RHIANNON G. O‘DONNABHAIN, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
Docket No. 6402-06.
United States Tax Court
Filed February 2, 2010.
134 T.C. 34
Mary P. Hamilton, John R. Mikalchus, Erika B. Cormier, and Molly H. Donohue, for respondent.
FINDINGS OF FACT
Many of the facts have been stipulated, and the stipulated facts and attached exhibits are incorporated in our findings by this reference. The parties have stipulated that this case is appealable to the U.S. Court of Appeals for the First Circuit.
I. Petitioner‘s Background
Rhiannon G. O‘Donnabhain (petitioner) was born a genetic male with unambiguous male genitalia. However, she3 was uncomfortable in the male gender role from childhood and first wore women‘s clothing secretly around age 10. Her discomfort regarding her gender intensified in adolescence, and she continued to dress in women‘s clothing secretly.
As an adult, petitioner earned a degree in civil engineering, served on active duty with the U.S. Coast Guard, found employment at an engineering firm, married, and fathered three children. However, her discomfort with her gender persisted. She felt that she was a female trapped in a male body, and she continued to secretly wear women‘s clothing.
Petitioner‘s marriage ended after more than 20 years. After separating from her spouse in 1992, petitioner‘s feelings that she wanted to be female intensified and grew more persistent.4
By mid-1996 petitioner‘s discomfort with her male gender role and desire to be female intensified to the point that she sought out a psychotherapist to address them. After investigating referrals, petitioner contacted Diane Ellaborn (Ms. Ellaborn), a licensed independent clinical social worker (LICSW) and psychotherapist, and commenced psychotherapy sessions in August 1996.
Although not a medical doctor, Ms. Ellaborn had a master‘s degree in social work and as an LICSW was authorized under Massachusetts law to diagnose and treat psychiatric illnesses. She had specialized training in the diagnosis and treatment of gender-related disorders.
During petitioner‘s psychotherapy Ms. Ellaborn learned of petitioner‘s cross-dressing history and of her longstanding belief that she was really female despite her male body. Ms. Ellaborn observed that petitioner was very sad and anxious, had very low self-esteem, had limited social interactions, and was obsessed with issues concerning the incongruence between her perceived gender and her anatomical sex.
In early 1997, after approximately 20 weekly individual therapy sessions, Ms. Ellaborn‘s diagnosis was that petitioner was a transsexual suffering from severe gender identity disorder (GID), a condition listed in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000 text revision) (DSM-IV-TR), published by the American Psychiatric Association. The DSM-IV-TR states that a diagnosis of GID is indicated where an individual exhibits (1) a strong and persistent desire to be, or belief that he or she is, the other sex; (2) persistent discomfort with his or her anatomical sex, including a preoccupation with getting rid of primary or secondary sex characteristics; (3) an absence of any physical intersex (hermaphroditic) condition; and (4) clinically significant distress or impairment in social, occupational, or other important areas of functioning as a result of the discomfort arising from the perceived incongruence between anatomical sex and perceived gender identity.5 See
Both the DSM-IV-TR and its predecessor the DSM-IV contain the following “Cautionary Statement“:
The purpose of DSM-IV is to provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose, communicate about, study, and treat people with various mental disorders. It is to be understood that inclusion here, for clinical and research purposes, of a diagnostic category * * * does not imply that the condition meets legal or other non-medical criteria for what constitutes mental disease, mental disorder, or mental disability. * * *
III. Treatment of GID
The World Professional Association for Transgender Health (WPATH), formerly known as the Harry Benjamin International Gender Dysphoria Association, Inc., is an association of medical, surgical, and mental health professionals specializing in the understanding and treatment of GID.8 WPATH publishes “Standards of Care” for the treatment of GID (hereinafter Benjamin standards of care or Benjamin standards). The Benjamin standards of care were originally
Summarized, the Benjamin standards of care prescribe a “triadic” treatment sequence for individuals diagnosed with GID consisting of (1) hormonal sex reassignment; i.e., the administration of cross-gender hormones to effect changes in physical appearance to more closely resemble the opposite sex;9 (2) the “real-life” experience (wherein the individual undertakes a trial period of living full time in society as a member of the opposite sex); and (3) sex reassignment surgery, consisting of genital sex reassignment and/or non-genital sex reassignment, more fully described as follows:
Genital surgical sex reassignment refers to surgery of the genitalia and/or breasts performed for the purpose of altering the morphology in order to approximate the physical appearance of the genetically other esx [sic] in persons diagnosed as gender dysphoric. * * * Non-genital surgical sex reassignment refers to any and all other surgical procedures of non-genital, or non-breast, sites (nose, throat, chin, cheeks, hips, etc.) conducted for the purpose of effecting a more masculine appearance in a genetic female or for the purpose of effecting a more feminine appearance in a genetic male in the absence of identifiable pathology which would warrant such surgery regardless of the patient‘s genetic sex (facial injuries, hermaphroditism, etc.).
Under the Benjamin standards, an individual must have the recommendation of a licensed psychotherapist to obtain hormonal or surgical sex reassignment. Hormonal sex reassignment requires the recommendation of one psychotherapist and surgical sex reassignment requires the recommendations of two.10 The recommending psychotherapist should have diagnostic evidence for transsexualism for a period of at least 2 years, independent of the patient‘s claims.
The Benjamin standards state that hormonal sex reassignment should precede surgical sex reassignment because the patient‘s degree of satisfaction with hormone therapy “may indicate or contraindicate later surgical sex reassignment.”
IV. Ms. Ellaborn‘s Treatment Plan for Petitioner
After diagnosing severe GID in petitioner in early 1997, Ms. Ellaborn administered a course of treatment that followed the Benjamin standards of care.11
A. Petitioner‘s Hormone Treatments
In February 1997 Ms. Ellaborn referred petitioner to an endocrinologist for feminizing hormone therapy, and petitioner commenced taking hormones in September 1997.12 She remained on feminizing hormones continuously through the taxable year in issue (2001).13
After beginning hormone therapy petitioner told Ms. Ellaborn that she felt calmer and better emotionally and that she felt positive about her physical changes. Ms. Ellaborn viewed petitioner‘s positive reactions to hormone therapy as validation of the GID diagnosis.
