Keri Renault

The Real Life Experience of Rhiannon O'Donnabhain: "It's such an affirmation."

Filed By Keri Renault | February 04, 2010 2:00 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: Gay & Lesbian Advocates & Defenders, GLAD, Harry Benjamin Syndrome, Internal Revenue Service, IRS, Jennifer Levi, NCTE, Rhiannon O'Donnabhain, SRS, tax, tax deduction, U.S. Tax Court

"I'm almost at a loss for words here," said an emotional Rhiannon O'Donnabhain, after being introduced to a national phone conference audience Wednesday evening.

"This is an affirmation that my cause was a right cause, and that I was right in pursuing this through the court. Now the long wait is over and my brothers and sisters can take a medical deduction for their treatments for gender identity disorder without fear that their medical deduction is going to be denied by the IRS."

Her case will heretofore be recognized as the landmark victory of transgender rights over discriminatory IRS tax policy. In legalese the case is filed as Rhiannon G. O'Donnabhain v. Commissioner of Internal Revenue. But in everyday practice it's the little David's and Davina's of America triumphing over the big, bad Goliath of the Internal Revenue Service.

In an overwhelming 11-5 ruling the U.S. Tax Court affirmed O'Donnabhain's right to claim her 2001 sex reassignment surgery. Suddenly, transgender Americans have the law on their side to deduct sex reassignment surgery expenses on their taxes.

And it gets better.

Pending any further IRS legal action, transitioners will not only be able to deduct sex reassignment surgery, but other "non-genital sex-reassignment" surgeries recognized as medical treatment for gender identity disorder under the Harry Benjamin Standards of Care.

Hormone therapy and facial feminization surgery (FFS) both qualify as tax deductions under the new ruling, according to Jennifer Levi Esq., Transgender Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD).

She noted a transgender individual may amend a tax return for up to three years, allowing some latitude for those who have had GID related medical treatments in the past.

Levi, one of six principal litigators representing O'Donnabhain against the IRS, moderated the national conference call, co-sponsored by GLAD and the National Center for Transgender Equality (NCTE).

The crux of litigation centered on Section 213 of the tax code which allows for a tax deduction for medical care. The IRS argued that Ms. O'Donnabhain's surgeries should be excluded as cosmetic procedures.

"As the first line of argument the IRS maintained the position that the experience of gender dysphoria, that's associated with being transgendered is not a real experience. That it's not a real medical condition. And that the clinically significant symptoms associated with gender dysphoria have no physiological origin and don't reflect pathology at a cellular level. Therefore they couldn't meet the statutory definition of what constitutes a disease or a medical condition."

--Jennifer Levi, Esq, GLAD describing the legal tactics of the IRS

In sum, the IRS legal strategy positioned GID as a social condition. It attacked the validity of Ms. O'Donnabhain's life experience as a transsexual woman and distress caused by gender identity disorder (GID) as manipulations devised to receive "cosmetic surgery" under the guise of medical treatment.

According to Levi, the IRS argument concluded there was no therapeutic goal to O'Donnabhain's sex reassignment surgery, but her "penchant for cosmetic surgery."

The U.S. Tax Court disagreed, rejecting IRS arguments out of hand. It ruled the "triadic" treatment sequence of the Benjamin Standards of Care including hormonal sex reassignment, real life experience and sex reassignment surgery, (consisting of genital and/or non-genital sex reassignment) is not only medical care treatment, but "the appropriate treatment" reflecting the consensus position of the medical community.

The groundbreaking verdict brings a swift end to the age-old discriminatory practices of the IRS. And it could well portend more significant change on the horizon. An end to unjust health insurance exclusions for transgender medical care comes to mind.

"I hope and expect that this case will have an impact," responded Levi.

The national publicity generated by O'Donnabhain versus the IRS validates the medical crises experienced by transgender individuals. But it goes the extra mile, validating the transgender experience as every bit as real as any other.

The U.S Tax court affirms the transgender experience with dignity. It is a welcome voice of reason echoing far above the harsh din of social conservatism.

The verdict is a small, but significant step forward. Even if it's not the proverbial giant leap for trans-kind, it's definitely a huge step in the direction of federally mandated transgender equality reform.


