wednesday that blanket gag orders applied to them are illegal. Under the anti-gag provision of the 2012 Whistleblower Protection
Enhancement Act, it said, nondisclosure agreements and gag orders must include required language that informs employees that their statutory
right to blow the whistle supersedes the terms and conditions of the nondisclosure agreement or policy.
Many public employees, especially scientists working on climate change and other politically sensitive topics, are
fearful that their work will conflict with their new bosses ideologies . Agriculture Secretary-designate Sonny Perdue, a
former governor of Georgia, ridiculed climate science in a 2014 essay and treated it as a political ploy.
Climate change, were told, is responsible for heavy rains and drought alike, Perdue wrote. Whether temperatures are unseasonably low or
high, global warming is the culprit. Snowstorms, hurricanes, and tornadoes have been around since the beginning of time, but now they want us
to accept that all of it is the result of climate change. Liberals have lost all credibility when it comes to climate science because their arguments
have become so ridiculous and so obviously disconnected from reality.
Researchers in government and elsewhere are concerned that shutting down outside communications is merely the first step in a
campaign to undermine the credibility of established science . As Alex Parker, an astronomer at the Southwest Research
Institute in Boulder, Colo., observed in a tweet this week: Barring public communication from science agencies reduces their visibility, which
masks their value, which makes them easier to dismantle.
1ar impact defense
ABR doesnt get close to extinction---vast majority of treatments will still be effective, no huge death tolls
Drew Smith 16, former R&D director at MicroPhage and SomaLogic, 6/14/16, The Myth Of The Post-Antibiotic
Era, https://www.forbes.com/sites/quora/2016/06/14/the-myth-of-the-post-antibiotic-era/#db027696fa83
The worst-case scenario would be that it would be like 1940, only without a raging World War. Keep in mind that by 1940, before
the introduction of penicillin, deaths from infectious diseases in the US had been reduced by 90% from their 19th century
levels [1]. This reduction was entirely due to the provisions of clean food, water, and vaccines. We have (or should have) better systems for
delivering these public health goods than we did 75 years ago.
But there is never going to be a post-antibiotic era. Antibiotic therapy will continue to be effective most of the time.
If antibiotic therapy is informed by rapid microbiology testing, then it will be effective nearly all of the time. Very
few bugs are, or will be, pan-resistant and untreatable by antibiotics. Even the worst superbugs MRSAs, CREs, ESBLs, and
now MCR-1sare almost always susceptible to at least one clinically useful antibiotic (XDR TB is the most troubling
exception to this rule).
What has changed is that resistance to at least one first-line antibiotic is now common, and doctors will have to become smarter about
their prescribing practices. They can no longer mindlessly write scripts based on signs and symptoms alone and expect good results every
time. Doctors consistently underestimate local levels of resistance, and exhibit high levels of complacency about the impacts of resistance on their
practices [2] [3] [4] . This culture of complacency will have to change.
Antibiotics will continue to be effective , but our traditional method of prescribing them, called empiric therapy [5], will become
increasingly ineffective. This will require a change in the way that we use antibiotics, but will not be an end to the
usefulness of antibiotics. That is an important distinction to keep in mind when reading articles about the coming
antibiotic apocalypse: change, yes; the end, no.

ABR is gradual, slow, and will be addressed---reject scary-sounding headlines and assertions that this time is
different
Drew Smith 16, former R&D director at MicroPhage and SomaLogic, 6/14/16, The Myth Of The Post-Antibiotic
Era, https://www.forbes.com/sites/quora/2016/06/14/the-myth-of-the-post-antibiotic-era/#db027696fa83
Right now, drug resistant infections are mainly a threat to those that are already sick and/or in medical facilities. But, if we
continue down this path, mundane infections in the otherwise healthy could someday morph into life-threatening ordeals,
and simple medical procedures and surgeries may be skipped to avoid risk of infection.
However, while this threat is real, its important to keep in mind that this is an ongoing, gradual challenge ; its extremely
unlikely that a single event will herald with complete certainty the abrupt end of modern medicine as we know it. In this
context, those scary headlines are inappropriate , if not numbing and counterproductive.
In May, Ars wrote about some alarmist and inaccurate news stories dealing with a newly identified type of drug resistance
one that makes bacteria resistant to a last-resort antibiotic called colistin and can spread between bacteria easily. The headlines blared that it
was the first time such a dastardly microbe had seeped into the USwhich is not true. And they suggested that it
would certainly mark the end of antibiotics also not true.
This week, scientists provided updates on tracking that type of resistance, and of course some alarmist headlines
followed . Yet, the new data actually suggests that a tempering of concerns about this particular resistance may be in order. It turns
out that this dreaded, "scary," nightmare of a drug-resistant microbe has been in the US for more than a year and elsewhere in the world since
as far back as 2005its just that nobody noticed it. And nobody noticed it because so far it hasnt been the dreaded, scary nightmare some have
feared.
Its not a huge cause for concern , Mariana Castanheira, lead author of one of this week's resistance updates, told Ars. Castanheira is
the director for Molecular and Microbiology at JMI Laboratories, a private company that monitors drug resistance microbes in hospitals and
medical settings. They and others are finding this new type of resistance now simply because theyre looking for it, she said.
Castanheira explains that people initially started digging for this new type of drug resistancea gene called mcr-1out of
concern that it makes bacteria resistant to the antibiotic colistin, which is a relatively toxic drug used only when nearly all others have
failed against a multi-drug resistant infection. Bacteria have shown up with colistin resistance before in fact, many times in the US
and elsewhere around the world. But in those cases, the genes were embedded in the bacterias chromosomes and generally passed down through
generations. The mcr-1 resistance gene, on the other hand, seems to always sit on a plasmid, a small loop of DNA that bacteria can readily pass
around to neighbors. If colistin-resistant bacteria shared their mcr-1 plasmid with others that are already resistant to lots of
antibiotics, they could create a long-feared invincible germa pan-resistant bacteria.
"Doesn't scare me"
So far that doesnt seem to be happening , though, Castanheira said. In more than a decade of skulking around, mcr-1 has
made its way into bacteria in animals, people, and soil all over the world. Yet, all
of the mcr-1 carrying microbes examined have been
susceptible to at least one antibioticand often several.
1ar burnout
empirics and isolated populations
Nick Beckstead 14, Research Fellow at the Future of Humanity Institute, citing Peter Doherty, recipient of the 1996
Nobel Prize for Medicine, PhD in Immunology from the University of Edinburgh, Michael F. Tamer Chair of
Biomedical Research at St. Jude Childrens Research Hospital, How much could refuges help us recover from a
global catastrophe? in Futures, published online 18 Nov 2014, Science Direct
That leaves pandemics and cobalt bombs, which will get a longer discussion. While there is little published work on human extinction risk from

pandemics, it seems that it would be extremely challenging for any pandemic whether natural or manmadeto
leave the people in a specially constructed refuge as the sole survivors . In his introductory book on pandemics (Doherty, 2013, p. 197)
argues: No pandemic is likely to wipe out the human species. Even without the protection provided by modern
science, we survived smallpox, TB, and the plagues of recorded history. Way back when human numbers were
very small, infections may have been responsible for some of the genetic bottlenecks inferred from evolutionary analysis, but there
is no formal proof of this. Though some authors have vividly described worst-case scenarios for engineered pandemics (e.g. Rees,
2003 and Posner, 2004; and Myhrvold, 2013), it would take a special effort to infect people in highly isolated locations, especially

the 100+ largely uncontacted peoples who prefer to be left alone. This is not to say it would be impossible. A madman intent on annihilating
all human life could use cropduster-style delivery systems, flying over isolated peoples and infecting them. Or perhaps a pandemic could be engineered to be delivered through animal or
environmental vectors that would reach all of these people
vs. Emerging Tech turns
2ac - nano defense
Laws of physics preclude catastrophic nano
Easterbrook, 3 (Gregg, Senior Fellow New Republic, Were All Gonna Die!, Wired Magazine, July,
http://www.wired.com/wired/archive/11.07/doomsday.html?pg=1&topic=&topic_set=)
5. Runaway nanobots! Eric Drexler, the father of nanotechnology, calls it "gray goo": the state of things in the wake of microscopic machines
capable of breaking down matter and reassembling it into copies of themselves. Nanobots could swarm over Earth like intelligent
locusts, Drexler fears, then buzz out into the cosmos devouring everything they encountered. Michael Crichton's latest novel, Prey, describes
a last-ditch attempt by scientists to destroy such contraptions before they take over the world. Set aside the fact that, for all the nanobot
speculation you've seen (including in Wired), these creatures do not, technically speaking, exist. Suppose they did. As the
visionary scientist Freeman Dyson pointed out in his New York Review of Books critique of Prey, not only wouldn't nanobots beable to
swarm after helpless victims as they do in the novel, they'd barely be able to move at all. Laws of physics dictate that the
smaller something is, the greater its drag when moving through water or air. "The top speed of a swimmer or flyer is proportional to
its length," Dyson notes. "A generous upper limit to the speed of a nanorobot flying through air or swimming through water
would be a tenth of an inch per second , barely fast enough to chase a snail."

Nanotechs inevitable and squo solves


Teague 6 (Clayton, Ph. D, director of the National Nanotechnology Coordination Office, Dr. Clayton Teague
Addresses Senate Committee on U.S. Leadership in Nanotechnology, Azozano.com)