Petitioner advised her former spouse and children of her GID diagnosis in 1997 and 1998, respectively.14
B. Petitioner‘s “Real-Life” Experience
In consultation with Ms. Ellaborn, petitioner decided to undertake the Benjamin standards’ “real-life” experience; i.e., to present in public as female on a full-time basis in March
C. Petitioner‘s Sex Reassignment Surgery
Petitioner‘s anxiety as a result of having male genitalia persisted,17 however, and Ms. Ellaborn concluded that her prognosis without genital surgical sex reassignment (sex reassignment surgery) was poor, in that petitioner‘s anxiety over the lack of congruence between her perceived gender and her anatomical sex would continue in the absence of surgery and would impair her ability to function normally in society. In November 2000 Ms. Ellaborn wrote a referral letter to Dr. Toby Meltzer (Dr. Meltzer), a board-certified plastic and reconstructive surgeon, with over 10 years’ experience specializing in sex reassignment surgery, to secure a place for petitioner on his waiting list.
After three additional therapy sessions with petitioner in mid-2001, Ms. Ellaborn concluded that petitioner had satisfied or exceeded all of the Benjamin standards’ criteria for sex reassignment surgery, including time spent satisfactorily on feminizing hormones and in the “real-life” experience. In July 2001 Ms. Ellaborn wrote a second letter to Dr. Meltzer certifying petitioner‘s GID diagnosis and satisfaction of the
Petitioner, anticipating the formal recommendations for her surgery, went for a consultation and examination by Dr. Meltzer in June 2001 at his offices in Portland, Oregon. Dr. Meltzer concluded that petitioner was a good candidate for sex reassignment surgery. Dr. Meltzer‘s notes of his physical examination of petitioner state: “Examination of her breasts reveal [sic] approximately B cup breasts with a very nice shape.”
In mid-October 2001 petitioner returned to Portland, and she underwent sex reassignment surgery on October 19, 2001. The procedures that Dr. Meltzer carried out included surgical removal of the penis and testicles and creation of a vaginal space using genital skin and tissue. The procedures were designed to surgically reconfigure petitioner‘s male genitalia to create female genitalia both in appearance and in function, by reconstructing the penile glans into a neo-clitoris, making sexual arousal and intercourse possible.
Dr. Meltzer also performed breast augmentation surgery designed to make petitioner‘s breasts, which had experienced some development as a result of feminizing hormones, more closely resemble the breasts of a genetic female.
In May 2002 Dr. Meltzer performed followup surgery on petitioner to refine the appearance of her genitals and remove scar tissue. In February 2005 Dr. Meltzer performed further surgery on petitioner‘s face, designed to feminize her facial features.18
V. Petitioner‘s Claim for a Medical Expense Deduction
During 2001 petitioner incurred and paid the following expenses (totaling $21,741) in connection with her hormone therapy, sex reassignment surgery, and breast augmentation
On her Federal income tax return for 2001, petitioner claimed an itemized deduction for the foregoing expenditures as medical expenses, which respondent subsequently disallowed in a notice of deficiency.
VI. Expert Testimony
A. Petitioner‘s Expert: Dr. Brown
Petitioner‘s expert, Dr. George R. Brown (Dr. Brown), is a licensed physician, board certified in adult psychiatry by the American Board of Psychiatry and Neurology. Dr. Brown has been a member of the American Psychiatric Association since 1983 and was elected a Distinguished Fellow of that organization in 2003. At the time of trial Dr. Brown was a professor and associate chairman of the Department of Psychiatry at East Tennessee State University and chief of psychiatry at James H. Quillen Veterans Affairs Medical Center in Johnson City, Tennessee.
Dr. Brown has been an active member of WPATH since 1987, including serving on its board of directors, and he participated in the development of the Benjamin standards of care. He has seen approximately 500 GID patients either in a clinical setting or as an academic researcher. Dr. Brown has published numerous papers in peer-reviewed medical journals and written several book chapters on topics related to GID, including those in the Merck Manuals, one of the most widely used medical reference texts in the world.
Citing its recognition in the DSM-IV-TR, standard medical reference texts, and World Health Organization publications, Dr. Brown contends that there is general agreement in mainstream psychiatry that GID is a legitimate mental disorder. Dr. Brown indicates that there are no biological or laboratory
In Dr. Brown‘s view, proper medical treatment of a person diagnosed with GID includes extended psychotherapy and one or more of the triadic therapies in the Benjamin standards. Dr. Brown is not aware of any case in which psychotherapy alone was effective in treating severe GID. For individuals with severe GID, Dr. Brown believes completion of the entire triadic sequence, i.e., through sex reassignment surgery, is usually medically necessary to “cure or mitigate the distress and maladaption caused by GID.”
In Dr. Brown‘s opinion, it is also important to the mental health of a male with severe GID to be able to “pass” convincingly in public as female—that is, to be perceived as female by members of the public. Failure to pass exacerbates the anxieties associated with GID. Passing includes the use of sex-segregated facilities such as restrooms and locker rooms, where a failure to pass can result in public humiliation, assault, or arrest. Genetic males with GID sometimes have distinctly male facial features that make it difficult to pass, absent surgery to feminize facial features.
According to Dr. Brown, autocastration, autopenectomy, and suicide have been reported in patients who did not receive appropriate treatment for their GID. Dr. Brown rejects the idea that sex reassignment surgery is comparable to cosmetic surgery or is undertaken to improve one‘s appearance, in view of the social stigma (including rejection by family and employment discrimination) and the pain and complications typically associated with such surgery. Moreover, Dr. Brown observes, normal genetic males generally do not desire to have their penis and testicles removed. Such a desire is regarded in the psychiatric literature as a likely manifestation of psychosis (usually schizophrenia) or GID, followed by a range of other less likely explanations. In Dr. Brown‘s opinion, people undergo sex reassignment surgery because of the severity of their GID symptoms and the lack of any other known effective treatment.
In Dr. Brown‘s view, the scientific literature demonstrates positive therapeutic outcomes from sex reassignment sur-
On the basis of a review of petitioner‘s medical records and a telephone interview with petitioner, Dr. Brown opined that petitioner was properly diagnosed with GID and petitioner‘s treatments, including sex reassignment surgery, were appropriate and medically necessary.