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I support GLAD and the work they do. I have had to consult with them a few times. I am doing my taxes now. I will file a 1040X. I can use the money. I wonder what my accountant will say about the possibility that this decision might be reversed on appeal. I could certainly use the money but I am wondering what if I will have to pay it back at a time I might least be able to afford it.

I am going to reserve my opinion as to how much of a good thing this opinion is. I just finished reading the judges it.

http://www.glad.org/uploads/docs/cases/odonnabhain-tax-court-decision-02-02-10.pdf

The word "transsexualism" was used interchangeably with "Gender Identity Disorder". Transsexualism is much preferable for the obvious reason it does not imply disease but rather a variation of sex differentiation with endocrinological and physical dissonance that requires treatment, rather than a "mental condition". I am concerned about the use of terms like "genetic male", "mental defect", "psychological condition", "disease", etc. I worry about the implications.

I don't think transsexualism belongs in the DSM which is what the judgement relies on. If it has to be there in order to justify treatment it should be listed as transsexualism the way it was when it was first listed. People were treated for transsexualism, however, before transsexualism was pathologized by the APA.

It's the same old "Transsexualism is just playing dress up" argument. Good that a judge rejected it.

I think there were sixteen judges.

These were the ones who agreed with the majority opinion:

OLVIN, COHEN, THORNTON, MARVEL, WHERRY, PARIS, and
MORRISON, JJ.,

There were a number who agreed in part and dissented in part. I think most of the harsher quotes Zoe Brain mentions on another thread came from that group.

The majority opinion doesn't seem as harsh but I am concerned about the kind of reasoning that might follow from these assertions:

"Given the reference to "mental defect" in the legislative
history and the regulations, it has also long been settled that
"disease" as used in section 213 can extend to mental
disorders."

"GID is listed as a mental disorder
in the DSM-IV-TR, which all three experts agree is the primary
diagnostic tool of American psychiatry.37"

"GID is a "disease""

"sex reassignment surgery "is
performed to correct a psychological defect"

"genetic male"

"Genetic male" sounds very matter of fact but does genetic capability of producing sperm to participate in reproduction equal "male"? Does the inability to accomplish that equal not "male".

Is the term "genetic male" being used to refer to the possession of a "y" chromosome? If it is, what does that imply?

Will having the ability to produce sperm or ovulate lock someone into a life sentence? Will it determine who they are to marry? Would that mean infertile people should not be able to marry?

Is it possible for different parts of the body to differentiate in opposition with one another? Is a sense of self that is in opposition to one's genital anatomy simply a "gender identity disorder". Does that imply disability? If it is a disability, does that mean one should not be allowed to discriminate against someone because of their "gender expression" because it is a disability? Would that mean that someone would have to be accommodated, allowed a place to live, not be denied employment but be allowed to be segregated on the basis of their reproductive potential and chromosomal make up?

It may not be perfect, but this ruling brings the American system closer not only to the Canadian, but also, curiously, the Cuban one, with respect to the needs of probably the most institutionally oppressed population, transsexual people.

It remains a sad commentary that even those who declare themselves our allies have developed a complete inability even to say the word that describes the medical condition that governs our lives, substituting a political identity that conflates those with absolutely no interest, or need, for medical intervention with us.

This, also, oppresses, in a different institution, those who deserve, as do all oppressed populations, recognition and support.

Even within this victory, oppression--an oppression completely invisible to some of those who tout this as a victory--remains.

Oppression most certainly does remain and in places we'd least expect it. I'm amazed at how many physicians and mental health providers embrace the notion that "transgenderism" doesn't exist, therefore does not require "treatment" or equal health care benefits or civil rights protection under the law. Then again, there are many in the LGBT community who feel precisely the same way. This list goes on ad infinitum.

However, I believe that framing this landmark case as anything less than a victory is either ignorant or arrogant. The glass is either half empty or half full. It's how each of us choose to look at it. Here's a rhetorical question: Would transitioners be better off if Rhiannon O'Donnabhain had kept quiet; or if the 16 judges ruled against her? Certainly not in my book.

So I agree. It's not a perfect ruling, but it's absolutely a positive step in the right direction. Something purposeful that can be built upon.

In a perfect world, the trans-community would have equal rights, complete health care coverage, and a "stigma-free" psychological identity. But in the real world life is what we make of it wherever we're at-- in the present day.

Onward to equality, laying claim to our rightful gains as we can.