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Many of the most contentious interactions I have had surrounding the issues transpeople deal with is the matter of getting transgender medical care paid for out of the common weal.  For some reason, people can be supportive of our equal rights until the subject of money for surgery comes up, at which point we get told about how the surgery is all elective, cosmetic, and/or experimental.

Any surgery that has been performed for nearly 60 years is no longer experimental, so that one is easy to deal with.  The only thing I've ever found elective about gender reassignment surgery has been when:  when can it be financially afforded and how soon can one get it scheduled?

Anyone who thinks it is merely cosmetic has never tried to live in this society with the internal or external genitals associated with the gender with which they no longer identify.  If you haven't noticed, in many locales, until we have irreversible surgery, we cannot get paperwork that assures the rest of the world that we are legally the gender we claim.

Some people may have considered sex reassignment surgery to be elective or cosmetic for themselves, but they are braver people than I.

Nearly a decade ago, Rhiannon O'Donnabhain attempted to deduct $5000 in medical expenses related to transitioning her physical anatomy.  The IRS denied the claim, claiming the surgery she had was purely cosmetic in nature.  So O'Donnabhain sued in Tax Court.  Suing the IRS has always sounded like a good way to waste a lot of years to me, but Rhiannon endured.  The now 65 year-old O'Donnabhain was aided by Gay & Lesbian Advocates & Defenders (GLAD).  The Tax Court recognized gender identity disorder as a valid and serious medical condition.  It ruled that many parts of the procedure should be deductible.

There is something to be said when a federal court recognizes general identity disorder as a serious medical condition.

--Karen Loewy, GLAD

At the time, the IRS was ready to settle for half of the $5000 deduction.  But forces that be (that would have been in the Bush years) decided that this needed to be fought tooth and nail.

One part that was not allowed was, not surprisingly, breast augmentation, which the court ruled was directed at improving her appearance and not to treat her disease.  But even that is not entirely excluded, but was found to be case-specific, to be argued in each separate situation.

The Tax Court’s panel of judges could hardly be accused of bending over backwards to accommodate O’Donnabhain.  Even in his concurring opinion, Tax Court Judge Mark V. Holmes lamented that making gender identity disorder a tax-deductible medical expense drafts “our court into culture wars in which tax lawyers have heretofore claimed noncombatant status.”
Most of my sympathy on the issue goes to the transgendered.  That is mainly because of my general feeling of identification with the underdog.  The most important legal decision concerning a trangendered person was Farmer v Brennan.  Dee Farmer was a pre-op transexual who was imprisoned in the general population of a male prison and was repeatedly raped.  I don’t think anybody goes very far into transgendering for the laughs and giggles. On the other hand I have sympathy for the radfem perspective.  If they need space that doesn’t have men around to feel safe, because men are such jerks – Well probably surgery will not cure men of their jerkiness.  Having grown up in a highly gendered environment I can also appreciate the religious right perspective.  So there is going to be an argument, but it was exceedingly dumb of the religious right to pick the fight in Tax Court particularly in Boston where they were up agains GLAD which is currently kicking ass on DOMA.  IRS had an expert who said the surgery was not a valid medical procedure.  You could probably find an expert somewhere or other to say that about any procedure. Using your political muscle to get the IRS to pick on an individual is a great way to win sympathy for the other side of the argument, particularly if the individual wins in Tax Court.

--Peter J. Reilly, Forbes

For its part, the IRS is still being a bit of a jerk about this:

Ms. O’Donnabhain paid expenses for hormone therapy and sex reassignment surgery to treat her gender identity disorder disease and deducted the costs of the treatment as medical expenses.

The IRS disallowed her deduction based on the view that hormone therapy and sex reassignment surgery did not treat a medically recognized disease or promote the proper function of the body…Ms. O’Donnabhain petitioned the Tax Court to reverse the IRS administrative determination and allow her deduction for the expenses of hormone therapy and sex reassignment surgery.

The Tax Court agreed with Ms. O’Donnabhain that her gender identity disorder is a disease.

--National Ledger

Then the IRS decided it need to add that this decision "is not to be relied upon or otherwise cited as precedent by taxpayers".

WTF?  Hell yes it is precedence.

The Tax Court decision was actually in February of 2010.  So why is this news now?  It took the IRS this long to acquiesce to the Tax Court decision, which it did on November 3.  That and GLAD's review of the action attracted the attention of Time, Forbes, HuffPo, et al.

Here at the end are some words from O'Donnabhain in 2007:

This goes way beyond money.  If I were to give the money back, it would be saying it's OK for you to do this to me.  It is not OK for them to do this to me or anyone like me.

Originally posted to TransAction on Sun Nov 13, 2011 at 08:12 AM PST.

Also republished by Community Spotlight.

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