B. Respondent‘s Expert: Dr. Schmidt
Respondent‘s expert, Dr. Chester W. Schmidt, Jr. (Dr. Schmidt), is a licensed physician, board certified in psychiatry by the American Board of Psychiatry and Neurology, and a member of the American Psychiatric Association. At the time of trial Dr. Schmidt was a professor of psychiatry at the Johns Hopkins University School of Medicine, the chief medical director, Johns Hopkins Health Care, and chair of the medical board, Johns Hopkins Bayview Medical Center.
Dr. Schmidt cofounded the Sexual Behavior Consultation Unit of the Johns Hopkins Hospital, a clinical, teaching, and research program devoted to the evaluation and treatment of sexual disorders, in 1971. Since that time he has been active in the clinical and teaching aspects of transsexualism, having participated in the evaluation of approximately 12 patients per year diagnosed with GID. However, he has not directly treated or managed a patient with GID since the mid-1980s, and his current clinical activity consists of evaluating new cases of GID. Dr. Schmidt‘s expert report states that he has “participated in the publication” of several peer-reviewed medical journal articles about GID, but none has been identified for which he was a listed author, and he has never written a chapter on the subject in a medical reference text.
In his expert report, Dr. Schmidt asserts that the validity of the GID diagnosis remains the subject of debate within the psychiatric profession and that he currently is undecided about its validity.20 However, 10 months before submitting
Dr. Schmidt agreed that GID requires treatment. He has observed that “you can‘t walk around day after day being ambiguous about your gender identity. It will tear you apart psychologically“. Dr. Schmidt likewise agreed that untreated GID in males can sometimes lead to autopenectomy, autocastration, and suicide.
Dr. Schmidt believes that the Benjamin standards of care are merely guidelines rather than true standards of care, in that they do not meet the legal threshold of a “community” standard, the departure from which would constitute malpractice. Dr. Schmidt further believes that the Benjamin standards enjoy only limited acceptance in American medicine generally. He is unaware, however, of any significant disagreement with the Benjamin standards within the psychiatric profession, other than a minority that considers sex reassignment surgery unethical. Dr. Schmidt agrees with the Benjamin standards’ treatment protocols, with the exception that he believes psychotherapy should be mandatory rather than merely recommended for candidates for sex reassignment. All GID patients at the sexual disorders clinic where Dr. Schmidt practices are advised to become familiar with the Benjamin standards of care.
Dr. Schmidt believes that cross-gender hormone therapy and sex reassignment surgery have recognized medical and psychiatric benefits for persons suffering from GID, including reinforcement of an internal sense of consistency and balance in their gender identity. Dr. Schmidt has also expressed the view that once a genetic male with GID makes the decision to transition to a female identity, everything that reinforces the identity is helpful for psychological well-being. However, in his opinion a therapist should remain neutral regarding whether a patient should undergo hormone therapy or the
Given his view that failure to adhere to the Benjamin standards of care would not constitute malpractice and that a therapist should remain neutral regarding the administration of hormone therapy or sex reassignment surgery, Dr. Schmidt concludes that the procedures are elective and not medically necessary. He acknowledges, however, that the issue of the medical necessity of sex reassignment surgery is “contentious and variable within American medicine.”
Finally, while noting that there is some evidence that GID may have a neurological cause, Dr. Schmidt believes that there is no conclusive scientific proof that GID is the result of a genetic or congenital abnormality.
C. Respondent‘s Expert: Dr. Dietz
Respondent‘s expert, Dr. Park Dietz (Dr. Dietz), is a licensed physician and board certified in psychiatry by the American Board of Psychiatry and Neurology. Like Dr. Brown, he is a Distinguished Fellow of the American Psychiatric Association. At the time of trial Dr. Dietz was a clinical professor of psychiatry and behavioral sciences at the University of California at Los Angeles School of Medicine. Dr. Dietz’ specialty is forensic psychiatry, and he has written approximately 100 professional publications, mostly on sexual, criminal, and antisocial behavior from the standpoint of forensic psychiatry, in peer-reviewed journals, reference text chapters, and other media. Dr. Dietz was recognized as an expert in forensic psychiatry. He was retained by respondent for the purpose of addressing the question of whether GID or transsexualism is a disease or illness.
It is Dr. Dietz’ opinion that GID is a mental disorder, susceptible of a correct or incorrect diagnosis, but not a disease or an illness because it has not been shown to arise from a pathological process within the body—a necessary condition for a disease in Dr. Dietz’ view.21 While acknowledging that commentators on the subject have advanced at
To be a disease, a condition must arise as a result of a pathological process. It is not necessary that this process be fully known or understood, but it is necessary that the pathology occur within the individual and reflect abnormal structure or function of the body at the gross, microscopic, molecular, biochemical, or neuro-chemical levels. * * *
Citing the cautionary statement in the DSM-IV-TR (to the effect that inclusion of a condition in a diagnostic category of the DSM does not imply that the condition meets legal criteria for mental disease), Dr. Dietz asserts that the designation of a condition as a mental disorder in the DSM-IV-TR does not indicate that the condition is a disease. To be a disease, a mental disorder must have a demonstrated organic or biological origin in the individual, in his view.
Dr. Dietz testified that since qualification as a disease under his definition depends upon a demonstration of the condition‘s organic origins, a condition may be a disease but not known as such, pending scientific discoveries concerning its etiology. For example, panic disorder and obsessive-compulsive disorder are now understood to have an organic basis, but their etiology was only discovered as a result of laboratory advances within the last decade or so. Thus, both conditions are diseases under Dr. Dietz’ definition, but would not have been recognized as such 20 years ago. Dr. Dietz confirmed that bulimia22 is psychologically unhealthy but not a disease under his formulation because it has no demonstrated organic etiology. Dr. Dietz was unable to say whether anorexia23 is a disease under his definition because he was unfamiliar with the current state of scientific knowledge of anorexia‘s etiology. In Dr. Dietz’ view, post-traumatic stress disorder is not a disease as he defines the term, but an injury.
Dr. Dietz agrees that GID is sometimes associated with autopenectomy, autocastration, and suicide.
