NAS Defends Gail Heriot in Transgender Controversy

NAS

New York, NY (May 27, 2016)Peter Wood, the president of the National Association of Scholars, has responded with the following statement to the controversy over Professor Heriot’s May 24, 2016 testimony to the U.S. Taskforce on Executive Overreach:

On Tuesday Gail Heriot, a professor of law at the University of San Diego and a board member of the National Association of Scholars, gave testimony to the U.S. House Taskforce on Executive Overreach criticizing new guidance on restrooms and locker rooms for transgendered individuals. Professor Heriot testified that the Department of Education’s Office for Civil Rights (OCR) had overstepped its legal authority in issuing its May 13 “Dear Colleague” letter, which requires all schools to allow students to use the restroom and locker room of their choice, regardless of biological sex.

In the questioning that followed Professor Heriot’s prepared statement, California Representative Zoe Lofgren attacked Professor Heriot’s testimony as “offensive.” Lofgren continued, "I think you’re a bigot, lady. I think you are an ignorant bigot."  Lofgren was particularly upset that Professor Heriot’s remarks would become part of the committee’s official record. The chairman of the Taskforce, Representative Steve King (Iowa), responded to Lofgren’s outburst by calling the meeting to order and asked Lofgren to refrain from “calling names.” Lofgren, however, persisted and announced she could “not allow that kind of bigotry to go unchallenged.”

Several left-wing blogs quickly reported on the event. Brad Reed, writing at Raw Story, characterized Lofgren’s remarks as an “epic smack-down.” The reports set off a cascade of hate mail to Professor Heriot, including death threats and a writer urging her to commit suicide. Stephen C. Ferruolo, the dean of the law school at the University of San Diego, has also received demands that he fire Professor Heriot.

The National Association of Scholars strongly supports Professor Heriot. Her invited testimony to the U.S. House Taskforce on Executive Overreach was well crafted and represents carefully considered views well within her professional expertise. In no way did Professor Heriot present “bigoted” statements on sexual identity. Rather, she gave a history of the OCR’s past disregard for legal limits to its authority and traced the history of the law regarding transgender individuals. She also noted that the concept of “transgender” did not enter the legal vocabulary until many years after the passage of Title IX, which OCR claims as the basis for its authority to issue its “Dear Colleague” letters.

Lofgren’s outburst was outrageous. It violated the standards of civility of the U.S. House of Representatives. And it was especially inappropriate in view of the temperate character of Professor Heriot’s remarks. It is perhaps too much to hope that Representative Lofgren will apologize for her antics as they seem to have served her purpose in exciting her progressive base. Other observers will take note of her abuse of her authority.

We expect the University of San Diego to disregard the calls to remove Professor Heriot from her position.

The National Association of Scholars recognizes Professor Heriot’s outstanding work on behalf of civil rights in America and her determination to uphold the rule of law during a period in which the executive has frequently abused it. 

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