18 MARCH 2017



The world witnessed Trump’s malice against his opponents in the presidential campaign. We witnessed his viciousness toward women, minorities, persons with disabilities, immigrants, Muslims, people who disagreed with him and anyone else he was in the mood to mock and belittle. Since he assumed the Bully Pulpit1 his behavior of exploiting what he chooses to see as weakness in others to elevate ratings and himself, or for his pleasure, has not diminished. Now his conduct has consequences. In the process of Making American Great Again, he is retreating us from important progress achieved in civil rights. This post discusses his efforts to implement and sustain institutional bigotry against a most vulnerable community. The way he has done it may seem subtle. The result is not.

After the United States Supreme Court (SCOTUS) sent Gloucester School Board v. G.G back to the Fourth Circuit Court of Appeals, I decided to read the principal appellate briefs to understand why transgender students’ use of restrooms consistent with their gender identity was even an issue. I briefly give my understanding of the case below. Before doing so, however, I confess that from the target’s point of view I have not experienced the hatred and discrimination directed at human characteristics, immutable or otherwise. Nor can I share meaningful insight concerning the ostracism one experiences from the decisions to correct the harsh consequences the dalliance between religion and ignorance imposes on those characteristics. I have never been forced to choose between core authenticity and conformance. (I’m a white guy, natural U.S. citizen, heterosexual, with no obvious disabilities.) But as Kate Kendell said during a recent interview, we all can do something. https://www.youtube.com/watch?v=OZdmiHs73Yw (Kate Kendell on the ongoing impact of the Trump Administration on the LGTB Community). This is my something. I have no answers beyond awareness and education.

During that period when the religious and social hostilities surrounding his son’s gayness broadly destabilized my father’s world, his creativity entered a period largely defined by that disorientation. http://lastamendment.com/2017/02/18/last-amendment-iv-conversion-therapy-for-a-regime-in-disrepair-2/

This less than subtle painting is from that period.

You Gotta Love It Baby, Watercolor, 42.5" x 51", 2000, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

You Gotta Love It Baby and one of its predecessors from the same period together challenge hostile religious and social views about gender identity and sexual orientation, among other issues. At least that’s how I choose to interpret them.

Taking a Dip in the Gene Pool, Watercolor, 40.5" x 49.5", 1995, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust (This painting might also have something to do with human genetic modification and IVF)


I was ignorant of the scientific fact that gender is considerably more complex than physical anatomy. Anatomy is one of its components. A close personal friend whose child was sex-assigned male at birth recently shared with me a heartbreaking but hopeful history of gender dysphoria. Miraculously, my friend reported, his daughter no longer isolates, no longer ideates about suicide, no longer sees mental health professionals, no longer leans on coping mechanisms — dangerous or otherwise — and no longer self-loathes. An array of serious problems mostly solved. I began to learn what many of you, I suspect, already know about gender, gender identity and people who are transgender. Our collective exacerbation of gender dysphoria through ignorance caused me the most disappointment — in myself. To the extent I have permitted or protected my own (and others’) ignorance, I have been part of the problem.

The Human Rights Campaign gives the following definitions:

Gender Identity: “One’s innermost concept of self as male, female, a blend of both or neither — how individuals perceive themselves and what they call themselves. One’s gender identity can be the same or different from their sex assigned at birth.”

Gender Expression: “External appearance of one’s gender identity, usually expressed through behavior, clothing, haircut or voice, and which may or may not conform to socially defined behaviors and characteristics typically associated with being either masculine or feminine.”

Transgender: “An umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex they were assigned at birth. Being transgender does not imply any specific sexual orientation. Therefore, transgender people may identify as straight, gay, lesbian, bisexual, etc.”

Gender Transition: “The process by which some people strive to more closely align their internal knowledge of gender with its outward appearance. Some people socially transition, whereby they might begin dressing, using names and pronouns and/or be socially recognized as another gender. Others undergo physical transitions in which they modify their bodies through medical interventions.”

Gender Dysphoria: “Clinically significant distress caused when a person’s assigned birth gender is not the same as the one with which they identify. According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM), the term — which replaces Gender Identity Disorder — ‘is intended to better characterize the experiences of affected children, adolescents, and adults.’”



This discussion is a little technical and may appear nuanced. Lost in the discussion are the tragic human consequences to the courageous 17-year-old transgender high school student Gavin Grimm and those similarly situated.

Most everyone has heard of Title IX. My vague first memory of it centers on the Ogden School District’s debate concerning how much funding it must divert from boys’ sports to girls’ sports. Boys’ team coaches huffed and puffed.Gloucester School Board v. G.G. falls within Title IX of the Education Amendments Act of 1972. It 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.

The law authorized the Department of Education (DOE), an executive branch agency, to create rules to assure compliance with Title IX. A principal issue in Gloucester centers on the language of a DOE rule created in 1975. That rule authorizes schools to provide “separate toilet . . . facilities on the basis of sex.”

In 2013 the DOE issued an opinion letter (guidance) concerning the meaning of its 1975 rule:

When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.

In January 2015, the DOE issued additional guidance clarifying that restroomsfell within the 2013 advisory, meaning that the only way to assure students equal educational opportunities and make common restrooms truly accessible was to allow transgender students to use restrooms consistent with their gender identity.

Trump withdrew the 2015 guidance.