I. Medical Expense Deductions Under Section 213
A. In General
B. Definition of Medical Care
Congress first provided an income tax deduction for medical expenses in 1942. See Revenue Act of 1942, ch. 619, sec. 127(a), 56 Stat. 825. The original provision was codified as section 23(x) of the 1939 Internal Revenue Code and read as follows:
SEC. 23. DEDUCTIONS FROM GROSS INCOME.
In computing net income there shall be allowed as deductions:
* * * * * * *
(x) MEDICAL, DENTAL, ETC., EXPENSES.—Except as limited under paragraph (1) or (2), expenses paid during the taxable year * * * for medical care of the taxpayer * * *. The term “medical care“, as used in this subsection, shall include amounts paid for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body * * *.
At the time, the Senate Committee on Finance commented on the new deduction for medical expenses in relevant part as follows:
The term “medical care” is broadly defined to include amounts paid for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body. It is not intended, however, that a deduction should be allowed for any expense that is not incurred primarily for the prevention or alleviation of a physical or mental defect or illness.
S. Rept. 1631, 77th Cong., 2d sess. 95-96 (1942), 1942–2 C.B. 504, 576-577 (emphasis added); see Stringham v. Commissioner, 12 T.C. 580, 583-584 (1949) (medical care is defined in broad and comprehensive language, but it does not include items which are primarily nondeductible personal living expenses), affd. 183 F.2d 579 (6th Cir. 1950).
The core definition of “medical care” originally set forth in section 23(x) of the 1939 Code has endured over time and is currently found in
SEC. 213 (d). DEFINITIONS.—For purposes of this section—
(1) The term “medical care” means amounts paid—
(A) for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body * * *
Thus, since the inception of the medical expense deduction, the definition of deductible “medical care” has had two prongs. The first prong covers amounts paid for the “diagnosis, cure, mitigation, treatment, or prevention of disease” and the second prong covers amounts paid “for the purpose of affecting any structure or function of the body“.
The regulations interpreting the statutory definition of medical care echo the description of medical care in the Senate Finance Committee report accompanying the original enactment. The regulations state in relevant part:
(e) Definitions—(1) General. (i) The term “medical care” includes the diagnosis, cure, mitigation, treatment, or prevention of disease. Expenses paid for “medical care” shall include those paid for the purpose of affecting any structure or function of the body or for transportation primarily for and essential to medical care. * * *
(ii) * * * Deductions for expenditures for medical care allowable under section 213 will be confined strictly to expenses incurred primarily for the prevention or alleviation of a physical or mental defect or illness. * * *
[
Sec. 1.213-1(e)(1), Income Tax Regs. ; emphasis added.]
Notably, the regulations, mirroring the language of the Finance Committee report, treat “disease” as used in the
Given the reference to “mental defect” in the legislative history and the regulations, it has also long been settled that “disease” as used in
In Jacobs v. Commissioner, 62 T.C. 813 (1974), this Court reviewed the legislative history of
The second prong of the statutory definition of “medical care“, concerning amounts paid “for the purpose of affecting any structure or function of the body“, was eventually adjudged too liberal by Congress. The Internal Revenue Service, relying on the second prong, had determined in two revenue rulings that deductions were allowed for amounts expended for cosmetic procedures (such as facelifts, hair transplants, and hair removal through electrolysis) because the procedures were found to affect a structure or function of the body within the meaning of
In 1990 Congress responded to these rulings by amending
SEC. 213(d). DEFINITIONS.—For purposes of this section—
* * * * * * *
(9) COSMETIC SURGERY.—
(A) IN GENERAL.—The term “medical care” does not include cosmetic surgery or other similar procedures, unless the surgery or procedure is necessary to ameliorate a deformity arising from, or directly related to, a congenital abnormality, a personal injury resulting from an accident or trauma, or disfiguring disease.
(B) COSMETIC SURGERY DEFINED.—For purposes of this paragraph, the term “cosmetic surgery” means any procedure which is directed at improving the patient‘s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease.
In sum,
II. The Parties’ Positions
Respondent contends that petitioner‘s hormone therapy, sex reassignment surgery, and breast augmentation surgery are nondeductible “cosmetic surgery or other similar procedures”29 under
Petitioner maintains that she is entitled to deduct the cost of the procedures at issue on the grounds that GID is a well-recognized mental disorder in the psychiatric field that “falls squarely within the meaning of ‘disease’ because it causes serious, clinically significant distress and impairment of functioning.” Since widely accepted standards of care prescribe hormone treatment, sex reassignment surgery, and, in appropriate circumstances, breast augmentation surgery for genetic males suffering from GID, expenditures for the foregoing constitute deductible “medical care” because a direct or proximate relationship exists between the expenditures and the “diagnosis, cure, mitigation, treatment, or prevention of disease“, petitioner argues. Moreover, petitioner contends, because the procedures at issue treated a “disease” as used in
III. Analysis
The availability of the medical expense deduction for the costs of hormonal and surgical sex reassignment for a transsexual individual presents an issue of first impression.
Determining whether sex reassignment procedures are deductible “medical care” or nondeductible “cosmetic surgery” starts with the meaning of “treatment” and “disease” as used in
Because the only difference between the quoted phrases in these two subparagraphs is the use of the noun form “treatment” versus the verb form “treat“, we see no meaningful distinction between them. “Code provisions generally are to be interpreted so congressional use of the same words indicates an intent to have the same meaning apply“. Elec. Arts, Inc. v. Commissioner, 118 T.C. 226, 241 (2002); see also Commissioner v. Keystone Consol. Indus., Inc., 508 U.S. 152, 159 (1993); United States v. Olympic Radio & Television, Inc., 349 U.S. 232, 236 (1955); Zuanich v. Commissioner, 77 T.C. 428, 442-443 (1981). Consequently, the determination of whether something is a “treatment” of a “disease” is the same throughout
Congress’ reuse of the terms “treat” and “disease” in defining “cosmetic surgery” in
B. Is GID a “Disease“?
Petitioner argues that she is entitled to deduct her expenditures for the procedures at issue because they were treatments for GID, a condition that she contends is a “disease” for purposes of
On brief respondent cites the foregoing definition from Dr. Dietz’ expert report and urges it upon the Court as the meaning of “disease” as used in
However, this use of expert testimony to establish the meaning of a statutory term is generally improper. “[E]xpert testimony proffered solely to establish the meaning of a law is presumptively improper.” United States v. Prigmore, 243 F.3d 1, 18 n.3 (1st Cir. 2001). The meaning of a statutory term is a pure question of law that is “exclusively the domain of the judge.” Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 99 (1st Cir. 1997); see also United States v. Mikutowicz, 365 F.3d 65, 73 (1st Cir. 2004); Bammerlin v. Navistar Intl. Transp. Corp., 30 F.3d 898, 900 (7th Cir. 1994); Snap-Drape, Inc. v. Commissioner, 105 T.C. 16, 19–20 (1995), affd. 98 F.3d 194, 198 (5th Cir. 1996). Closely analogous is S. Jersey Sand Co. v. Commissioner, 30 T.C. 360, 364 (1958), affd. 267 F.2d 591 (3d Cir. 1959), where this Court refused to consider the expert testimony of a geologist concerning the meaning of the term “quartzite” as used in the Internal Revenue Code.