With a total federal investment of more than $1 billion per year, the U.S. is the acknowledged world leader in
nanotechnology research and development. So said Dr. Clayton Teague, director of the National Nanotechnology Coordination Office, in a
testimony last week to the Senate Commerce, Science, and Transportation Committee. Dr. Teague detailed developments in nanotechnology, highlighting the
activities of the National Nanotechnology Initiative (NNI)collaborative program involving twenty-five federal agenciesin driving the United States to a position
NNI leadership sees tremendous opportunity ahead, said Dr.
of leadership in nanotechnology research and development (R&D). The
Teague. We have a vigorous program underway to launch a new era in science and technology in the U.S., thanks to the
support of the Administration and Congress. With continued support, the NNI will advance discoveries in medicine, energy, security, and other areas that will bring us
Nanotechnology, which refers to research and development at the
closer to achieving some of our greatest national and societal goals.
atomic, molecular, and macromolecular levels, is expected to revolutionize all industry sectors. Control over a material at the
nanoscale level allows scientists to alter the materials properties, thus opening a multitude of potential innovative technologies. Dr. Teagues testimony highlighted
how nanotechnology could be used to transform the nations energy consumption: photovoltaic cells formed from nanoscale particles of semiconductor materials can
be used to harness and convert sunlight into high efficiency electricity. Other emerging applications include employing smart bio-nanotubes to deliver drugs and
The emerging field has
genes to targeted areas of the human body, and an elevatorsupported by cables made of carbon nanotubesto outer space.
become one of the nations priorities for scientific research. Under the American Competitiveness Initiative, designed to position the
United States at the forefront of scientific innovation, President George W. Bush provided increased funding to the National Science Foundation, a leading agency in
the NNI, to fuel research in critical areas of innovation, including nanotechnology. The
fiscal year 2007 federal nanotechnology budget will
fund approximately 50 new interdisciplinary research teams to facilitate partnership between government, industry,
and university researchers. As advancements in the manufacture and applications of nanoscale materials are made, standards are needed to facilitate the
progress and commercialization of the many uses of nanotechnology. The American National Standards Institute (ANSI) established the ANSI Nanotechnology
Standards Panel (ANSI-NSP) in 2004 to coordinate and promote the development of voluntary, consensus standards for nanotechnology applications. Dr. Teague
serves as co-chair of the ANSI-NSP. Primary work areas of the panel include the standardization of nanotechnology nomenclature/terminology; materials properties;
and testing, measurement and characterization procedures. In 2005, the International Organization for Standardization (ISO) established the ISO Technical
Committee (TC) 229 Nanotechnologies to spearhead the development of international standards for this emerging field. ISO TC 229 created three working groups to
Under Dr.
advance standardization in the areas of terminology and nomenclature; metrology and characterization; and health, safety, and the environment.
Teagues guidance, the U.S. leads the working group on health, safety, and environmental aspects of
nanotechnologies. [See related article, ISO Nanotechnologies TC 229 Meets in London]. In his address to the Senate, Dr. Teague emphasized the importance
of international cooperation in nanotechnology standardization efforts. Because technological innovation is a global phenomenon . . . all
countries will benefit from cooperating and coordinating efforts in many of the formative areas of nanotechnology
R&D, such as technical norms and standards; intellectual property rights; environment, health, and safety; and education, Dr. Teague said.
2ac ai defense
No AI impact
Meek, 2015- reporter at The Guardian (Andy Meek, 7/24/15, Connecting artificial intelligence with the internet of
things, http://www.theguardian.com/technology/2015/jul/24/artificial-intelligence-internet-of-things)
Its no secret tech luminaries like Elon Musk and Bill Gates worry about humanity flirting with disaster though a digital version of the Icarus
myth in our case, the power of artificial intelligence being the sun that eventually burns our wings. Even so, not every futurist or
technology pioneer is quite so alarmed that our experiments with AI might confine us all to dystopian doom. John
Underkoffler the chief executive of Oblong Industries, better known as the guy who created the futuristic gesture-based interface in the movie
Minority Report is one such thinker. He founded Oblong Industries in 2006 as a first step to bringing ideas like the Minority Report interface
into the real world, which means he knows as well as anyone where the bounds of sci-fi end and a high-tech new reality begins. His company
today sells what it describes as commercial versions of the Minority Report computers. Relying on them in the conference room, using a
connected wand to manipulate on-screen data, can make the user look almost like theyre conducting an unseen symphony. Thats one
manifestation of how technology giant Cisco has projected that the so-called internet of things (IoT) the networked connection of people,
process, data and things will see connections surge up to as many as 50bn by the end of the decade. Reasons for optimism Those connections
represent a whole new universe of devices coming online, sending out data, pinging other devices and servers and, depending on
who you ask, eroding more of our privacy in the process, or worse. Yet, as Underkoffler sees it, theres no need to fear the machine-
filled future that awaits us, at least not yet. Instead, he thinks there are some basic questions that need answering first, before it makes
sense to even begin to think about putting limits around potential AI capabilities. The optimist in me says, okay, millions of new objects all
connected to the internet wow, to make sense of that is going to require an incredible new interface, he says. Id love to start thinking about
that. How do we talk to all these objects in a coherent way? Thats a really great design problem. He and some of his colleagues from
around the globe believe an over-abundance of concern at this point about a super-intelligent AI running amok, co-
opting the IoT and turning our gadgets against us means were worried about the wrong things and not asking the right
questions. Professor Sanjay Sarma the director of digital learning at MIT and a pioneer who helped develop the technical concepts and
standards behind radio frequency identification technology (RFID) said he believes that, on balance, AI will deliver value as we gradually
connect our thermostats, refrigerators and the like to the web, and to each other. He also points to a potential bogeyman on the horizon, one that
he thinks trumps potential AI-related mischief. Its his fear that the introduction of an entirely new device class, one for which a prevailing digital
architecture does not yet exist, introduces all kinds of potential new security vulnerabilities that flourish in the ecosystems gaps. All
technologies converge, Sarma said. Its inevitable. The benefits, in my view, are potentially incredible regarding the IoT. The BP disaster
imagine if AI were watching over those systems and could have detected the disaster earlier. Potential pitfalls Sarma continues: Do I have
worries? I do. Im more worried about artificial stupidity. Im less worried about systems so intelligent they out-do
human beings. I worry we will build artificial intelligence systems that are too smart by half, where they do something really dumb for
example, a cascading series of events that results in a power shutdown. Or a poorly designed system that gets hacked and causes havoc. Im more
concerned we will create flawed systems which compromise our privacy and our security, even unintentionally. Indeed, Sarma thinks its only a
matter of time before some poorly designed IoT system is hacked by a major player, creating havoc on the scale of something like a large area
power shutdown. One reason? The existence of so many walled gardens in the sector. I have several Nest thermostats in my house, Sarma
said. They do one thing and do them well. But what if I want to buy a Nest system and an internet-enabled home lock, and I want to bridge the
two? Where, say, I unlock the door and Nest increases the temperature. And I want to connect them to my Tesla. Well, because theyre walled
gardens, whatll happen is someone somewhere is going to do something stupid - some vendor will bridge it together - and doing that will open
up security and privacy holes. Theres a huge opportunity here thats inevitable, and were all barreling towards it. But all great systems are
based on clear, simple to understand architecture. The world wide web is based on hyperlinks. We dont have a clear architectural understanding
of what the IoT is. Everything is walled gardens with bandaids on top. We need to have one single garden of eden we all play in. Meanwhile,
count the technologist who envisioned Tom Cruises character in Minority Report swiping through data among those who think our present
fears about AI-IoT are overblown. Im perplexed by that one, Underkoffler says about warnings like those from
Musk, who earlier this year donated $10m to the Future of Life Institute to finance research into keeping AI under control. They should
honestly know better. Theyre either badly informed or irresponsible to be fear-mongering in that way, because the
truth is we dont have AI. We should distinguish between AI and machine learning. Theres a lot of debate about the
difference, but I think we can distill it down to consciousness. The decision to manipulate the surrounding world-
machine learning systems dont have the slightest bit of that. The systems we build today are not built with a
mechanism of modifying themselves. The mail sorting machine is never going to decide to turn into a genocide
machine. The span of functionality never changes.
2ac - turn
Deference to Trump on AI and emerging tech issues guarantees catastrophic regulatory failure---hell be just
as incompetent on emerging tech as every other issue---but, Japan and the EU are establishing regulatory
models that solve now
John Knefel 1-27, freelance journalist covering national security and civil liberties, 1/27/17, The United States
Needs a Federal Robotics Agency Before It's Too Late, https://www.inverse.com/article/26426-federal-robotics-
agency
The United States has never had a greater need for a centralized body to offer guidance and expertise in the complex field of
robotics and a rtificial i ntelligence. A.I. is getting baked into everything from online shopping experiences to Uber to autonomous driving
technology. This is to say nothing of how automation is soon going to disrupt the jobs market.
The next wave of economic dislocation wont come from overseas, said former President Barack Obama during his farewell address recently in
Chicago. It will come from the relentless pace of automation that makes many good, middle-class jobs obsolete.
Obama didnt propose an overarching federal agency to regulate industry against recklessly sliding into that dislocation, though.
An outgoing president, it wouldnt have meant much; instead, he called for a new social compact that guaranteed all kids an education to
deal with the impending disruption. Meanwhile, new President Donald Trump wrapping up his first full week in office. It is unlikely hell
do anything to establish a regulatory body that will make sure industry doesnt run away with A.I. or robotics at the
expense of the greater populous. The Washington Post floated the idea years ago and its only become more critical.
As it stands, regulations of robotics and A.I. are spread out at the federal and state level . Federal agencies like the FAA, SEC,
and the National Highway Traffic Safety Administration all have some degree of issuing regulations regarding robotics and A.I., but the
approach is largely scattershot and leaves inconsistencies, gaps, and suffers from a dearth of permanent expertise
within the federal government . For instance, eight states and Washington, D.C. have laws on the books that govern the use of
autonomous cars, but experts say the existing system doesnt come even close to the rules that govern airplane safety, for instance.
John Frank Weaver, a lawyer in Boston, Massachusetts who specializes in A.I. law, thinks the time for centralized oversight is now.
There should be some federal commission, or entity, that has some role in organizing a large picture regulation of AI and
autonomous technology, Weaver tells Inverse.
The idea that theres one body where congress and the executive branch are able to pool their resources and come up with a coherent federal
policy for the country, both in terms of domestic policy and how we approach international treaties, I think is important, because of the potential
dangers in a lot of areas.
Those areas could be privacy implications from consumer drones, or safety on interstate highways filled with driverless cars. Theres also what I
call the public policy of ennui, says Weaver. I think the potential for great economic disruption because of this technology is there. His go-to
example is autonomous cars. The promise of self-driving vehicles goes beyond mere convenience for commuters who want to read a book on
their way to work. One of the most common jobs for men without college degrees is long-haul trucking. A much-ballyhooed start-up called Otto,
recently bought by Uber, wants to put self-driving tractor-trailers on the highways soon. Uber started testing autonomous cars in Pittsburgh in
September and has begun mapping the streets of San Fracisco.
That could have serious economic and social ramifications, Weaver says. Are there public policy decisions we can make that will help those
people and mitigate the negative effects that technology could have on their quality of life? A central body considering those questions hopefully
would be well positioned to come up with some potential answers.
Still, working groups within existing agencies dont address the larger concern experts have . Ryan Calo, a professor at the
University of Washington who advised the Obama administration on robotics oversight, has called for a federal robotics commission for years.
Calo says that within the U.S. government theres an increasing recognition that congress and the executive branch
doesnt have the embedded expertise it needs to address these emerging challenges. Quick fixes, like appointing a
robotics expert for each agency, or relying on a network of outside advisors, is inefficient, he argues.
Even within a White House initiative to provide guidance on A.I., there was confusion initially. One of the things that was happening before the
Office of Science and Technology Policy intervened, at the federal level, was that our discussion about robotics was completely siloed, he says.
So the Federal Aviation Administration would think about certain things having to do with drones, and the Securities and Exchange Commission
would think about things having to do with high-speed trading algorithms, and National Highway Transportation and Safety Administration
would think about driverless cars, and so on and so on and so on, and never the twain shall meet.
In Calos estimation, the robotics commission wouldnt be a regulatory body per se, but would instead serve as a way to attract top talent to the
government and provide a clearinghouse an internal think tank of sorts for officials to go to get advice not only about the state of the art
technology, but what its impact on society could be. For Calo, there are key questions that need to be addressed at the federal level that so far
have gone unanswered.
How safe do driverless cars need to be before they get to be on the road? And when a company certifies that a car is that safe, what techniques
does the government use to validate that certification? Calo asks. For a commercial plane, the FAA says that in order for you to have a
commercial plane flying over the nations skies, you need to certify that each of your component parts will only fail in ten-to-the-minus-nine
times.
Theres nothing like that for how well driverless cars need to perform before theyre on the nations highways, he says.
Calo is skeptical that the Trump administration will take his advice , and its not hard to see why by glancing over his incoming
team. Trump has nominated multiple cabinet members who seem more interested in dismantling the agencies
they oversee than actually running them : see Ben Carson at Housing and Urban Development and Betsy DeVos at the
Department of Education for two notable examples. Its
incredibly unlikely , then, that Trump will create any new federal
oversight bodies no matter how necessary they might be .
One exception might be Tesla and SpaceX CEO Elon Musk, who has met with Trump several times before and after his inauguration. Musk is on
Trumps strategic policy forum along with Uber CEO Travis Kalanick.
BothJapan and the European Union recently created versions of the kind of robotics commissions Calo has
advocated for in the United States. These are major economic powerhouses , he says.
One additional emerging concern that gets less attention that drones and driverless cars is copyright law and protection of intellectual property.
Weaver says that A.I. has upended a lot of the assumptions we have that are so basic we dont even address them, theyre just baked in. The
assumption is that there are human beings making decisions. But with A.I., thats not the case anymore. Whether youre talking about Twitter
bots that create satire, or news wire services that turn data into natural language stories, theres no provision in federal law that governs those
situations. I think its highly questionable whether theres any intellectual property associated with that, says Weaver.
Theres a parallel concern as well, that gets to criminal liability if autonomous cars cause an accident. So far, Google and the auto manufacturers
that are using this technology have universally said, more or less, that if there is any liability created by these cars because its our technology
and theres no driver well assume the liability, says Weaver. I dont think thats sustainable.
Conservatives often balk at the idea of either increasing federal agencies or creating new regulations, but recent history shows
the danger of markets and industries operating without any oversight.
Author Anat Admati has campaigned since the 2008 economic crash, warning about the continuing lack of adequate banking regulations, a topic
she explores in The Bankers New Clothes, a book on the lack of regulation in banking.
Admati explains that when the issues are technical, industry experts are often ahead of the regulators and politicians who need
to put in place and implement rules on behalf of the public. People in the private sector naturally have their own private perspective,
which is not always consistent with societys best interests, she tells Inverse. It is important that policymakers rely on sufficient,
un-conflicted expertise and make sure to set rules in a timely manner.
Otherwise, we may discover that risks have been ignored when it is too late and harm has occurred .
When it comes to the economy, finding out something too late can be catastrophic. When it comes to tech like robotics and artificial
intelligence, human oversight in the form a central government agency might just prevent disaster .
1ar nano defense (at arms race)
No risk of nano arms race
Bruns 2001, Bryan Bruns, Ph.D. Sociology of Development, Cornell University. Minor Fields: Agricultural
Economics, Southeast Asian Studies M.S. Sociology of Development, Cornell University. B.A. Major in
Anthropology, Beloit College, Visiting Scholar, Workshop in Political Theory and Policy Analysis, Feb 2001,
Nanotechnology and The Ultimate Terrorists, http://www.foresight.org/nanodot/?p=457
Considering the choice of weapons helps put nanoweapons into context. Bioweapons are and will continue to be a
much bigger danger than currently hypothetical nanoweapons . The availability of cruder weapons of mass
destruction using existing chemicals, viruses and bacteria means that strategies reliant only on controlling or
"relinquishing" advanced biotechnology and nanotechnology would not eliminate present dangers, let alone
completely forestall new threats. Defensive preparations would help, but the variety of threats and possibility of
technological surprises means that absolute safety is impossible. Design guidelines in both biotechnology and
nanotechnology could deliberately build in vulnerability to countermeasures, in ways that would be difficult though
not impossible to evade. Design could help maintain and enhance the relative disadvantages that might induce
terrorists to choose more conventional and better understood weapons. Despite early fears, it has become
increasingly clear that the peaceful use of nanotechnology could be made safe through prudent design and other
measures which could eliminate the risk of "runaway replicators" accidentally converting the world into "gray goo."
Safety in ordinary applications could be promoted through a panoply of conventional approaches such as
engineering standards, regulatory codes, licensing, professional ethics, concern for reputation, insurance company
requirements, legal liability and open source-type cooperation. As with any powerful technology, disregard for safe
operating procedures might still risk industrial accidents, while pranks, vandalism and sabotage would still be
threats, but there is much scope for designing the technology to make problems self-limiting, and to be resistant to
abuse. Military nanoweapons may take more frighteningly efficient forms, analogous to plagues, nerve gas and
neutron bombs. However, there are reasons to hope that governments may avoid nanotech arms races and warfare, if
they cooperate to apply strategies like those that have so far largely succeeded in preventing nuclear, chemical and
biological warfare. Such measures include arms control treaties, defense, deterrence, education, redefining norms
about acceptable weapons, and deliberately increasing international economic and social interdependence. If such
policies are put into practice, then they would also help control all but the most isolated and extreme terrorists.
Weapons using molecular nanotechnology are currently nonexistent. Compared to cruder chemical and biological
weapons, the relative risk from nanoweapons seems likely to stay low for a long time . As the technology develops,
adequate attention to preventive design and defense could help discourage terrorists from choosing to acquire or use
nanoweapons.
1ar no ai
(Un)Intelligence -- robots lack common sense and creativity
Sample, 2015- science editor at The Guardian (Ian Sample, 6/26/15, AI: will the machines ever rise up?
http://www.theguardian.com/science/2015/jun/26/ai-will-the-machines-ever-rise-up)
The present day setting for Humans gives the conflicts an immediate power and persuasiveness. But it also bolsters the misconception
that human-like artificial intelligence is looming on the horizon. Though scientists have made serious progress in AI,
the advances are almost entirely in what researchers call narrow AI: the creation of smart algorithms for dedicated tasks.
An AI today can power a chatbot that answers common sales enquiries, or tease meaning from human speech. But assign one to any other simple
task and it will fall flat. The University of Albertas Cepheus algorithm can play perfect Texas Holdem. Challenge Cepheus to tiddly winks
though, and it will not know where to begin. We really have no idea how to make a human level AI, says Murray Shanahan,
professor of cognitive robotics at Imperial College London, who was a scientific adviser on Garlands Ex machina. He rates the odds of
scientists developing human-level AI as possible but unlikely between 2025 and 2050. In the second half of the century
that becomes increasingly likely, but still not certain. A case of if, not when. The big hurdles are endowing computers and
robots with common sense: being able to anticipate the consequences of ordinary, every day actions on people and
things. The other one is endowing them with creativity. And that is incredibly hard, he says.