The foregoing is detailed in Gavin Grimm’s Brief opposing the School District’s request that the United States Supreme Court scrutinize what the lower courts did, explained below. http://www.scotusblog.com/wp-content/uploads/2016/09/16-273-BIO.pdf

The following chart is my effort to organize the applicable federal law, rule and guidance at the center of the case:

In 2014 before the DOE issued its latest guidance, parents of students learned that Gavin, a transgender male, was using the boys’ restroom at school. They demanded the Gloucester County School Board put a stop to that. Given that Gavin had undergone hormone therapy and looked like the boy he identified himself as being, facial hair included, no one was interested in his using the girls’ restroom. In the mold of Plessy v. Ferguson, the 1896 Supreme Court decision that solidified racial segregation under the “separate but equal” doctrine in the United States over the next 58 years, the School Board’s policy, which passed 6–1, stated:

It shall be the practice of the GCPS to provide male and female restroom . . . facilities in its schools, and the use of said facilities shall be limited to corresponding biological genders, and students with gender identity issues shall be provided an alternative private facility.

Gavin sued the School Board. He said the policy violated Title IX. He asked the court to order the School Board not to enforce the policy while the case proceeded. A federal judge refused to stall enforcement of the policy and dismissed Gavin’s claim that the policy violated Title IX.

Gavin appealed those decisions to the next level, the Fourth Circuit Court of Appeals. The Fourth Circuit agreed with Gavin. That court reinstated Gavin’s Title IX claim and reversed the lower court’s refusal to delay enforcement of the policy: the School Board was prohibited from enforcing the policy pending the outcome of the case.

The School Board asked SCOTUS to take the case and, of course, reverse the decision of the Fourth Circuit. While considering whether to take the case, SCOTUS put on hold the Fourth Circuit’s decision preventing enforcement of the policy: the School Board could enforce the policy until further notice.

SCOTUS eventually agreed to hear the case and scheduled oral argument for March 28, 2017. Just before the Supreme Court argument, Trump withdrew the DOE’s 2015 guidance which had clarified that assuring students equal educational opportunities and making common restrooms truly accessible was to allow transgender students to use restrooms consistent with their gender identity. http://www.scotusblog.com/wp-content/uploads/2017/02/16-273-2.22.17-DOJ-Cover-Letter-Guidance.pdf. Word is DeVos did not want to withdraw the 2015 guidance but was overruled by Bannon, Pence and Sessions. Let that sink in for a minute.

SCOTUS vacated oral argument and sent the case back to the Fourth Circuit to reconsider its decision in light of the Trump DOE’s withdrawal of the 2015 guidance. From a jurisprudential point of view, the issues are as technical as they are political.

Our governments make countless decisions that affect all aspects of our lives. Who is authorized to make those decisions is sometimes a complex and difficult question to answer, but that answer usually matters. In creating Title IX, congress authorized the DOE, an executive branch agency, to codify rules to enforce compliance with Title IX. The DOE has now issued and withdrawn guidance concerning the meaning of its own rule. A principal question SCOTUS was asked to decide, and now the Fourth Circuit must reconsider, is the level of deference to which the DOE is entitled in interpreting a rule it created in order to assure compliance with a statute enacted by the legislative branch.

Obama’s DOE interpreted the rule inclusively. Trump’s, exclusively. Why does it matter that transgender students are forced to use alternative restroom facilities, singling them out from the rest of the student male and female population into a no person’s land? Eighteen States and the District of Columbia (among many others) submitted an Amici (Friends of the Court) Brief that thoughtfully explains why it matters. I encourage you, at a minimum, to look at the Brief’s Table of Contents. http://www.scotusblog.com/wp-content/uploads/2017/03/16-273-bsac-States-28CORRECTED29.pdf

I also include a link to a very thoughtful Brief submitted by one of my former law professors, Terry S. Kogan, S.J. Quinney College of Law, University of Utah. His Brief explains from a historical perspective additional reasons why students should be free to use restrooms consistent with their gender identity. http://dc.law.utah.edu/cgi/viewcontent.cgi?article=1000&context=scholarship


Gavin Grimm said this at the School Board meeting in 2014 when the policy was considered:

I use the restroom, the men’s public restroom, in every public space in Gloucester County and others. I have never once had any sort of confrontation of any kind. . . .

All I want to do is be a normal child and use the restroom in peace, and I have had no problems from students to do that — only from adults. The adults are the only people who have been trying to restrict my rights. . . .

No one has given me any problems, and I have never been happier exercising my right to be who I am. I did not ask to be this way, and it’s one of the most difficult things anyone can face. . . .

I deserve the rights of every other human being. I am just a human. I am just a boy.

1The 26th President of the United States coined the term “Bully Pulpit.” At the turn of the Twentieth Century, the word “bully,” used as an adjective, meant “superb” or “wonderful.” President Theodore Roosevelt believed the White House was an outstanding platform from which to advocate an agenda. It was. Mr. Roosevelt’s coinage worked, presumably because of the credibility of the Office and the stead in which his predecessors had placed the United States in geopolitics, and his words from that platform carried some measure of reliability here and around the world. When advocating his own agenda or that of the United States, he could be trusted to rely on facts or evidence that bore at least some connection to truth or reality, and he did his best to keep his word and America’s commitments.

*My brother the fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to lastamendment.com

**My daughter Angela Moore, a professional photographer, photographed nearly 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in lastamendment.com are hers.



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