While the Court admitted Dr. Dietz’ expert report and allowed him to testify over petitioner‘s objection, the use to which respondent now seeks to put his testimony is improper, and we disregard it for that purpose.34 The meaning of “disease” as used in
As a legal argument for the proper interpretation of “disease“, respondent‘s position is meritless. Respondent cites no authority, other than Dr. Dietz’ expert testimony, in support of his interpretation, and we have found none. To the contrary, respondent‘s interpretation is flatly contradicted by nearly a half century of caselaw. Numerous cases have treated mental disorders as “diseases” for purposes of
While the record is not too clear with respect to the precise nature of the mental conditions of * * * [the taxpayer‘s children], we are satisfied that they both suffered from some sort of learning disability, accompanied by emotional stress, which prevented, or at least interfered with, their ability to cope in a normal academic environment. While this condition may or may not have been psychiatric, it was certainly a mental handicap or defect which we think may be considered a mental disease or defect for purposes of
section 213 . It was the type of disorder that the petitioners, their expert educational consultants, a psychiatrist, and the staff of the DLD program36 thought could be mitigated or alleviated, or possibly cured, by the special attention and individual programing given to the children at the DLD. While these mental disorders may not have been severe enough to require psychiatric or psychological treatment, they were severe enough to prevent the children from acquiring a normal education without some help, and we think any treatment, whether rendered by medical people or specially trained educators, directly related to the alleviation of such mental disorders so that the recipient may obtain a normal, or more normal, education, qualifies as medical care under the statute.
In Fischer v. Commissioner, supra at 173-174, there was a similar absence of any discussion of organic or physiological origins in this Court‘s analysis of the “conventional meaning” of “disease“.
The first question presented is whether petitioner‘s son, Don, was suffering from a “disease” as that term is used in the statute and the applicable regulation. Given that term its conventional meaning, we think the evidence is clear * * * that Don was suffering from a disease when he entered Oxford Academy. As detailed in our findings, the report of the Institute of the Pennsylvania Hospital states that as of that date Don had “not evolved the usual ‘defense’ or integrating mechanisms necessary for dealing maturely, realistically and in an organized fashion, with the problems of his environment. * * *” * * * a psychiatrist who treated Don for
almost a year, described him as a child with “significant neurotic blocks against learning.” * * * [Fn. ref. omitted.]
See also Jacobs v. Commissioner, supra at 818 (taxpayer‘s “severe depression” as evidenced by his psychiatrist‘s testimony is “disease” for purposes of
The absence of any consideration of etiology in the caselaw is consistent with the legislative history and the regulations. Both treat “disease” as synonymous with “a physical or mental defect“, which suggests a more colloquial sense of the term “disease” was intended than the narrower (and more rigorous) interpretation for which respondent contends.
In addition, in the context of mental disorders, it is virtually inconceivable that Congress could have intended to confine the coverage of
In sum, we reject respondent‘s interpretation of “disease” because it is incompatible with the stated intent of the regulations and legislative history to cover “mental defects” generally and is contradicted by a consistent line of cases finding “disease” in the case of mental disorders without regard to any demonstrated etiology.
Having rejected respondent‘s contention that “disease” as used in
For the reasons already noted and those discussed below, we conclude that GID is a “disease” within the meaning of
Even if one accepts respondent‘s expert Dr. Schmidt‘s assertion that the validity of the GID diagnosis is subject to some debate in the psychiatric profession, the widespread recognition of the condition in medical literature persuades the Court that acceptance of the GID diagnosis is the prevailing view. Dr. Schmidt‘s own professed misgivings about the diagnosis are not persuasive, given that he continues to employ the diagnosis in practice, believes that psychiatrists must be familiar with it, and recently gave a GID diagnosis as an expert in another court proceeding.39 On balance, the
Second, GID is a serious, psychologically debilitating condition. Respondent‘s characterization of the condition on brief as a “social construction” and “not a significant psychiatric disorder” is undermined by both of his own expert witnesses and the medical literature in evidence. All three expert witnesses agreed that, absent treatment, GID in genetic males is sometimes associated with autocastration, autopenectomy, and suicide. Respondent‘s expert Dr. Schmidt asserts that remaining ambiguous about gender identity “will tear you apart psychologically“. Petitioner‘s expert Dr. Brown likewise testified that GID produces significant distress and maladaption. Psychiatric reference texts, established as reliable authority by Dr. Brown‘s testimony, confirm the foregoing. See Fed. R. Evid. 803(18). One such text states:
Cross-gender identity (gender identity contradicted by anatomical sex characteristics) in adulthood virtually always causes distress to the individual. * * * Cross-gender identity at any age, therefore, is appropriately regarded as a disorder and a possible reason for clinical intervention. * * * [Green & Blanchard, “Gender Identity Disorders“, in Kaplan & Sadock‘s Comprehensive Textbook of Psychiatry 1646, 1659 (Sadock & Sadock, eds., 2000).]
Another psychiatric reference text states that “Prior to recognition of transsexualism as a disorder deserving medical and psychiatric attention many patients self-mutilated or committed suicide out of despair.” Green, “Gender Identity Disorder in Adults“, in New Oxford Textbook of Psychiatry 914 (Gelder, et al., eds., 2000).