Wont become dangerous


Jozuka, 2015- Motherboard writer at Vice (Emiko Jozuka, 11/19/15, Robot Companies: Robots Won't Steal Our
Jobs, They'll Be Our Minions, http://motherboard.vice.com/read/robot-companies-robots-wont-steal-our-jobs-
theyll-be-our-minions?trk_source=nav)
The creeping fear that robots might someday rob humans of their jobs is unfounded , according to bunch of robot companies based
out in San Francisco. In a new report published Wednesday by Silicon Valley Robotics, a non-profit made up of several robot companies, the
general consensus is that no, service robots wont be stealing our jobs. Instead theyll be doing us a favor by taking
over repetitive menial labor, freeing humans to engage in more creative task that only homo sapiens can do if all
goes according to these companies plans and commercial interests. Interviews with emerging robotics startups such as Farfetch, Fellow Robots,
and Savioketo name a fewreveal how companies are aiming to expand into the service sector. While the development of industrial robotics
has dominated the market for several decades, the reports authors argue that robots will increasingly be used in the e-commerce, logistics, and
retail sectors. Why? Because robots can be put to work 24/7reducing labor costs, remember vast amounts of information accurately, and be
programmed to improve over time. But creators sure dont want them to be like one-trick ponies that just automate a single-task like their
industrial predecessors. Were thinking a lot more about flexible robotics. We think about programmable robotics, said Roger Chen from
OATV, in the report. Its no longer just about robotics automating specific human tasks. Its more about how flexible robotics will enable
superior operations overall. Marco Mascorro, CEO and co-founder of Fellow Robots, gives an example of how optimised robot workers
can assist their human colleagues. For example, when a robot works in a store an onboard mapping technology will
allow it to memorise where all the objects are kept in the store. If something gets moved, telling other employees can be a chore.
The robot, however, said Mascorro could provide other store associates with this information. Were talking about how
we can make this experience even richer for employees, added Mascorro, noting how up to twenty-five languages could be added
onto the robot to making communicating with customers easier as well. In the customer service sector, robot makers suggest that robot
workers in hotels could actually entertain and put guests at ease. Relay, an R2D2-lookalike delivery robot made by a startup called
Savioke, is explicitly for that purpose. According to Savioke CEO, Steve Cousins, Relays ability to deliver late night snacks and
emergency towel supplies to guests basically allows humans to cut out redundant tasks and focus on more
managerial roles. Its not like our robot butlers will react rudely to guests either. When Relay goes to deliver a bunch
of snacks to hotel guests, its programmed to ask polite questions relating to the guests stay. Another plus is that
nobody cares if they look bad in front of an automaton. If the robots coming and bringing you something early in
the morning, you dont have to brush your teeth and get dressed because theres a person coming to your door, said
Cousins, in the report. Robots dont care how you look and they dont smell your breath. Its just a more at the door
experience that people seem to like." If all goes according to the reports plans, it sounds like service robots of the future will
serve dually as our minions and entertainers, with their human overlords cracking the work whip.

