The Corner

Politics & Policy

Zoe Lofgren’s Epic Cheap-Shot at Gail Heriot

Liberal websites have been abuzz for the last couple days about a confrontation at a House hearing on the Obama administration’s controversial guidance letter on transgender bathrooms. Representative Zoe Lofgren, a Democrat from San Jose, California, attacked University of San Diego Law Professor Gail Heriot, who was testifying in her capacity as an individual member of the U.S. Commission on Civil Rights. Rather than rebut the substance of Heriot’s prepared testimony, Lofgren read a brief passage out loud and called it offensive. When Heriot tried to reply, Lofgren silenced her and shouted, “I think you are a bigot, lady. I think you are an ignorant bigot.” Leftists are touting this as an “epic smackdown,” but it’s really an epic cheap-shot.

Heriot is a thoughtful and courageous conservative whose public work consistently meets the highest intellectual standards. (Consider this 2013 piece on affirmative action from National Affairs.) Her written testimony before this week’s hearing of the House Task Force on Executive Overreach is powerful and well worth your consideration. Lofgren’s antics did Heriot a great injustice. Her testimony in no way made a “bigoted” case.

Lofgren’s most revealing remark during her exchange with Heriot was, “I don’t want to get into a debate about it.” Exactly. Heriot’s case was too powerful for Lofgren to take on directly, so instead she pulled a passage out of context and yelled bigotry. This has become the standard-issue leftist response to thoughtful conservative arguments on almost all issues. The left is treating Lofgren as a hero because she’s given the purest possible example of how to “win” an argument with a conservative by not really arguing at all.

Let’s try looking at what Heriot actually said.

The first part of Heriot’s prepared testimony reviews the legal and philosophical roots of legislative power, showing how democracy itself is undermined by executive usurpation of the law-making function. Then, in a section on the Office of Civil Rights’ enforcement of various laws, Heriot explains how and why executive usurpation of the legislative function has become endemic. After a review of the controversy over Title IX and sexual violence on college campuses, Heriot takes up the Obama administration’s newly-issued guidance on transgender students and bathrooms.

Heriot makes a powerful case that the Obama administration’s guidance far exceeds the requirements of Title IX. Above all, Heriot notes that Title IX’s original prohibition of discrimination on the basis of sex is subject to a clear exception spelled out in the law itself: “Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.”

Heriot also cites an implementation rule approved by President Gerald Ford: “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.” Heriot then uses this and other evidence to establish that the Obama administration’s transgender guidance goes far beyond the intent of this 1972 law, and amounts to a usurpation of the legislative powers of Congress.

This helps establish the true context for the statement that Lofgren attacked. At that point in her argument, Heriot had shown that the Obama administration’s transgender guidance could not be justified on any reasonable reading of Title IX’s prohibition of sexual discrimination. That leaves only one theoretical route by which the new guidance could be justified—a claim that a male student who “identifies” as a female actually is a female.

Heriot explores this theoretical possibility and dismisses it. Here is where she says that “If I believe I’m a Russian princess, that doesn’t make me a Russian princess, even if my friends and acquaintances are willing to indulge my fantasy.” This is the line that Lofgren quoted and excoriated.

But Lofgren didn’t read the passage that immediately followed: “I should add that very few actual transgender individuals are confused in this way. They understand perfectly that their sex and their gender do not align. Some choose surgery to make their bodies better align with their gender. Most choose not to.”

In other words, Heriot was exploring a legal argument. She had already shown that the administration’s attempt to justify its transgender bathroom guidance as a fulfillment of Title IX’s prohibition on sexual discrimination couldn’t stand up. Both the 1972 law itself, and contemporaneous rulemaking based on the law, allowed for separate bathrooms. With that justification disposed of, Heriot began exploring the only other theoretical option for justifying the guidance: the idea that transgender students weren’t just people who felt a disconnect between their sense of identity and their birth sex, but actually were physically something other than their birth sex. That’s when Heriot noted that this belief was extremely rare, even among transgender individuals: “I should add that very few actual transgender individuals are confused in this way. They understand perfectly that their sex and their gender to not align.”

I don’t think the passage Lofgren read out loud would have been “bigoted,” even if it had been presented in isolation. Nonetheless, it’s important to note that Lofgren left off reading Heriot’s testimony when including just one more sentence (“I should add, that very few actual transgender individuals are confused in this way.”) would have made it very difficult to stir up public fury. That passage from Heriot truly was ripped out of context in a deceptive way.

Lofgren also left out a key section from the paragraph immediately preceding the passage she read out loud: “Don’t get me wrong,” says Heriot, “There is no reason in the world that any federal, state, or local government should be telling anyone that he or she needs to conform to the expectations of others regarding members of his or her sex. That’s what freedom is all about.” This libertarian call for the government to butt out of gender identity issues hardly conforms to Lofgren’s charge of bigotry.

A note on the same page of Heriot’s testimony also contains the following passage: “Note that I agree with OCR that Price Waterhouse is valid precedent for its conclusion that transgender students cannot be penalized for their gender non-conforming personality traits and actions.”

In short, Lofgren demagogued a powerful, nuanced, and decidedly non-bigoted argument by selecting a quote, while omitting critically important qualifications that would have made it far more difficult to stir up public anger, including the critical sentence immediately following the quote in question.

Again, I don’t think it’s “bigoted” for people in the course of public debate to invoke colorful analogies like the “Russian princess” example, even without the many and complex qualifications offered by Heriot. Trying to outlaw that kind of talk is exactly how the left tries to shut down legitimate debate. But in Heriot’s case, not only was Lofgren excoriating a passage that was not in fact bigoted, even if it had been uttered in isolation, she was deeply mischaracterizing and caricaturing a complex legal argument that comes across very differently in context than the way Lofgren made it seem. (For helpful critiques of Lofgren, see Mark Hemingway and Rod Dreher.)

I don’t think Lofgren was capable of dealing with Heriot’s devastating attack on the executive overreach of Obama’s transgender guidance letter. The provision from the original legislation that allows separate bathrooms and the follow-on rule from President Ford simply blow Obama’s case out of the water. What better way to rebut Heriot than by ignoring her substantive case and loudly accusing her of bigotry?

Since Lofgren’s attack, Heriot has been deluged with hate tweets and hate mail, and her law school has been flooded with angry letters, many of which presumably demand her firing or some sort of punishment. This is how the left tries to choke off real debate: false accusations of bigotry and retaliatory attacks designed to scare other critics from following in the target’s footsteps. It’s important that we not bow to that kind of pressure.

Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center. He can be reached at comments.kurtz@nationalreview.com

Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center.

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