The Curious Cases of Law Professors Who Know Nothing About Biology but Speak Publicly Anyway

Over the past few weeks four incidents involving law professors coming out strongly against trans civil rights have occurred. It's a surprising phenomenon, considering that the law is pretty clear today and these so-called legal experts are going public in support of bigotry grounded in ignorance. One would think that professors of law, particularly from elite universities like Harvard and Georgetown, would make the effort to study the topic before they embarrass themselves.

Alas, no.

The most recent was Professor Gregg Bloche of Georgetown in The Washington Post, entitled "Transgender Law Shouldn't be Written by Psychiatrists." Professor Bloche followed the common theme of attacking the Justice Department's expansive modern interpretation of the phrase "because of sex" from the 1964 Civil Rights Act. Missing the point that federal courts of the past twelve years have increasingly defined "sex" to include gender identity, and, therefore, putting the onus on the "intrusive" federal government, he states that sex deals only with anatomy. What he, trained in psychiatry, by the way, fundamentally misses is that anatomy (and physiology, to be more precise) is not just limited to genitals; human beings are composed of more than just genitals, and in this instance the other, more important, organ for consideration is the brain.

Gender identity, as is well known and was described by the Department of Justice in their recent complaint against Governor McCrory and the state of North Carolina, is a function of brain sex. It is not a function of "identity," as Professor Bloche blithely proclaims. The brain is a human organ, just like the genitals. Gender identity is rooted in the brain, as proven by two decades of brain research, and every human being has a gender identity.

Even Professor Bloche has a gender identity. I presume that he's male, and I also presume, based on statistics, that his genitals are also male. I don't really know, however, and it doesn't matter. His gender identity makes him a man, just as mine makes me a woman; our genitals are irrelevant. That is the science of gender identity, science that is now recognized by the American psychiatric, psychologic, and general medical professions. When the psychiatric community acts on the basis of science research, updating its understanding from the 70's, we call that science. It's not politics, as Professor Bloche believes, describing trans civil rights protections as simply the result of the American Psychiatric Association's rewriting the diagnostic code in 2011. (He conveniently ignored the fact that they did so with homosexuality in 1973, but in the aftermath of Orlando I suppose that's to be expected). That's called progress, not uncontrolled liberalism or political correctness or federal government overreach. And it didn't happen "with one stroke," as he claims, but after decades of education of the psychiatric community (I happen to be in Amsterdam today for the biannual meeting of the World Professional Association for Transgender Health where all those psychiatrists gather) by the likes of Kelley Winters and others, including myself, bringing the latest scientific data to bear on a very conservative institution. The professor should be praising the American Psychiatric Association (APA) for having taken so long to get it right, not inferring that they acted in the dead of night so the Obama administration could "smuggle in" trans protections.

It also must be stated that the administration did not wait for the APA; they acted, beginning in 2009, based on federal court decisions such as Smith v. City of Salem, Schroer v. Billington, Glenn v. Brumby, Macy v. Holder, and Lusardi v. Department of the Army. If anything, the President and Justice were late to the party, at least in their public trumpeting of the modern interpretation of "sex."

And it is that interpretation of "sex," based on science, that has become determinative; not, as Professor Bloche says,

Whether "sex" is a matter of anatomy or identity is a cultural or moral question, not a matter of medical fact.

"Sex" is a matter of medical science, not a moral question, and it might help the professor and this country if he left his phallo-fixation at home.

The second bizarre attack was by Jeannie Suk, a professor of law at Harvard. An Asian-American woman, you'd think she might be a bit more sensitive. But she writes, in The New Yorker, about the "looming Title IX crisis." As a professor of law she should understand the history from 2004 as I laid it out above, and recognize that there is no crisis except in the fevered mind of southern medievalists.

She, too, beginning in her lede, makes the fatal definition of "biological sex" as being solely determined by genitalia. Starting from this false premise, she continues to define trans women as men, and claims that some women may have a Title IX claim that men in female-segregated spaces create a hostile environment; in that case, the Feds would be caught between a rock and a hard place. But since there is no conflict, as trans women are not men, the problem disappears.

I give her credit for having her heart in the right place, because she recognizes that

The common denominator in all of these scenarios is fear of attacks and harassment carried out by males--not fear of transgender people.

But since the only fear is that of trans women being forced into men's rooms, (and not, by the way, that trans men would be assaulted in men's rooms; few trans men are worried about that), the problem is easily fixed by having professors like her explain the concept of gender identity. Then cisgender girls won't fear transgender girls.

Unless, of course, they are the children of the former Executive Director of the Georgia ACLU, and now a poster girl for the religious right, Maya Dillard Smith. An African-American woman, who clearly should know better given the history outlined by Attorney General Lynch in her announcement of the suit against North Carolina, she quit her position after discovering that she was "principally and philosophically unaligned with the organization," specifically its dedication to achieving equal rights for transgender people.

Here was a civil rights activist from way back in her California days who jumped to the conclusion that several women with deep voices had malicious intent towards her daughter in the women's room. How is that possible? How can the leader of a state ACLU chapter be so ignorant? I generally refrain from calling anyone bigoted, but given the haste with which she signed onto the anti-trans referendum campaign in Washington state I see no alternative. This is absolutely stunning coming from a graduate of the University of California at Berkeley.

Finally, we have the member of the United States Commission on Civil Rights, Gail Heriot, a white woman, who teaches at a Catholic college in San Diego. Law professor Heriot had the gall to pull a full-Zucker, claiming

If I believe that I am a Russian princess, that doesn't make me a Russian princess, even if my friends and acquaintances are willing to indulge my fantasy.

Former Director of the former Centre for Addiction and Mental Health in Toronto, Dr. Ken Zucker, was notorious for using a similar analogy, calling it Racial Identity Disorder - if a black child comes to me and insists he's really white, I'm not going to coddle him and feed his fantasy. Variations used by reactionary psychiatrists have included children believing they're chickens, rabbits, etc., with the analogy always being used to denigrate and shame the trans child and her parents (its always her parents, because gender-variant girls don't present any problems to Dr. Zucker and his colleagues).

Fortunately, California Congresswoman Zoe Lofgren would not hear of it, and called Professor Heriot a bigot:

I think you're a bigot, lady, I think you are an ignorant bigot.

I will sum it up with two quotes, the first from Jelani Cobb in The New Yorker, who sounds as if he's speaking directly to Ms. Smith:

Consider the political implications of an African-American woman, the first to hold the office of Attorney General, informing a white Governor that his state's policy toward the transgender population is reminiscent of the days of de jure racial discrimination. North Carolina - with its banking center in Charlotte, its substantial black middle class, and its elite universities - esteems its identity as part of the South too forward-looking to be defined by bygone bigotries. Lynch called that premise into question. She could have taken the point further: North Carolina was more than willing to countenance "all-gender" bathrooms when they served the purposes of racial segregation. Jim Crow legislation culminated in separate bathrooms for white men and white women, but only a single "colored" rest room for African-Americans, whatever their gender. (italics mine).

The second comes from Vanita Gupta, the Assistant Attorney General for Civil Rights, who simplifies the issue and completely mitigates any social or legal problems:


Transgender men are men - they live, work and study as men. Transgender women are women - they live, work and study as women.

The behavior of professors such as these four has been unacceptable for many years, but after Orlando I can only hope none is left with the chutzpah to be so publicly ignorant and such a disgrace to the legal profession.