Expert consensus and empirics are on our side


-- prefer us: we cite ai experts and neuroscientists
-- biological limits: we dont fully understand human intelligence yet, so theres nothing to model super-intelligent
ai on
-- empirics: history of over-promising and under-delivering in ai
-- transistors will reach physical limits = moores law is stalling
Markoff, 16- NYT journalist (John Markoff, 4/7/16, When Is the Singularity? Probably Not in Your Lifetime,
http://www.nytimes.com/2016/04/07/science/artificial-intelligence-when-is-the-singularity.html?_r=0)
Misconception: Computers will outstrip human capabilities within many of our lifetimes. Actually: You wont be obsolete for a long
time, if ever, most researchers say. In March when Alphago, the Go-playing software program designed by Googles DeepMind
subsidiary defeated Lee Se-dol, the human Go champion, some in Silicon Valley proclaimed the event as a precursor of the imminent arrival of
genuine thinking machines. The achievement was rooted in recent advances in pattern recognition technologies that have also yielded impressive
results in speech recognition, computer vision and machine learning. The progress in artificial intelligence has become a flash point for
converging fears that we feel about the smart machines that are increasingly surrounding us. However, most a rtificial
i ntelligence researchers still discount the idea of an intelligence explosion. The idea was formally described as the
Singularity in 1993 by Vernor Vinge, a computer scientist and science fiction writer, who posited that accelerating technological change would
inevitably lead to machine intelligence that would match and then surpass human intelligence. In his original essay, Dr. Vinge suggested that the
point in time at which machines attained superhuman intelligence would happen sometime between 2005 and 2030. Ray Kurzweil, an artificial
intelligence researcher, extended the idea in his 2006 book The Singularity Is Near: When Humans Transcend Biology, where he argues that
machines will outstrip human capabilities in 2045. The idea was popularized in movies such as Transcendence and Her. Recently several
well-known technologists and scientists, including Stephen Hawking, Elon Musk and Bill Gates, have issued warnings about
runaway technological progress leading to superintelligent machines that might not be favorably disposed to
humanity. What has not been shown, however, is scientific evidence for such an event. Indeed, the idea has been
treated more skeptically by neuroscientists and a vast majority of artificial intelligence researchers. For starters, biologists
acknowledge that the basic mechanisms for biological intelligence are still not completely understood, and as a result
there is not a good model of human intelligence for computers to simulate. Indeed, the field of artificial intelligence has a
long history of over-promising and under-delivering. John McCarthy, the mathematician and computer scientist who coined the
term artificial intelligence, told his Pentagon funders in the early 1960s that building a machine with human levels of
intelligence would take just a decade. Even earlier, in 1958 The New York Times reported that the Navy was planning to
build a thinking machine based on the neural network research of the psychologist Frank Rosenblatt. The article
forecast that it would take about a year to build the machine and cost about $100,000. The notion of the Singularity is predicated on
Moores Law, the 1965 observation by the Intel co-founder Gordon Moore, that the number of transistors that can be etched onto a sliver of
silicon doubles at roughly two year intervals. This has fostered the notion of exponential change, in which technology
advances slowly at first and then with increasing rapidity with each succeeding technological generation. At this
stage Moores Law seems to be on the verge of stalling. Transistors will soon reach fundamental physical limits when
they are made from just handfuls of atoms. Its further evidence that there will be no quick path to thinking
machines.
No impact and long timeframe
Brooks 14 (Rodney, 11/10/14, Ph.D. in Computer Science from Stanford, Panasonic Professor of Robotics
(emeritus) at MIT artificial intelligence is a tool, not a threat
http://www.rethinkrobotics.com/blog/artificial-intelligence-tool-threat/ DA: 10/2/16)
Recently there has been a spate of articles in the mainstream press, and a spate of high profile people who are in tech
but not AI, speculating about the dangers of malevolent AI being developed, and how we should be worried about
that possibility. I say relax. Chill. This all comes from some fundamental misunderstandings of the nature of the
undeniable progress that is being made in AI, and from a misunderstanding of how far we really are from having
volitional or intentional artificially intelligent beings, whether they be deeply benevolent or malevolent.
By the way, this is not a new fear, and weve seen it played out in movies for a long time, from 2001: A Space
Odyssey, in 1968, Colossus: The Forbin Project in 1970, through many others, and then I, Robot in 2004. In all
cases a computer decided that humans couldnt be trusted to run things and started murdering them. The computer
knew better than the people who built them, so it started killing them. (Fortunately that doesnt happen with most
teenagers, who always know better than the parents who built them.)
I think it is a mistake to be worrying about us developing malevolent AI anytime in the next few hundred years. I
think the worry stems from a fundamental error in not distinguishing the difference between the very real recent
advances in a particular aspect of AI, and the enormity and complexity of building sentient volitional intelligence.
Recent advances in deep machine learning let us teach our machines things like how to distinguish classes of inputs
and to fit curves to time data. This lets our machines know whether an image is that of a cat or not, or to know
what is about to fail as the temperature increases in a particular sensor inside a jet engine. But this is only part of
being intelligent, and Moores Law applied to this very real technical advance will not by itself bring about human
level or super human level intelligence. While deep learning may come up with a category of things appearing in
videos that correlates with cats, it doesnt help very much at all in knowing what catness is, as distinct from
dogness, nor that those concepts are much more similar to each other than to salamanderness. And deep learning
does not help in giving a machine intent, or any overarching goals or wants. And it doesnt help a machine
explain how it is that it knows something, or what the implications of the knowledge are, or when that knowledge
might be applicable, or counterfactually what would be the consequences of that knowledge being false. Malevolent
AI would need all these capabilities, and then some. Both an intent to do something and an understanding of human
goals, motivations, and behaviors would be keys to being evil towards humans.
Morality Impacts outweigh Utilitarian
Focus
Note: could be part of either the Trans- Discrimination Advantage OR part of the Excess State Flexibility Impact
Morality Impact Calculus Cards
Systemic impact focus Comes 1st

Ignoring the institutionalized violence against trans- people creates complacency with invisible wars and
everyday acts of violence that create the conditions for large magnitude impacts
Scheper-Hughes and Bourgois, 4
(Prof of Anthropology @ Cal-Berkely; Prof of Anthropology @ UPenn) (Nancy and Philippe, Introduction: Making Sense of Violence, in
Violence in War and Peace, pg. 19-22)
This large and at first sight messy Part VII is central to this anthologys thesis. It encompasses everything from the routinized, bureaucratized, and utterly banal violence of children dying of hunger and maternal despair
in Northeast Brazil (Scheper-Hughes, Chapter 33) to elderly African Americans dying of heat stroke in Mayor Dalys version of US apartheid in Chicagos South Side (Klinenberg, Chapter 38) to the racialized class hatred
expressed by British Victorians in their olfactory disgust of the smelly working classes (Orwell, Chapter 36). In these readings violence is located in the symbolic and social structures that overdetermine and allow the
criminalized drug addictions, interpersonal bloodshed, and racially patterned incarcerations that characterize the US inner city to be normalized (Bourgois, Chapter 37 and Wacquant, Chapter 39). Violence also takes the
form of class, racial, political self-hatred and adolescent self-destruction (Quesada, Chapter 35), as well as of useless (i.e. preventable), rawly embodied physical suffering, and death (Farmer, Chapter 34). Absolutely central to our
approach is a blurring of categories and distinctions between wartime and peacetime violence. Close attention to the little violences produced in the structures, habituses, and mentalites of everyday life shifts our attention to
pathologies of class, race, and gender inequalities. More important, it interrupts the voyeuristic tendencies of violence studies that risk publicly humiliating the powerless who are often forced into complicity with social

small wars
and individual pathologies of power because suffering is often a solvent of human integrity and dignity. Thus, in this anthology we are positing a violence continuum comprised of a multitude of

and invisible genocides (see also Scheper- Hughes 1996; 1997; 2000b) conducted in the normative social spaces of public schools, clinics, emergency rooms, hospital
wards, nursing homes, courtrooms, public registry offices, prisons, detention centers, and public morgues. The violence continuum also refers to the ease with which

humans are capable of reducing the socially vulnerable into expendable nonpersons and assuming the license - even the duty - to kill,
maim, or soul-murder. We realize that in referring to a violence and a genocide continuum we are flying in the face of a tradition of genocide studies that argues for the absolute uniqueness of the Jewish Holocaust and for vigilance
with respect to restricted purist use of the term genocide itself (see Kuper 1985; Chaulk 1999; Fein 1990; Chorbajian 1999). But we hold an opposing and alternative view that, to the contrary, it is absolutely necessary to make just
such existential leaps in purposefully linking violent acts in normal times to those of abnormal times. Hence the title of our volume: Violence in War and in Peace. If (as we concede) there is a moral risk in overextending the concept
of genocide into spaces and corners of everyday life where we might not ordinarily think to find it (and there is), an even greater risk lies in failing to sensitize ourselves, in misrecognizing protogenocidal practices and sentiments
daily enacted as normative behavior by ordinary good-enough citizens. Peacetime crimes, such as prison construction sold as economic development to impoverished communities in the mountains and deserts of California, or the
evolution of the criminal industrial complex into the latest peculiar institution for managing race relations in the United States (Waquant, Chapter 39), constitute the small wars and invisible genocides to which we refer. This applies

These are invisible genocides not because they


to African American and Latino youth mortality statistics in Oakland, California, Baltimore, Washington DC, and New York City.

are secreted away or hidden from view, but quite the opposite. As Wittgenstein observed, the things that are hardest to perceive are those
which are right before our eyes and therefore taken for granted. In this regard, Bourdieus partial and unfinished theory of violence (see Chapters 32 and 42) as well as his concept of misrecognition
is crucial to our task. By including the normative everyday forms of violence hidden in the minutiae of normal social practices - in the architecture of homes, in gender relations, in communal work, in the exchange of
gifts, and so forth - Bourdieu forces us to reconsider the broader meanings and status of violence, especially the links between the violence of everyday life and explicit political terror and state repression, Similarly,
Basaglias notion of peacetime crimes - crimini di pace - imagines a direct relationship between wartime and peacetime violence. Peacetime crimes suggests the possibility that war crimes are merely ordinary, everyday crimes of
public consent applied systematic- ally and dramatically in the extreme context of war. Consider the parallel uses of rape during peacetime and wartime, or the family resemblances between the legalized violence of US immigration
and naturalization border raids on illegal aliens versus the US government- engineered genocide in 1938, known as the Cherokee Trail of Tears. Peacetime crimes suggests that everyday forms of state violence make a certain kind
of domestic peace possible. Internal stability is purchased with the currency of peacetime crimes, many of which take the form of professionally applied strangle-holds. Everyday forms of state violence during peacetime make a
certain kind of domestic peace possible. It is an easy-to-identify peacetime crime that is usually maintained as a public secret by the government and by a scared or apathetic populace. Most subtly, but no less politically or
structurally, the phenomenal growth in the United States of a new military, postindustrial prison industrial complex has taken place in the absence of broad-based opposition, let alone collective acts of civil disobedience. The public
consensus is based primarily on a new mobilization of an old fear of the mob, the mugger, the rapist, the Black man, the undeserving poor. How many public executions of mentally deficient prisoners in the United States are needed
to make life feel more secure for the affluent? What can it possibly mean when incarceration becomes the normative socializing experience for ethnic minority youth in a society, i.e., over 33 percent of young African

it is essential that we recognize the existence of a genocidal capacity among otherwise good -
American men (Prison Watch 2002). In the end

humans and that we need to exercise a defensive hypervigilance to the less dramatic , permitted, and even rewarded everyday acts of
enough

violence that render participation in genocidal acts and policies possible (under adverse political or economic conditions), perhaps more easily than we
would like to recognize. Under the violence continuum we include, therefore, all expressions of radical social exclusion, dehumanization, depersonalization, pseudospeciation, and reification which normalize atrocious behavior and
violence toward others. A constant self-mobilization for alarm, a state of constant hyperarousal is, perhaps, a reasonable response to Benjamins view of late modern history as a chronic state of emergency (Taussig, Chapter 31). We
are trying to recover here the classic anagogic thinking that enabled Erving Goffman, Jules Henry, C. Wright Mills, and Franco Basaglia among other mid-twentieth-century radically critical thinkers, to perceive the symbolic and
structural relations, i.e., between inmates and patients, between concentration camps, prisons, mental hospitals, nursing homes, and other total institutions. Making that decisive move to recognize the continuum of violence allows

