On January 12, 2016 House Judiciary Committee Chairman Bob Goodlatte (R-Va.) "announced the creation of a Task Force on Executive Overreach to examine the historic breakdown of the separation of powers and checks and balances that has led to the unprecedented increase in presidential power and executive overreach."  Part of the Task Force's mission is to "study the impact the increase in presidential and executive branch power has had on the ability of Congress to conduct oversight of the executive branch, the lack of transparency that furthers unchecked executive power, and the constitutional requirement of the President to faithfully execute the law." 

Which is why it is so painfully ironic that this Task Force on Executive Overreach shut down a reasoned legal argument about the very behavior it is supposed to rein in. 

On May 24, 2016 law professor Gail Heriot gave testimony to the U.S. House Taskforce on Executive Overreach describing the latest Obama edict on transgender guidance.  In her 21-page testimony, Heriot spoke "as an individual member of the United States Commission on Civil Rights and not on behalf of the Commission as a whole" stating that "Congress has succumbed to the temptation to confer more discretion on executive branch agencies" and this has severely damaged the separation of powers so integral to America's governance. 

Furthermore, Heriot describes the many administrative agencies that grab power that was never conferred to them via the Constitution.  Thus, "the Equal Employment Opportunity Commission (EEOC) has . . . managed to transform what was supposed to be a limitation on its power into a greater power . . . by issuing 'guidances,' which are devilishly difficult to challenge in court."  Consequently, "resistance by employers is usually futile." 

Part of Heriot's testimony concerns sexual violence guidance and she made it "crystal clear" that she "regarded sexual violence as deplorable."  Heriot diligently explains that the Department of Education's Office for Civil Rights (OCR) is "imposing its own policy preferences in the name of enforcing Title IX."  In fact, Heriot is trying to safeguard the rights of accused students in sexual harassment disciplinary proceedings now that cross- examination on due process grounds is being "discouraged" by this same OCR and "vague harassment standards" are instead being used to push their agenda.

Heriot's testimony about "The Transgender Guidance" maintains that "it would be an understatement to say that the Transgender Guidance goes beyond what Title IX . . . passed in 1972, actually requires."  Thus, "[i]f someone had said in 1972 that one day Title IX would be interpreted to force schools to allow anatomically intact boys who psychologically 'identify' as girls to use the girls’ locker room, he would have been greeted with hoots of laughter. OCR is simply engaged in legislating."

For her concern about adherence to the Constitution and the damage of a continuing over-reach of the executive branch, Heriot was told by California Representative Zoe Lofgren that she "really doesn’t know anything and probably has never met a transgender child who is going through, in almost every case, a very difficult experience finding themselves."  Then Lofgren's final volley was to claim that Heriot was "a bigot, . . . an ignorant bigot." 

This, even after Heriot explained:

"[I]n the 1970s, nobody would have thought that a girl and an anatomical boy who thinks of himself as a girl were members of the same 'sex.' They would have said the girl was a girl, and the boy, no matter how feminine he might be, was a boy. This is not to say that they would not have cared about such a student’s welfare or that they would not have recognized that his 'gender dysphoria' (as it is called in DSM) might sometimes require that special provisions be made. But they never would have said that such a student was in fact 'a girl' or that if a school failed to group him with the actual girls for the purposes of 'separate toilet, locker room, and shower facilities' organized 'on the basis of sex' that it was misclassifying him. OCR has not pointed to a single case in which anyone during the 1970s used the statutory terms 'sex' or 'discrimination,' in a manner consistent with the Transgender Guidance."

In fact, Heriot demonstrated:

"that the term 'transgender' was coined specifically to contrast with the term 'transsexual' and was intended to describe individuals who had adopted the habits and traits of the opposite sex without having actually attempted to cross over into 'becoming' a member of the opposite sex (such as through surgical alteration of the body)."   

One wonders if this lucid explanation was simply too logical and educational for the likes of Representative Lofgren.  At no time did Heriot show anything but compassion.  Her point was that the OCR "has pushed past the limits of its legal authority."  Title IX clearly states:

"a recipient may provide separate toilet, locker room, and other facilities on the basis of sex [.]"  In fact, the "words gender, gender identity and transgender do not appear in Title IX. "

But,

"over the years, the concept of 'gender' has been used, particularly in the LGBT community, specifically as a contrast with the concept of 'sex.' While 'sex' is seen as a biological term, 'gender' is seen as a term that refers to various cultural traits associated with sex, but separate from sex itself. Nothing highlights the fact that the two concepts are different better than the term 'cisgender,' which had to be coined in the 1990s in order to describe those individuals whose gender and sex match."

But in the world of leftist thinking, "When [they] use a word,” “it means just what [they] choose it to mean — neither more nor less."
"The question is," . . . "whether you can make words mean so many different things."
"The question is," . . . "which is to be master – – that’s all."

Thus, create the words to fit the leftist agenda.

To be called a "bigot" actually flies in the face of Heriot's concern for transgender students as exemplified when she stated that "[m]aking up law on the fly" is a perilous endeavor because if "Title IX really forbids gender identity discrimination, that will not always work to the benefit of transgender students." Repeatedly in her testimony, Heriot exhorts that "the bottom line is that a mere guidance cannot impose new duties on regulated persons not contained in the original statute [.]  That can only be done, if at all, by rule."  And "there are serious limits on the ability of the Department of Education's Office for Civil Rights (OCR) to simply adopt its own policy preferences [.]"

Most telling was when Representative Lofgren maintained that she did "not want to get into a debate" about Heriot's points.  One is reminded of David Horowitz's claim that "inside every liberal is a totalitarian screaming to get out."  Instead of a cogent debate, Lofgren fell back on the standard militant leftist response to call anyone with a different viewpoint a bigot.  

And, finally, Heriot asserts that "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 [emphasis mine].  But it’s one thing to butt out of an individual’s decision to dress and behave like a member of the opposite sex and it is quite another to declare that this makes that individual an actual member of the opposite sex and mandate that every federally funded school in America act accordingly."

And, finally Heriot is genuinely concerned that such a ruling will, in fact, encourage "pranksters and voyeurs" claiming to be transgender, thus endangering all students.

Heriot highlights the financial noose that OCR tightens when schools do not conform.  The idea that federal funding would be withheld if OCR does not get its way demonstrates the coercive power the federal government now wields.  It is "an astonishing annexation of new power to the federal government."

Not surprising, "several left-wing blogs . . .  characterized Lofgren’s remarks as an 'epic smack-down.' The report 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."

Yet, Stanley Kurtz writes that Heriot's "evidence establishes "that the Obama administration's transgender guidance goes far beyond the intent of the 1972 law, and amounts to a usurpation of the legislative powers of Congress."  

It is, as Heriot explains, "hard to see how one might oppose [making government accountable] - - unless of course one believes that the executive branch should be able to operate without judicial supervision. People who believe this should be forced to acknowledge it in public."

Et tu, Lofgren.

The National Association of Scholars (NAS)) under the aegis of Peter Wood, has issued a statement of support for Gail Heriot, maintaining that

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. 

Blurring of the separation of powers, ignoring American rule of law, displays of uncivil behavior, and not adhering to logical argumentation but instead relying on emotional outbursts -- these describe what goes on in the halls of the government these days. 

I wish to extend my moral support to Gail Heriot and urge others to do the same.

Eileen can be reached at middlemarch18@gmail.com