Ms. Ellaborn concluded that petitioner exhibited clinically significant impairment from GID, to the extent that she designated petitioner‘s condition as “severe” under the DSM-IV-TR standards. Her diagnosis was supported by another doctoral-level mental health professional and by Dr. Brown. The severity of petitioner‘s impairment, coupled with the near universal recognition of GID in diagnostic and other medical reference texts, bring petitioner‘s condition in line with the circumstances where a mental condition has been deemed a “disease” in the caselaw under
Third, respondent‘s position that GID is not a significant psychiatric disorder is at odds with the position of every U.S.
Seven of the U.S. Courts of Appeals that have considered the question have concluded that severe GID or transsexualism constitutes a “serious medical need” for purposes of the Eighth Amendment. See De‘lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003); Allard v. Gomez, 9 Fed. Appx. 793, 794 (9th Cir. 2001); Cuoco v. Moritsugu, supra; Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir. 1995); Phillips v. Mich. Dept. of Corr., 932 F.2d 969 (6th Cir. 1991), affg. 731 F. Supp. 792 (W.D. Mich. 1990); White v. Farrier, supra; Meriwether v. Faulkner, 821 F.2d 408, 411-413 (7th Cir. 1987); see also Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997) (describing gender dysphoria as a “profound psychiatric disorder“).40 No U.S. Court of Appeals has held otherwise.41
Deliberate indifference “requires that a prison official actually know of and disregard an objectively serious condition, medical need, or risk of harm.” De‘lonta v. Angelone, supra at 634. Many of the foregoing opinions either found that “deliberate indifference” had not been shown or remanded to
In view of (1) GID‘s widely recognized status in diagnostic and psychiatric reference texts as a legitimate diagnosis, (2) the seriousness of the condition as described in learned treatises in evidence and as acknowledged by all three experts in this case; (3) the severity of petitioner‘s impairment as found by the mental health professionals who examined her; (4) the consensus in the U.S. Courts of Appeals that GID constitutes a serious medical need for purposes of the Eighth Amendment, we conclude and hold that GID is a “disease” for purposes of
C. Did Petitioner Have GID?
Respondent also contends that petitioner was not correctly diagnosed with GID, citing his expert Dr. Schmidt‘s contentions that certain comorbid conditions such as depression or transvestic fetishism had not been adequately ruled out as explanations of petitioner‘s condition.
We find that petitioner‘s GID diagnosis is substantially supported by the record. Ms. Ellaborn was licensed under State law to make such a diagnosis. A second licensed professional concurred, as did petitioner‘s expert, a recognized authority in the field. Ms. Ellaborn‘s testimony concerning her diagnosis was persuasive. She considered and ruled out comorbid conditions, including depression and transvestic fetishism, and she believed her initial diagnosis was confirmed by petitioner‘s experience with the steps in the triadic therapy sequence.43
Absent evidence of a patent lack of qualifications, see, e.g., Flemming v. Commissioner, T.C. Memo. 1980-583 (rejecting diagnosis of cancer and kidney disease by dentist), this Court has generally deferred, in
D. Whether Cross-Gender Hormones, Sex Reassignment Surgery, and Breast Augmentation Surgery “Treat” GID
1. Cross-Gender Hormones and Sex Reassignment Surgery
Our conclusions that GID is a “disease” for purposes of
In contrast to their dispute over the meaning of “disease“, the parties have not disputed the meaning of “treatment” or “treat” as used in
“Treat” is defined in standard dictionaries as: “to deal with (a disease, patient, etc.) in order to relieve or cure“, Webster‘s New Universal Unabridged Dictionary 2015 (2003); “to care for or deal with medically or surgically“, Merriam Webster‘s
The regulations provide that medical care is confined to expenses “incurred primarily for the prevention or alleviation of a physical or mental defect or illness“.
Hormone therapy, sex reassignment surgery and, under certain conditions, breast augmentation surgery are prescribed therapeutic interventions, or treatments, for GID outlined in the Benjamin standards of care. The Benjamin standards are widely accepted in the psychiatric profession, as evidenced by the recognition of the standards’ triadic therapy sequence as the appropriate treatment for GID and transsexualism in numerous psychiatric and medical reference texts.44 Indeed, every psychiatric reference text that has been established as authoritative in this case endorses sex reassignment surgery as a treatment for GID in appropriate circumstances.45 No psychiatric reference text has
Nonetheless, respondent‘s expert Dr. Schmidt contends in his report that “physician acceptance of the * * * [Benjamin standards] is limited” and that the standards are guidelines and are only “accepted as more than guidelines by professionals who advocate for hormonal and surgical treatment of Gender Identity Disorder“. However, Dr. Schmidt conceded on cross-examination his prior sworn statement to the effect that he agreed with the Benjamin standards (except that psychotherapy should be mandatory rather than recommended) and was unaware of any significant disagreement with the Benjamin standards in the psychiatric field, other than those who believe that sex reassignment surgery is unethical,47 a position that Dr. Schmidt characterized as a minority one. Dr. Schmidt also acknowledged that all GID patients at the sexual disorders clinic at Johns Hopkins where he practices are advised to become familiar with the Benjamin standards of care, and he concedes that cross-gender hormone therapy and sex reassignment surgery “have recognized medical and psychiatric benefits” for persons suffering from GID.48 Dr. Schmidt also observed in his report that most physicians—indeed, most psychiatrists—know very little about GID or its treatment and shun GID patients, which may explain why the acceptance of the Benjamin standards is not broad based in American medicine. In any event, given his own acceptance of the standards and their use in his
Moreover, petitioner‘s expert Dr. Brown contends that in the case of severe GID, sex reassignment surgery is the only known effective treatment; indeed, Dr. Brown was unaware of any case where psychotherapy alone had been effective in treating severe GID. The U.S. Court of Appeals for the Seventh Circuit and the highest courts of two States have reached similar conclusions. See Maggert v. Hanks, 131 F.3d at 671; Sommers v. Iowa Civil Rights Commn., 337 N.W.2d 470, 473 (Iowa 1983); Doe v. Minn. Dept. of Pub. Welfare, 257 N.W.2d 816, 819 (Minn. 1977).49
Respondent also argues that petitioner‘s sex reassignment surgery did not “treat” disease within the meaning of