There is no
us to see the capacity and the willingness - if not enthusiasm - of ordinary people, the practical technicians of the social consensus, to enforce genocidal-like crimes against categories of rubbish people.

primary impulse out of which mass violence and genocide are born, it is ingrained in the common sense of everyday social life. The mad, the
differently abled, the mentally vulnerable have often fallen into this category of the unworthy living, as have the very old and infirm, the sick-poor, and, of course, the despised racial, religious, sexual, and ethnic groups of the
moment. Erik Erikson referred to pseudo- speciation as the human tendency to classify some individuals or social groups as less than fully human - a prerequisite to genocide and one that is carefully honed during the unremark- able
peacetimes that precede the sudden, seemingly unintelligible outbreaks of mass violence. Collective denial and misrecognition are prerequisites for mass violence and genocide. But so are formal bureaucratic structures and
professional roles. The practical technicians of everyday violence in the backlands of Northeast Brazil (Scheper-Hughes, Chapter 33), for example, include the clinic doctors who prescribe powerful tranquilizers to fretful and
frightfully hungry babies, the Catholic priests who celebrate the death of angel-babies, and the municipal bureaucrats who dispense free baby coffins but no food to hungry families. Everyday violence encompasses the implicit,
legitimate, and routinized forms of violence inherent in particular social, economic, and political formations. It is close to what Bourdieu (1977, 1996) means by symbolic violence, the violence that is often nus-recognized for
something else, usually something good. Everyday violence is similar to what Taussig (1989) calls terror as usual. All these terms are meant to reveal a public secret - the hidden links between violence in war and violence in peace,
and between war crimes and peace-time crimes. Bourdieu (1977) finds domination and violence in the least likely places - in courtship and marriage, in the exchange of gifts, in systems of classification, in style, art, and culinary
taste- the various uses of culture. Violence, Bourdieu insists, is everywhere in social practice. It is misrecognized because its very everydayness and its familiarity render it invisible. Lacan identifies rneconnaissance as the
prerequisite of the social. The exploitation of bachelor sons, robbing them of autonomy, independence, and progeny, within the structures of family farming in the European countryside that Bourdieu escaped is a case in point
(Bourdieu, Chapter 42; see also Scheper-Hughes, 2000b; Favret-Saada, 1989). Following Gramsci, Foucault, Sartre, Arendt, and other modern theorists of power-vio- lence, Bourdieu treats direct aggression and physical violence as a
crude, uneconomical mode of domination; it is less efficient and, according to Arendt (1969), it is certainly less legitimate. While power and symbolic domination are not to be equated with violence - and Arendt argues persuasively
that violence is to be understood as a failure of power - violence, as we are presenting it here, is more than simply the expression of illegitimate physical force against a person or group of persons. Rather, we need to understand
violence as encompassing all forms of controlling processes (Nader 1997b) that assault basic human freedoms and individual or collective survival. Our task is to recognize these gray zones of violence which are, by definition, not
obvious. Once again, the point of bringing into the discourses on genocide everyday, normative experiences of reification, depersonalization, institutional confinement, and acceptable death is to help answer the question: What makes
mass violence and genocide possible? In this volume we are suggesting that mass violence is part of a continuum, and that it is socially incremental and often experienced by perpetrators, collaborators, bystanders - and even by

harbor
victims themselves - as expected, routine, even justified. The preparations for mass killing can be found in social sentiments and institutions from the family, to schools, churches, hospitals, and the military. They

the early warning signs (Charney 1991), the priming (as Hinton, ed., 2002 calls it), or the genocidal continuum (as we call it) that push social consensus toward
devaluing certain forms of human life and lifeways from the refusal of social support and humane care to vulnerable social parasites (the nursing home elderly, welfare queens, undocumented
immigrants, drug addicts) to the militarization of everyday life (super-maximum-security prisons, capital punishment; the technologies of heightened personal security, including the
house gun and gated communities; and reversed feelings of victimization).
Ethics outweighs
You should prioritize ethics over utilitarianism life itself only has value if we also are allotted the full
dignity and respect that comes from individual rights and freedoms
Shue 89
Henry Shue, Professor of Ethics and Public Life, Princeton University, 89 Nuclear Deterrence and Moral
Restraint, pp. 141-2
Given the philosophical obstacles to resolving moral disputes, there are at least two approaches one can take in
dealing with the issue of the morality of nuclear strategy. One approach is to stick doggedly with one of the established moral
theories constructed by philosophers to rationalize or make sense of everyday moral intuitions, and to accept the verdict of the theory,
whatever it might be, on the morality of nuclear weapons use. A more pragmatic alternative approach assumes that trade-offs in
moral values and principles are inevitable in response to constantly changing threats , and that the emergence of novel,
unforeseen challenges may impel citizens of Western societies to adjust the way they rank their values and
principles to ensure that the moral order survives. Nuclear weapons are putting just such a strain on our moral beliefs. Before the
emergence of a nuclear-armed communist state capable of threatening the existence of Western civilization, the slaughter of millions of innocent
human beings to preserve Western values may have appeared wholly unjustifiable under any possible circumstances. Today, however, it
may be that Western democracies, if they are to survive as guardians of individual freedom, can no longer afford to
provide innocent life the full protection demanded by Just War morality. It might be objected that the freedoms of
Western society have value only on the assumption that human beings are treated with the full dignity and respec t
assumed by Just War theory. Innocent human life is not just another value to be balanced side by side with others in moral calculations. It is the
raison detre of Western political, economic, and social institutions. A free society based on individual rights that sanctioned mass
slaughter of innocent human beings to save itself from extinction would be morally corrupt , no better than soviet
society, and not worth defending. The only morally right and respectable policy for such a society would be to accept
destruction at the hands of tyranny,
Rights comes 1st
Rights are an absolute good must act to protect them in all instances
Human Rights Watch 97, An Introduction to the Human Rights Movement, 1997,
http://www.hrweb.org/intro.html.
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the
conscience of [hu]mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief
and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not
to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be
protected by the rule of law... These are the second and third paragraphs of the preamble to the Universal Declaration of
Human Rights (UDHR), adopted by the United Nations General Assembly on December 10, 1948 without a dissenting vote. It is the first
multinational declaration mentioning human rights by name, and the human rights movement has largely adopted it as a charter. I'm quoting them
here because it states as well or better than anything I've read what human rights are and why they are important. The United
Nations Charter, Universal Declaration of Human Rights, and UN Human Rights convenants were written and implemented in the
aftermath of the Holocaust, revelations coming from the Nuremberg war crimes trials, the Bataan Death March, the atomic bomb, and
other horrors smaller in magnitude but not in impact on the individuals they affected. A whole lot of people in a number of countries
had a crisis of conscience and found they could no longer look the other way while tyrants jailed, tortured, and killed
their neighbors. In Germany, the Nazis first came for the communists, and I did not speak up, because I was not a Communist. Then they
came for the Jews, and I did not speak up, because I was not a Jew. Then they came for the trade unionists, and I did not speak up, because I was
not a trade unionist. Then they came for the Catholics, and I did not speak up, because I was not a Catholic. Then they came for me... and by that
time, there was no one to speak up for anyone. -- Martin Niemoeller, Pastor, German Evangelical (Lutheran) Church Many also realized that
advances in technology and changes in social structures had rendered war a threat to the continued existence of the
human race. Large numbers of people in many countries lived under the control of tyrants, having no recourse but war
to relieve often intolerable living conditions. Unless some way was found to relieve the lot of these people, they could
revolt and become the catalyst for another wide-scale and possibly nuclear war. For perhaps the first time,
representatives from the majority of governments in the world came to the conclusion that basic human rights must be
protected, not only for the sake of the individuals and countries involved, but to preserve the human race . Every gun that is made, every
warship launched, every rocket fired signifies in the final sense, a theft from those who hunger and are not fed, those who are cold and are not
clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its
children. This is not a way of life at all in any true sense. Under the clouds of war, it is humanity hanging on a cross of iron. -- Dwight D.
Eisenhower President of the United States "I know not with what weapons World War III will be fought, but World War IV will be fought with
sticks and stones." -- Albert Einstein

Human Rights create frameworks that improve the world


Shattuck 94
John Shattuck, Former Assistant Secretary of State, 94, Federal News Service, AT THE WOMEN'S NATIONAL
DEMOCRATIC CLUB, 9/14/64.
On the disintegration side, we are witnessing ugly and violent racial, ethnic and religious class conflict in Haiti, in Bosnia, in
Central Asia, in Africa, most horribly in Rwanda -- all places where I have traveled in recent months and witnessed unspeakable suffering and
abuses of the most fundamental rights. The new global community has yet to develop an adequate response to these horrors.
We must intensify our search for new ways of holding individuals and governments accountable for gross human
rights violations, for new ways of anticipating and preventing conflicts before they spiral into uncontrollable violence and
reprisal, for new ways of mobilizing the international community to address an avalanche of humanitarian crises . These
are daunting tasks. Why then has the Clinton administration made protecting human rights and promoting democracy such a major theme in our
foreign policy? The answer I think lies not only in our values, which could be reason enough, but in the strategic benefits
to the United States of a policy that emphasizes our values. We know from historical experience that democracies are more likely
than other forms of government to respect human rights, to settle conflicts peacefully, to observe international and honor agreements, to go to war
with each other with great reluctance, to respect rights of ethnical, racial and religious minorities living within their borders, and to provide the
social and political basis for free market economics. In South Africa, in the Middle East, and now remarkably perhaps even in Northern Ireland,
the resolution of conflict and the broadening of political participation is releasing great economic and social energies
that can provide better lives for all the people of these long-suffering regions. By contrast, the costs to the world of
repressive governments are painfully clear. In the 20th century, the number of people killed by their own governments under
authoritarian regimes is four times the number killed in all of this century's wars combined. Repression pushes refugees across the borders and
triggers wars. Unaccountable governments are heedless of environmental destruction, as witnessed by Chernobyl and
the ecological nightmares of Eastern Europe.
Utilitarianism Indicts
Util Bad General
Reject util-calculating lesser evils results in the more extreme systemic violence and state of exceptions.
Weizman, 11
(Eyal, London University spatial and visual cultures professor, The least of all possible evils, pg 8-10)

