Sex Reassignment Surgery Is Tax Deductible

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The Tax Court has finally issued a long-awaited opinion in O’Donnabhain v. Commissioner (here).  The majority concluded that O’Donnabhain’s hormone therapy and sex reassignment surgery constituted deductible medical expenses, but denied a deduction for the her breast augmentation surgery due to a failure to show that it was performed as a result of applying the treatment protocol for gender identity disorder.

The opinion is quite long, but does have its entertaining moments. One concurring judge chided the majority for dragging the court into the culture wars by going further than it absolutely needed to in order to decide the case. Another concurring judge accused the dissenters of lacking basic knowledge of grammar and the English language (and he’s got the better of the argument and is right to take them to task). This is not the kind of stuff you see everyday in judicial opinions, especially tax opinions!

Dealing with the deduction for medical expenses, this case ineluctably contributes to the medicalization and pathologization of  gender identity. I would be very interested in getting a trans take on this case and its broader implications. Please post comments and let us know what you think.

-Tony Infanti

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5 Responses to Sex Reassignment Surgery Is Tax Deductible

  1. rapid_butterfly says:

    I am a transwoman and a public interest (poverty law) attorney. My brief take is a pragmatic one. I do lament the pathologization of my condition, but the fact is that I can use all the help I can get if I am ever to be able to afford SRS; and so can most of my sisters and brothers. The deduction may be helpful in its own right and the case *may* have an impact on the view of insurers regarding the medical necessity of SRS in appropriate cases.

    I guess I don’t see this case really making the pathologization of gender nonconformity any worse than it ever was. To many folks we will be seen as “ill” no matter what the case law says or whether we’re taken out of the DSM, for example. So again – I’ll view it as a positive and a possible help to my transition, and likely, that of many others.

    ~mina

  2. TransWoman says:

    I am not a lawyer, but I have been following this case because I know Ms. O’Donnabhain and because of the effect this ruling will have upon the trans-community.
    I feel that this case is another brick that has been removed from the wall of discrimination. My insurance policy from my employer has a transsexual exemption and none of my medical expenses related to my Gender Identity Disorder (GID) has been covered. The major barrier to insurance coverage has been ERISA, because they are self-insured they fall under ERISA regulations and since there is no federal protection against gender identity discrimination they are free to discriminate. One of the arguments by companies is that the Gender Reconstruction Surgery (GRS, sometimes know as SRS) is not a medical necessity, the ruling yesterday is one more step to refute that argument.
    Other tools in the argument to bring about insurance coverage are the AMA, APA and the World Professional Association for Transgender Health (WPATH) policies supporting the medical necessity treatment for GID and requiring insurance coverage.
    In addition, federal courts have been ruling that gender identity and expression is covered under Title VII. The most recent case was U. S. District Court for the District of Columbia ruling that the Library of Congress discriminated against Diane Schroer.
    I hope that eventually the right to gender self-determination will be seen as a Human Right as called for in the UN Declaration on Human Rights and the General Comment 20, which the United States signed and also in the Yogyakarta Principles.

    AMA Policy: http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisory-committee/ama-policy-regarding-sexual-orientation.shtml

    APA Policy: http://www.apa.org/about/governance/council/policy/transgender.aspx

    WPATH Policy: http://www.wpath.org/documents/Med%20Nec%20on%202008%20Letterhead.pdf

    Schroer v Billington,: http://www.aclu-nca.org/pdf/SchroerDecisionLiability.pdf

  3. Tony Infanti says:

    Thanks so much for these comments. They are very helpful and insightful. Why am I not surprised that insurance companies refuse to cover GID-related costs? Anything to make a buck. Also, in case anyone is interested, there is significant discussion in the various opinions of the treatment of GRS/SRS in other areas of the law.

  4. Profriend says:

    Many transgender people I work with would prefer the condition be considered as a true birth defect rather than as a “mental illness.”

    I tend to agree – how else would you characterise being born with the body of one sex, and the physical brain gender of the other? WPATH’s Standard Of Care supports this view by promoting corrective physical treatments following a vetting process, accompanied by supportive counselling when needed.

    The mental health industry tends to support a “mental defect” approach (no surprise there) which, in addtion to creating unneccesary stigma, is a pretty much useless approach to helping transgender people live “normal” lives.

    The difference in approach probably stems from the reluctance of some mental health professionals to accept solid evidence that many so-called mental disorders are caused by physical and chemical differences in the brain and cannot be effectively ameliorated through any form of psychotherapy.

  5. Bridget Crawford says:

    Profriend:

    Could you say a little more about the desire on the part of some transgender people to characterize gender identity disorder as a “birth defect”?

    I can see that “mental illness” is a stigmatizing label, and I understand the argument that characterizing the same as a physical “illness” might be less stigmatizing.

    I do wonder about labeling as “defective” someone whose physical body doesn’t match her or his gender identity. Would it be possible to describe that condition as something other than physically or mentally defective? Perhaps the existing medical/mental health models are too prejudicial for this to ever occur?

    Further thoughts?

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