Psychiatric reference texts support Dr. Brown‘s position. See Green, “Gender Identity Disorder in Adults“, in New Oxford Textbook of Psychiatry 915 (Gelder, et al., eds., Oxford Univ. Press 2000) (stating “Follow-up reports on operated transsexuals are generally quite favorable” and describing a study where transsexual patients were randomly
However, even assuming some debate remains in the medical profession regarding acceptance of the Benjamin standards or the scientific proof of the therapeutic efficacy of sex reassignment surgery, a complete consensus on the advisability or efficacy of a procedure is not necessary for a deduction under
Finally, the Court does not doubt that, as respondent‘s expert Dr. Schmidt points out in his report, some medical professionals shun transsexual patients and consider cross-
In sum, the evidence establishes that cross-gender hormone therapy and sex reassignment surgery are well-recognized and accepted treatments for severe GID. The evidence demonstrates that hormone therapy and sex reassignment surgery to alter appearance (and, to some degree, function50) are undertaken by GID sufferers in an effort to alleviate the distress and suffering occasioned by GID, and that the procedures have positive results in this regard in the opinion of many in the psychiatric profession, including petitioner‘s and respondent‘s experts. Thus, a “reasonable belief” in the procedures’ efficacy is justified. See Havey v. Commissioner, supra at 412. Alleviation of suffering falls within the regulatory and caselaw definitions of treatment, see Starrett v. Commissioner, supra;
While our holding that cross-gender hormone therapy and sex reassignment surgery are not cosmetic surgery is based upon the specific definition of that term in
We consider separately the qualification of petitioner‘s breast augmentation surgery as deductible medical care, because respondent makes the additional argument that this surgery was not necessary to the treatment of GID in petitioner‘s case because petitioner already had normal breasts before her surgery. Because petitioner had normal breasts before her surgery, respondent argues, her breast augmentation surgery was “directed at improving * * * [her] appearance and [did] not meaningfully promote the proper function of the body or prevent or treat illness or disease“, placing the surgery squarely within the
For the reasons discussed below, we find that petitioner has failed to show that her breast augmentation surgery “[treated]” GID. The Benjamin standards provide that breast augmentation surgery for a male-to-female patient “may be performed if the physician prescribing hormones and the surgeon have documented that breast enlargement after undergoing hormone treatment for 18 months is not sufficient for comfort in the social gender role.” The record contains no documentation from the endocrinologist prescribing petitioner‘s hormones at the time of her surgery. To the extent Ms. Ellaborn‘s or Dr. Coleman‘s recommendation letters to Dr. Meltzer might be considered substitute documentation for that of the hormone-prescribing physician, Ms. Ellaborn‘s two letters are silent concerning the condition of petitioner‘s presurgical breasts, while Dr. Coleman‘s letter states that petitioner “appears to have significant breast development secondary to hormone therapy“. The surgeon here, Dr. Meltzer, recorded in his presurgical notes that petitioner had “approximately B cup breasts with a very nice shape.”51 Thus, all of the contemporaneous documentation of the condi-
Dr. Meltzer testified with respect to his notes that his reference to the “very nice shape” of petitioner‘s breasts was in comparison to the breasts of other transsexual males on feminizing hormones and that petitioner‘s breasts exhibited characteristics of gynecomastia, a condition where breast mass is concentrated closer to the nipple as compared to the breasts of a genetic female. Nonetheless, given the contemporaneous documentation of the breasts’ apparent normalcy and the failure to adhere to the Benjamin standards’ requirement to document breast-engendered anxiety to justify the surgery, we find that petitioner‘s breast augmentation surgery did not fall within the treatment protocols of the Benjamin standards and therefore did not “treat” GID within the meaning of
The breast augmentation surgery is therefore “cosmetic surgery” under the
Finally, respondent argues that petitioner‘s sex reassignment surgery was not “medically necessary“,53 which respondent contends is a requirement intended by Congress to apply to procedures directed at improving appearance, as evidenced by certain references to “medically necessary” procedures in the legislative history of the enactment of the cosmetic surgery exclusion of
Respondent‘s basis for the claim that petitioner‘s sex reassignment surgery was not medically necessary is the expert report and testimony of his expert, Dr. Schmidt. Dr. Schmidt acknowledges in his report that the definition of medical necessity “varies according to the defining party“. Dr. Schmidt never expressly defines the term, but he concludes that sex reassignment surgery is not medically necessary because (1) no “community” standard of care requires it (so that a practitioner‘s failure to provide the surgery would not constitute malpractice) and (2) in his view a therapist should remain neutral regarding the decision to have the surgery—which makes the surgery, Dr. Schmidt reasons, elective.55 Taken together, these two factors indicate that the surgery is not medically necessary, in Dr. Schmidt‘s view. Respondent has not shown that Dr. Schmidt‘s concept of medical necessity is widely accepted, and it strikes the Court as idiosyncratic and unduly restrictive. Moreover, Dr. Schmidt also expressed the view that sex reassignment surgery has “recognized medical and psychiatric benefits” and is “certainly medically helpful“.
Dr. Schmidt conceded in his report that a significant segment of those physicians who are knowledgeable concerning GID believes that sex reassignment surgery is medically necessary, ranging from those who believe such surgery is generally medically necessary in treating GID to those who think it is medically necessary in selected cases. As noted, petitioner‘s expert Dr. Brown believes that sex reassignment surgery is often the only effective treatment for severe GID, and a number of courts have concurred. Dr. Brown therefore believes the surgery is medically necessary for severe GID. See also Sadock & Sadock, supra (“When the patient‘s gender dysphoria is severe and intractable, sex reassignment may be the best solution.“) Several courts have also concluded in a variety of contexts that sex reassignment surgery for severe GID or transsexualism is medically necessary. See Meriwether v. Faulkner, 821 F.2d 408, 412 (7th Cir. 1987); Pinneke v. Preisser, 623 F.2d 546, 548 (8th Cir. 1980); Sommers v. Iowa Civil Rights Comm‘n, 337 N.W.2d 470, 473 (Iowa 1983); Doe v. Minn. Dept. of Pub. Welfare, 257 N.W.2d 816, 819 (Minn. 1977); Davidson v. Aetna Life & Cas. Ins. Co., 101 Misc. 2d 1, 420 N.Y.S.2d 450, 453 (Sup. Ct. 1979).