The theological origins of the lesser evil argument still cast a long shadow on the present. In fact the idiom has become so deeply ingrained, and is invoked in such a
staggeringly diverse set of contexts - from individual situational ethics and international relations, to attempts to govern the economics of violence in the context of the
war on terror' and the efforts of human rights and humanitarian activists to maneuver through the paradoxes of aid - that it seems to have altogether taken the place
previously reserved for the term "good'. Moreover, the very evocation of the "good' seems to everywhere invoke the utopian tragedies of modernity, in which evil
seemed lurking in a horrible manichaeistic inversion. If
no hope is offered in the future, all that remains is to insure ourselves against
the risks that it poses, to moderate and lessen the collateral effects of necessary acts, and tend to those who have
suffered as a result. In relation to the "War on terror, the terms of the lesser evil were most clearly and prominently articulated by former human rights
scholar and leader of Canada's Liberal Party Michael Ignatieff. In his book The Lesser Evil Ignatieff suggested that in "balancing liberty against security' liberal states
establish mechanisms to regulate the breach of some human rights and legal norms, and allow their security services to engage in forms of extra juridical violence -
which he saw as lesser evils - in order to fend off or minimize potential greater evils, such as terror attacks on civilians of western states. If governments need to
violate rights in a terrorist emergency, this should be done, he thought, only as an exception and according to a process of adversarial scrutiny. "Exceptions', Ignatieff
states, "do not destroy the rule but save it, provided that they are temporary, publicly justified, and deployed as a last resort. The
lesser evil emerges here
as a pragmatic compromise a tolerated sin that functions as the very justification for the notion of exception. State
violence in this model takes part in a necro-economy in which various types of destructive measure are weighed in a
utilitarian fashion, not only in relation to the damage they produce, but to the harm they purportedly prevent and
even in relation to the more brutal measures they may help restrain. I n this logic, the problem of contemporary state violence resembles
indeed an all-too-human version of the mathematical minimum problem of the divine calculations previously mentioned, one tasked with determining the smallest
level of violence necessary to avert the greatest harm. For the architects of contemporary war this balance is trapped between two
poles: keeping violence at a low enough level to limit civilian suffering, and at a level high enough to bring a
decisive end to the war and bring peace. More recent works by legal scholars and legal advisers to states and militaries have sought to extend the
inherent elasticity of the system of legal exception proposed by Ignatieff into ways of rewriting the laws of armed conflict themselves. Lesser evil arguments
are now used to defend anything from targeted assassinations and mercy killings, house demolitions, deportation, torture, to the
use of (sometimes) non~ lethal chemical weapons, the use of human shields, and even "the intentional targeting of some
civilians if it could save more innocent lives than they cost. In one of its more macabre moments it was suggested
that the atomic bombings of Hiroshima might also be tolerated under the defense of the lesser evil . Faced with a
humanitarian A-bomb, one might wonder what, in fact, might come under the definition of a greater evil. Perhaps it is time for
the differential accounting of the lesser evil to replace the mechanical bureaucracy of the "banality of evil' as the idiom to describe the most extreme manifestations of
violence. Indeed,
it is through this use of the lesser evil that societies that see themselves as democratic can maintain
regimes of occupation and neo-colonization. Beyond state agents, those practitioners of lesser evils, as this book claims, must also include the
members of independent nongovernmental organizations that make up the ecology of contemporary war and crisis zones. The lesser evil is the argument of the
humanitarian agent that seeks military permission to provide medicines and aid in places where it is in fact the duty of the occupying military power to do so, thus
saving the military limited resources. The
lesser evil is often the justification of the military officer who attempts to administer
life (and death) in an "enlightened' manner; it is sometimes, too, the brief of the security contractor who introduces new and more efficient
weapons and spatio-technological means of domination, and advertises them as "humanitarian technology'. In these cases the logic of the lesser evil opens up a thick
political field of participation bringing together otherwise opposing fields of action, to the extent that it might obscure the fundamental moral differences between
these various groups.
But, even according to the terms of an economy of losses mid gains, the concept of the lesser evil
risks becoming counterproductive: less brutal measures are also those that may be more easily naturalized, accepted
and tolerated - and hence more frequently used, with the result that a greater evil may be reached cumulatively
Econ + Hegemony Backlines
Econ Backlines
Econ---A-to: Econ Resilient
Econs fragile---their indicators are wrong and dont translate into real strength
Hansen, 16 Steven Hansen, international business and industrial consultant, 3-26-2016, The Economy Keeps
Stumbling Along, Seeking Alpha, http://seekingalpha.com/article/3961069-economy-keeps-stumbling-along
Once a month, I assemble an economic forecast based on analysis of various data points which have led the economy. Historically, most of the
time the economy trends up or trends down - but recently the
economy simply has been frozen with little change in the rate of
growth. My view of the economy is at Main Street level - not necessarily GDP. My position is that GDP has disconnected
from the real economy. A thinking person might say that GDP never projected the real economy - and it was never more obvious with the
current situation where rate of change of growth slowed to a crawl. The jumping around of GDP in a flat economy is noticeable. We will be
releasing our economic forecast next week - and conditions have been flat (near the zero growth line) for three months .
All indicators I view outside the elements of our forecast are mixed and confused. Nothing is strong . One of my favorite
indicators to understand if the rate of economic growth is accelerating or decelerating is the relationship between the year-over-
year growth rate of non-farm private employment and the year-over-year real growth rate of retail sales. This index is currently
showing no growth differential . When retail sales grow faster than the rate of employment gains (above zero on the below
graph) - the rate of growth of the economy is usually accelerating.

The next recession will be different resiliency is gone


Isidore 11 Chris, writer and economic analyst, CNNMoney Senior Writer Chris Isidore, Previously worked at the
Journal of Commerce, Post-Tribune, went to University of Chicago, Recession 2.0 would hurt worse, 2011
The risk of double dip recession is rising. And while economists disagree on just how likely the U.S. economy is to fall into another
downturn, they generally agree on one thing -- a new recession would be worse than the last and very difficult to pull out
of. "Going back into recession now would be scary, because we don't have the resources or the will to respond,
and our initial starting point is such a point of weakness," said Mark Zandi, chief economist at Moody's
Analytics. "It won't feel like a new recession. It would likely feel like a depression." Zandi said the recent sell-off in
stocks have caused him to raise the odds of a new recession to 33% from 25% only 10 days ago. Other economists surveyed by
CNNMoney are also raising their recession risk estimates. The survey found an average chance of a new recession to be about 25%, up from
a 15% chance only three months ago. Of the 21 economists who responded to the survey, six have joined Zandi in increasing their estimates in
just the last few days. The main reason: the huge slide in stocks. Standard & Poor's downgrade of the U.S. credit rating is another concern. "The
correction in equity markets raises the risk of recession due to the negative hit to wealth and confidence," said Sal Guatieri, senior economist for
BMO Capital Markets. Even with a 430-point rebound in the Dow Jones industrial average Tuesday following the Federal Reserve meeting,
major U.S. stock indexes have lost more than 11% of their value over the last 12 trading days. Recovery at risk A plunge in stocks doesn't
necessarily mean a new recession. The economy avoided a recession after the stock market crash of 1987. "Stock price declines are often
misleading indicators of future recessions," said David Berson, chief economist of BMI Group. But with the economy already so fragile, the
shock of another stock market drop and resulting loss of wealth could be the tipping point. "It really does matter where the economy is when it
gets hit by these shocks," said Zandi. "If we all pull back on spending, that's a prescription for a long, painful recession," he said. Most
economists say they aren't worried that S&P's downgrade makes recession more likely, although a few said any bad news at this point increases
the risk. "The downgrade has a psychological impact in terms of hurting consumer confidence," said Lawrence Yun, chief economist with the
National Association of Realtors. On shakier ground Another recession could be even worse than the last one for a few
reasons. For starters, the economy is more vulnerable than it was in 2007 when the Great Recession began. In fact,
the economy would enter the new recession much weaker than the start of any other downturn since the end of
World War II. Unemployment currently stands at 9.1%. In November 2007, the month before the start of the Great Recession, it was just
4.7%. And the large number of Americans who have stopped looking for work in the last few years has left the percentage of the population with
a job at a 28-year low. Various parts of the economy also have yet to recover from the last recession and would be at serious risk of lasting
damage in a new downturn. Home values continue to lose ground and are projected to continue their fall. While manufacturing has had a nice
rebound in the last two years, industrial production is still 18% below pre-recession levels. There are nearly 900 banks on the FDIC's list of
troubled institutions, the highest number since 1993. Only 76 banks were at risk as the Great Recession took hold. But what has
economists particularly worried is that the tools generally used to try to jumpstart an economy teetering on the
edge of recession aren't available this time around. "The reason we didn't go into a depression three years ago
is the policy response by Congress and the Fed," said Dan Seiver, a finance professor at San Diego State
University. "We won't see that this time." Three times between 2008 and 2010, Congress approved massive
spending or temporary tax cuts to try to stimulate the economy. But fresh from the bruising debt ceiling battle and
credit rating downgrade, and with elections looming, the federal government has shown little inclination to move in that direction.
So this new recession would likely have virtually no policy effort to counteract it.
Econ---A-to: No Impact Statistics

Theres robust empirical support for our impact


Howell 13 (Patrick, B.A. from Emory University. Economic Crises and the Initiation of Militarized Disputes, A
Thesis Submitted to the Graduate Faculty of The University of Georgia in Partial Fulfillment of the Requirements
for the Degree Master of Arts, 2013, https://getd.libs.uga.edu/pdfs/howell_patrick_d_201305_ma.pdf)
The findings are clear: economic crises are an important trigger for shifts in a states rate of dispute initiation. By
using a large sample of states over a period of 185 years, this conclusion then can also be taken as generalizable to the
entire population of states in the international system. In addition to providing support for issue crossover and the influence economic troubles
can play on foreign policy decisions, the findings here also support the methodological rationale for using economic crises as
explicit, observable events, instead of as trends in other variables (e.g. GDP growth). Of course, this is not to say that all work on this
topic is final. There exist a number of areas where this research agenda can be improved upon and/or extended to in order to provide a more holistic account of where
and how economic crises exactly apply political pressure on leaders. First, the study of diversionary
war exists in both quantitative tests and in
more fine toothed examinations of actual cases (Levy and Vakili 1992; Fravel 2010). Exploring the internal processes within states in such a
fashion can also produce a deeper understanding of the exact causal mechanisms through which prospect theory operates. Aggregation and levels of analysis become a
basic concern with applying prospect theory outside of the laboratory and to states and governments. After all, prospect theory is developed as a theory of individual
decision making, the question is whether it is applicable to collective decision making (Vis 2011, 337). Here a unitary actor assumption is made from the outset, but
it is also possible that the observed effect is driven instead by individual decision-makers themselves (for example, Fuhrmann and Early
2008, who keep the level of analysis only on President Bush). A deeper case study of a few select cases with an eye towards process might reveal whether the increase
in conflict initiation is due to a single policy entrepreneur or leader, or if it is the result of collective behavior (as perhaps even aides, legislators, and bureaucrats seek
to compensate for the detrimental effects that accompany an economic crisis separately or in concert). Examination of specific cases might also provide a more
accurate picture for policymakers of the strategy that can accompany an economic crisis and inducement of diversionary tendencies in another state. Smith (Smith
1998) hypothesizes diversionary actions as a strategic game, and finds that potential target states should then adopt a policy of strategic avoidance
disengaging from any scenario that might make them a target from a diversionary conflict initiated by an opposing state in dire straits. This question of strategic
avoidance occurs most often in the study of the U nited S tates (Fordham 2005; Meernik 2005), with evidence that other states avoid and/or initiate fewer
disputes with the United States when the American economy is performing poorly. The empirical test here using a proportionbased dependent variable might already
be capturing some degree of a strategic avoidance effect, in that some of the variation in the proportion of initiation could be because the rate of other states initiating
disputes on the crisis-stricken state is decreasing. If
strategic avoidance is occurring, it actually increases the strength of aspects of
the diversionary war literature (in that other states are actually behaving according to expectations of diversionary
actions ), but much more work and nuance would be needed to separate where then the logic in strategic avoiders is originating. The final implication of
the findings to be discussed here is the role of institutions in this analysis. As stated above, the institutional controls that were
included in the estimation demonstrated null effects on the overall rate of militarized dispute initiation. This finding is
interesting considering the enshrined role that institutions and regime types tend to play within scholarly work on diversionary war. Similar to the mixed results of
GDP indicators, mixed and contradictory results can be found throughout the body of work on diversionary war: some
find that the diversionary
effects exist mainly in democratic settings (Gelpi 1997; Davies 2002; Brule and Williams 2009), while others find that diversionary
effects occur in autocratic settings (Miller 1999; Lai and Slater 2005; Pickering and Kisangani 2010). One method of reconciling the
conflicting conclusions of whether democratic or autocratic leaders are more likely to engage in diversionary
behavior is in direct tests comparing the two regime types. Typically, these comparisons have either found the two regime types differ in the
targets that are selected by each (Bueno De Mesquita and Siverson 1995), or have found some fault with the way that the regime types themselves are defined, due to
differing incentives for differing subtypes of regimes (Pickering and Kisangani 2005). In order to examine the difference between democracies and autocracies, I split
the sample from Model 2 into either of the regime types, using a score of 6 in the Polity2 measure as a cut-point. Splitting the sample has the effect of
interacting regime type with all independent variables, giving regime specific effects not only for economic crises,
but also all control variables.1 The results of this regime split can be found in Table 2. As can be seen here, the effect of economic crises is
positive and significant in both institutional settings . Comparing the coefficients for economic crisis in Table 2 with those of the original Model 2,
the likely explanation for why the institutional variables in the original model did not have an impact on crisis initiation is because all democracies and
autocracies possess relatively similar incentives for increasing crisis initiation following economic crises, so any
variation across institutions was only averaged out. However, the results presented in Table 2 also provide support for a difference existing in the
process of how diversionary conflict might occur in either regime type, due to the differences in control variable significance. This lends some credence to the
separation of democracies and autocracies for study of diversionary war, but provides no evidence that the effect should only exist in one or the other. The
similarity in the main independent variable of economic crises, though, furthers the assertion that the effect of
economic crises increasing dispute initiation can be viewed as a general behavior of all states in the international
system. Conclusions Altogether, there can be said to be a robust, positive relationship between the occurrence of economic
crises and the rate of dispute initiation by states. This effect is especially strong and demonstrable when time
ordering is preserved by examining how crises in the previous year affect states in their current year . These findings can
also be said to have a relatively high degree of substantive import as well. As Figure 1 showed, the occurrence of each subsequent economic crisis increases the
chances of a state initiating disputes by almost 3%. The nearly 20 percentage point increase in dispute initiation across the range of
the lagged economic crisis variable also represents a substantial impact, especially considering the rare event nature
of militarized disputes to begin with. This generalizable finding can have far-reaching impact to both the study of diversionary war in academia, as
well as directly for policymakers. In academe settings, there is good evidence to support the use of acute economic crises over those
variables based on the slowershifting trends of GDP or public opinion measurements. Economic crises act as an
explicit trigger that can mark a leaders shift into a losses frame and engage in riskier behavior consistent with both
prospect theory and diversionary war hypotheses. Meanwhile, applying this observed effect to the real world would seem to indicate that if a state
goes through an economic crisis, other states should have increased wariness in their dealings with the crisis-stricken state and/or be more prepared for the possibility
of a new dispute emerging in the wake of such an event.

Economic decline causes global war


Royal 10
(Jedediah, Director of Cooperative Threat Reduction U.S. Department of Defense, Economic Integration,
Economic Signaling and the Problem of Economic Crises, Economics of War and Peace: Economic, Legal and
Political Perspectives, Ed. Goldsmith and Brauer, p. 213-215)

economic decline may increase the likelihood of external conflict


Less intuitive is how periods of . Political science literature has contributed a
moderate degree of attention to the impact of economic decline and the security and defence behaviour of interdependent states. Research in this vein has been considered at systemic, dyadic and
national levels. Several notable contributions follow. First, on the systemic level, Pollins (2008) advances Modelski and Thompson's (1996) work on leadership cycle theory, finding that
rhythms in the global economy are associated with the rise and fall of a pre-eminent power and the often bloody
transition from one pre-eminent leader to the next. As such, exogenous shocks such as economic crises could usher in a
redistribution of relative power (see also Gilpin. 1981) that leads to uncertainty about power balances, increasing the risk of miscalculation
(Feaver, 1995). Alternatively, even a relatively certain redistribution of power could lead to a permissive environment for

conflict as a rising power may seek to challenge a declining power (Werner. 1999). Separately, Pollins (1996) also shows that global economic cycles combined with parallel leadership
cycles impact the likelihood of conflict among major, medium and small powers, although he suggests that the causes and connections between global economic conditions and security
conditions remain unknown. Second, on a dyadic level, Copeland's (1996, 2000) theory of trade expectations suggests that ' future expectation of trade' is a
significant variable in understanding economic conditions and security behaviour of states. He argues that interdependent states are
likely to gain pacific benefits from trade so long as they have an optimistic view of future trade relations. However, if the expectations of future trade decline,

particularly for difficult to replace items such as energy resources, the likelihood for conflict increases, as states will be inclined to use force

to gain access to those resources. Crises could potentially be the trigger for decreased trade expectations either on its own or because it
triggers protectionist moves by interdependent states.4 Third, others have considered the link between economic decline and external armed

conflict at a national level. Blomberg and Hess (2002) find a strong correlat ion between internal conflict and external
conflict, particularly during periods of economic downturn . They write: The linkages between internal and external conflict and prosperity are strong and
mutually reinforcing. Economic conflict tends to spawn internal conflict, which in turn returns the favour. Moreover, the presence of a recession tends to amplify

the extent to which international and external conflicts self-reinforce each other. (Blomberg & Hess, 2002. p. 89) Economic
decline has also been linked with an increase in the likelihood of terrorism (Blomberg, Hess, & Weerapana, 2004), which has the capacity to
spill across borders and lead to external tensions. Furthermore, crises generally reduce the popularity of a sitting government. "Diversionary theory" suggests that, when

facing unpopularity arising from economic decline, sitting governments have increased incentives to fabricate
external military conflicts to create a 'rally around the flag' effect. Wang (1996), DeRouen (1995). and Blomberg, Hess, and Thacker (2006) find
supporting evidence showing that economic decline and use of force are at least indirectly correlated. Gelpi (1997), Miller (1999), and Kisangani and Pickering (2009) suggest that the
tendency towards diversionary tactics are greater for democratic states than autocratic states, due to the fact that democratic leaders are generally
more susceptible to being removed from office due to lack of domestic support. DeRouen (2000) has provided evidence showing that periods of weak economic

performance in the U nited S tates, and thus weak Presidential popularity, are statistically linked to an increase in the use of force. In
summary, recent economic scholarship positively correlates economic integration with an increase in the frequency of economic crises, whereas political science scholarship

links economic decline with external conflict at systemic, dyadic and national levels.5 This implied connection between integration,
crises and armed conflict has not featured prominently in the economic-security debate and deserves more attention.
Econ---A-to: No Impact Collapse Slow

Nature of international relations means that conflict will arise fast from collapse
Turpin 8
Craig Turpin, Executive editor of New Jersey newspapers, 10/14 2008, Critical Mass: Economic leadership or
dictatorship, http://www.nj.com/cranford/index.ssf/2008/10/critical_mass_economic_leaders.html

A global economic collapse will also increase the chance of global conflict. As economic systems shut down,
so will the distribution systems for resources like petroleum and food. It is certainly within the realm of
possibility that nations perceiving themselves in peril will, if they have the military capability, use force, just as
Japan and Nazi Germany did in the mid-to-late 1930s. Every nation in the world needs access to food and water. Industrial nations
-- the world powers of North America, Europe, and Asia -- need access to energy. When the world economy runs
smoothly, reciprocal trade meets these needs. If the world economy collapses, the use of military force becomes a more
likely alternative. And given the increasingly rapid rate at which world affairs move; the world could devolve to
that point very quickly.
Econ---A-to: No Great Power Draw In
Decline snowballs conflict
Auslin 9 (Michael, Resident Scholar American Enterprise Institute, and Desmond Lachman Resident Fellow
American Enterprise Institute, The Global Economy Unravels, Forbes, 3-6, http://www.aei.org/article/100187)

What do these trends mean in the short and medium term? The Great Depression showed how social and global chaos followed hard on
economic collapse. The mere fact that parliaments across the globe, from America to Japan, are unable to make responsible, economically
sound recovery plans suggests that they do not know what to do and are simply hoping for the least disruption. Equally worrisome is the adoption
of more statist economic programs around the globe, and the concurrent decline of trust in free-market systems. The threat of instability is
a pressing concern. China, until last year the world's fastest growing economy, just reported that 20 million migrant laborers lost their jobs.
Even in the flush times of recent years, China faced upward of 70,000 labor uprisings a year. A sustained downturn poses
grave and possibly immediate threats to Chinese internal stability. The regime in Beijing may be faced with a choice of
repressing its own people or diverting their energies outward, leading to conflict with China's neighbors. Russia, an oil state completely
dependent on energy sales, has had to put down riots in its Far East as well as in downtown Moscow. Vladimir Putin's rule has
been predicated on squeezing civil liberties while providing economic largesse. If that devil's bargain falls apart, then wide-scale repression
inside Russia, along with a continuing threatening posture toward Russia's neighbors, is likely. Even apparently stable societies
face increasing risk and the threat of internal or possibly external conflict. As Japan's exports have plummeted by nearly 50%, one-third of the
country's prefectures have passed emergency economic stabilization plans. Hundreds of thousands of temporary employees hired during the first
part of this decade are being laid off. Spain's unemployment rate is expected to climb to nearly 20% by the end of 2010; Spanish unions are
already protesting the lack of jobs, and the specter of violence, as occurred in the 1980s, is haunting the country. Meanwhile, in Greece, workers
have already taken to the streets. Europe as a whole will face dangerously increasing tensions between native citizens and
immigrants, largely from poorer Muslim nations, who have increased the labor pool in the past several decades. Spain has absorbed five million
immigrants since 1999, while nearly 9% of Germany's residents have foreign citizenship, including almost 2 million Turks. The xenophobic labor
strikes in the U.K. do not bode well for the rest of Europe. A prolonged global downturn, let alone a collapse, would
dramatically raise tensions inside these countries. Couple that with possible protectionist legislation in the United States,
unresolved ethnic and territorial disputes in all regions of the globe and a loss of confidence that world leaders actually know
what they are doing. The result may be a series of small explosions that coalesce into a big bang .

Multiple scenarios for nuclear war


Kemp 10 (Geoffrey, Director of Regional Strategic Programs Nixon Center and Former Director of the Middle
East Arms Control Project Carnegie Endowment for International Peace, The East Moves West: India, China, and
Asias Growing Presence in the Middle East, p. 233-234)

The second scenario, called Mayhem and Chaos, is the opposite of the first scenario; everything that can go wrong does go wrong. The world
economic situation weakens rather than strengthens, and India, China, and Japan suffer a major reduction in their growth rates, further
weakening the global economy. As a result, energy demand falls and the price of fossil fuels plummets, leading to a financial crisis for
the energy-producing states, which are forced to cut back dramatically on expansion programs and social welfare. That in turn leads to
political unrest: and nurtures different radical groups, including, but not limited to, Islamic extremists. The internal stability of some
countries is challenged, and there are more failed states. Most serious is the collapse of the democratic government in Pakistan
and its takeover by Muslim extremists, who then take possession of a large number of nuclear weapons. The danger of war
between India and Pakistan increases significantly. Iran, always worried about an extremist Pakistan, expands and weaponizes
its nuclear program. That further enhances nuclear proliferation in the Middle East, with Saudi Arabia, Turkey, and Egypt
joining Israel and Iran as nuclear states. Under these circumstances, the potential for nuclear terrorism increases, and the possibility of a
nuclear terrorist attack in either the Western world or in the oil-producing states may lead to a further devastating collapse of the
world economic market, with a tsunami-like impact on stability. In this scenario, major disruptions can be expected, with
dire consequences for two-thirds of the planets population

Economic decline causes great power wars


Patrick 9
(Protecting Free Trade by Stewart Patrick, 03.13.2009, Stewart Patrick, senior fellow and director of the Program
on International Institutions and Global Governance at the Council on Foreign Relations, is the author of The Best
Laid Plans: The Origins of American Multilateralism and the Dawn of the Cold War (Rowan & Littlefield).
As never before, U.S. national security
President Obama has committed to working with U.S. trade partners to avoid escalating protectionism. He is wise to do so.
requires a commitment to open trade. President Obama and his foreign counterparts should reflect on the lessons of
the 1930sand the insights of Cordell Hull. The longest-serving secretary of state in American history (1933
1944), Hull helped guide the United States through the Depression and World War II. He also understood a
fundamental truth: When goods move, soldiers dont. In the 1930s, global recession had catastrophic political
consequencesin part because policymakers took exactly the wrong approach. Starting with Americas own Smoot Hawley Tariff of 1930,
the worlds major trading nations tried to insulate themselves by adopting inward looking protectionist and
discriminatory policies. The result was a vicious, self-defeating cycle of tit-for-tat retaliation. As states took refuge in
prohibitive tariffs, import quotas, export subsidies and competitive devaluations, international commerce devolved into a desperate competition for dwindling markets. Between 1929 and 1933,
the value of world trade plummeted from $50 billion to $15 billion. Global economic activity went into a death spiral, exacerbating the depth and length of the Great Depression. The economic
consequences were worse. As Hull recognized, global economic fragmentation
consequences of protectionism were bad enough. The political
lowered standards of living, drove unemployment higher and increased povertyaccentuating social upheaval and
leaving destitute populations easy prey to dictators and desperadoes. The rise of Nazism in Germany, fascism in
Italy and militarism in Japan is impossible to divorce from the economic turmoil, which allowed demagogic leaders
to mobilize support among alienated masses nursing nationalist grievances. Open economic warfare poisoned the
diplomatic climate and exacerbated great power rivalries, raising, in Hulls view, constant temptation to use force,
or threat of force, to obtain what could have been got through normal processes of trade. Assistant Secretary
William Clayton agreed: Nations which act as enemies in the marketplace cannot long be friends at the council
table. This is what makes growing protectionism and discrimination among the worlds major trading powers
today so alarming. In 2008 world trade declined for the first time since 1982 . And despite their pledges, seventeen G-20 members have adopted
significant trade restrictions. Buy American provisions in the U.S. stimulus package have been matched by similar measures elsewhere, with the EU ambassador to Washington declaring that
Nobody will take this lying down. Brussels has resumed export subsidies to EU dairy farmers and restricted imports from the United States and China. Meanwhile, India is threatening new
tariffs on steel imports and cars; Russia has enacted some thirty new tariffs and export subsidies. In a sign of the global mood, WTO antidumping cases are up 40 percent since last year. Even
less blatant forms of economic nationalism, such as banks restricting lending to safer domestic companies, risk shutting down global capital flows and exacerbating the current crisis. If
such economic nationalism could raise diplomatic tensions among the worlds major powers. At
unchecked,
particular risk are U.S. relations with China, Washingtons most important bilateral interlocutor in the twenty-first
century. China has called the Buy American provisions poisonnot exactly how the Obama administration wants to start off the relationship. U.S. Treasury Secretary Timothy
Geithners ill-timed comments about Chinas currency manipulation and his promise of an aggressive U.S. response were not especially helpful either, nor is Congress preoccupation with
unfair Chinese trade and currency practices. For its part, Beijing has responded to the global slump by rolling back some of the liberalizing reforms introduced over the past thirty years. Such
The Obama administration must find common ground with
practices, including state subsidies, collide with the spirit and sometimes the law of open trade.
Beijing on a coordinated response, or risk retaliatory protectionism that could severely damage both economies and
escalate into political confrontation. A trade war is the last thing the United States needs, given that China holds $1
trillion of our debt and will be critical to solving flashpoints ranging from Iran to North Korea. In the 1930s,
authoritarian great-power governments responded to the global downturn by adopting more nationalistic and
aggressive policies. Today, the economic crisis may well fuel rising nationalism and regional assertiveness in
emerging countries. Russia is a case in point. Although some predict that the economic crisis will temper Moscows international ambitions, evidence for such
geopolitical modesty is slim to date. Neither the collapse of its stock market nor the decline in oil prices has kept Russia from
flexing its muscles from Ukraine to Kyrgyzstan. While some expect the economic crisis to challenge Putins grip on power, there is no guarantee that Washington
will find any successor regime less nationalistic and aggressive. Beyond generating great power antagonism, misguided protectionism could
also exacerbate political upheaval in the developing world. As Director of National Intelligence Dennis Blair
recently testified, the downturn has already aggravated political instability in a quarter of the worlds nations. In
many emerging countries, including important players like South Africa, Ukraine and Mexico, political stability
rests on a precarious balance. Protectionist policies could well push developing economies and emerging
market exporters over the edge. In Pakistan, a protracted economic crisis could precipitate the collapse of the
regime and fragmentation of the state.
Econ---A-to: No Nuke War
Yes nuclear war from decline
Merlini 11
Cesare Merlini 11, nonresident senior fellow at the Center on the United States and Europe and chairman of the
Board of Trustees of the Italian Institute for International Affairs, May 2011, A Post-Secular World?, Survival,
Vol. 53, No. 2
Two neatly opposed scenarios for the future of the world order illustrate the range of possibilities, albeit at the risk of oversimplification. The first scenario entails the premature crumbling
One or more of the acute tensions apparent today evolves into an open and traditional conflict
of the post-Westphalian system.

between states, perhaps even involving the use of nuclear weapons. The crisis might be triggered by a collapse of
the global economic and financial system, the vulnerability of which we have just experienced, and the prospect of a second Great
Depression, with consequences for peace and democracy similar to those of the first. Whatever the trigger, the unlimited
exercise of national sovereignty, exclusive self-interest and rejection of outside interference would self-interest and rejection of
outside interference would likely be amplified, empty ing, perhaps entirely, the half-full glass of multilateralism , including the UN and the European
Union. Many of the more likely conflicts, such as between Israel and Iran or India and Pakistan, have potential religious dimensions. Short of war, tensions such as those related to
Familiar issues of creed and identity could be exacerbated . One way or another, the secular rational
immigration might become unbearable.
approach would be sidestepped by a return to theocratic absolutes, competing or converging with secular absolutes such as
unbridled nationalism .

Depression causes global nuclear war


Mead 9
(Walter Russell, Henry A. Kissinger Senior Fellow in U.S. Foreign Policy Council on Foreign Relations, Only
Makes You Stronger, The New Republic, 2-4, http://www.tnr.com/politics/story.html?id=571cbbb9-2887-4d81-
8542-92e83915f5f8&p=2)
The greatest danger both to U.S.-China relations and to American power itself is probably not that China will rise too far, too fast; it is that the current crisis might end China's growth miracle. In
the worst-case scenario, the turmoil in the international economy will plunge China into a major economic downturn . The Chinese
financial system will implode as loans to both state and private enterprises go bad. Millions or even tens of millions of Chinese will be unemployed in a country without an effective social safety
The political consequences could
net. The collapse of asset bubbles in the stock and property markets will wipe out the savings of a generation of the Chinese middle class.
include dangerous unrest--and a bitter climate of anti-foreign feeling that blames others for China's woes. (Think of Weimar Germany, when both Nazi and communist
politicians blamed the West for Germany's economic travails.) Worse, instability could lead to a vicious cycle, as nervous investors moved their money out of the country, further slowing growth
and, in turn, fomenting ever-greater bitterness. Thanks to a generation of rapid economic growth, China has so far been able to manage the stresses and conflicts of modernization and change;
nobody knows what will happen if the growth stops. India's future is also a question. Support for global integration is a fairly recent development in India, and many serious
Indians remain skeptical of it. While India's 60-year-old democratic system has resisted many shocks, a deep economic recession in a country where mass poverty and even hunger are still major
concerns could undermine political order, long-term growth, and India's attitude toward the United States and global economic integration. The violent Naxalite insurrection plaguing a significant
swath of the country could get worse; religious extremism among both Hindus and Muslims could further polarize Indian politics; and India's economic miracle could be nipped in the bud. If
current market turmoil seriously damaged the performance and prospects of India and China, the current crisis could join the Great Depression in the list of economic events that changed history,
even if the recessions in the West are relatively short and mild. The United States should stand ready to assist Chinese and Indian financial authorities on an emergency basis--and work very hard
to help both countries escape or at least weather any economic downturn. It may test the political will of the Obama administration, but the United States must avoid a protectionist response to
the economic slowdown. U.S. moves to limit market access for Chinese and Indian producers could poison relations for years. For billions of people in nuclear-armed
countries to emerge from this crisis believing either that the United States was indifferent to their well-being or that it had profited from their distress could damage
U.S. foreign policy far more severely than any mistake made by George W. Bush. It's not just the great powers whose trajectories have been affected by the crash. Lesser powers like
Saudi Arabia and Iran also face new constrain