The mental health professional who treated petitioner concluded that petitioner‘s GID was severe, that sex reassignment surgery was medically necessary, and that petitioner‘s prognosis without it was poor. Given Dr. Brown‘s expert testimony,56 the judgment of the professional treating petitioner, the agreement of all three experts that untreated GID can result in self-mutilation and suicide, and, as conceded by Dr. Schmidt, the views of a significant segment of knowledgeable professionals that sex reassignment surgery is medically necessary for severe GID, the Court is persuaded that petitioner‘s sex reassignment surgery was medically necessary.
IV. Conclusion
The evidence amply supports the conclusions that petitioner suffered from severe GID, that GID is a well-recognized and serious mental disorder, and that hormone therapy and sex reassignment surgery are considered appropriate and effective treatments for GID by psychiatrists and other mental health professionals who are knowledgeable concerning the condition. Given our holdings that GID is a “disease” and that petitioner‘s hormone therapy and sex reassignment surgery “[treated]” it, petitioner has shown the “existence * * * of a disease” and a payment for goods or services “directly or proximately related” to its treatment. See Jacobs v. Commissioner, 62 T.C. 813, 818 (1974). She likewise satisfies the “but for” test of Jacobs, which requires a showing that the procedures were an essential element of the treatment and that they would not have otherwise been undertaken for nonmedical reasons. Petitioner‘s hormone therapy and sex reassignment surgery were essential elements of a widely accepted treatment protocol for severe GID. The expert testimony also establishes that given (1) the risks, pain, and extensive rehabilitation associated with sex reassignment surgery, (2) the stigma encountered by persons
Petitioner has shown that her hormone therapy and sex reassignment surgery treated disease within the meaning of
To reflect the foregoing and concessions by the parties,
Decision will be entered under Rule 155.
Reviewed by the Court.
COLVIN, COHEN, THORNTON, MARVEL, WHERRY, PARIS, and MORRISON, JJ., agree with this majority opinion.
HALPERN J., concurring: I substantially agree with the majority. I write separately to offer one comment on the majority‘s rationale for disallowing petitioner‘s deduction for her breast augmentation surgery and to offer additional comments on positions taken in other side opinions.
I. Breast Augmentation Surgery
I am satisfied with the majority‘s decision to disallow a deduction for petitioner‘s breast augmentation surgery on the ground that it did not fall within the treatment protocols of the Benjamin standards. Majority op. p. 73. For me, that petitioner failed to prove her doctors adhered to the Benjamin standards requirement that they document her breast-engendered anxiety is sufficient to find that the surgery did not fall within those standards. The majority‘s added reason, “the breasts’ apparent normalcy“, majority op. p. 73, I find
II. Statutory Interpretation
A. Introduction
We face a task that is not unusual for us, that is, interpreting the
B. Sex Reassignment Surgery, Treatment, and Mitigation
For the sake of argument, I accept the distinction Judge Gustafson draws between the words “treat” and “mitigate“. Nevertheless, his argument that sex reassignment surgery only mitigates (and does not treat) GID rests on a subtle misunderstanding of that disease.
For Judge Gustafson, petitioner‘s disease was the “delusion” that she was a female. Gustafson op. note 9. Judge Gustafson cannot fathom that someone with a healthy male body who believes he is female is not sick of mind. Yet the record suggests that the disease is more than that. A
Petitioner‘s expert, George R. Brown, M.D., was of the opinion that sex reassignment surgery does not change the patient‘s belief that his or her psychological gender does not match his or her biological sex. Nevertheless, he was of the opinion that, by virtue of petitioner‘s hormone therapy and sex reassignment surgery, she was cured of her GID, “which due to the severity and long-standing nature of her condition, would not have been possible without hormones and sex reassignment surgery.” He testified that, by “cured“, he meant that the symptoms of the disorder were no longer present for an extended period. She was cured, he testified, because, when he examined her in March 2007 to prepare his expert testimony, she no longer met the criteria for a diagnosis of GID. For instance, he testified, she had been free for a long time of clinically significant distress or impairment resulting from a misalignment of her body and her psychological sex. Indeed, his explanation comports with a consideration of the diagnostic criteria in DSM-IV-TR (cited by the majority, majority op. p. 36) for GID. In discussing the diagnostic features of GID, DSM-IV-TR states: “To make the diagnosis [of GID], there must be evidence of clinically significant distress or impairment in social, occupational, or other important areas of functioning.”
Dr. Brown seems to have concluded that petitioner was cured according to the notion discussed above that a disease is characterized by an identifiable group of signs or symptoms,3 and when those signs or symptoms, once present, are
C. The Intent of Congress
Judge Goeke rejects surgery as a treatment for GID because of his contextual reading of the statute: “I believe that the word ‘treat’ in the context of the cosmetic surgery exclusion implies that for expenses for any procedure to be deductible, the procedure must address a physically related malady.” Goeke op. p. 102. Judge Goeke, like Judge Gustafson, however, fails to provide any convincing support for his position.
Judge Goeke‘s contextual argument relies heavily on his discerning congressional purpose from the report of the Senate Finance Committee discussed by the majority, majority op. note 27, and quoted by Judge Goeke, Goeke op. p. 103. In the light of the report language that he quotes, Judge Goeke argues: “The * * * Senate Finance Committee report indicates that Congress intended to allow deductions only for cosmetic surgery to correct physical maladies resulting from disease or physical disfigurement“. Goeke op. p. 103. I disagree in general with Judge Goeke‘s reliance on the report given the unambiguous language of
In Campbell v. Commissioner, 108 T.C. 54, 62–63 (1997), we set forth the well-established and well-understood rules for construing a provision of the
In construing * * * [a provision of the Internal Revenue Code], our task is to give effect to the intent of Congress, and we must begin with the statutory language, which is the most persuasive evidence of the statutory purpose. United States v. American Trucking Associations, Inc., 310 U.S. 534, 542-543 (1940). Ordinarily, the plain meaning of the statutory language is conclusive. United States v. Ron Pair Enters. Inc., 489 U.S. 235, 242 (1989). Where a statute is silent or ambiguous, we may look to legislative history in an effort to ascertain congressional intent. Burlington N. R.R. v. Oklahoma Tax Comm‘n, 481 U.S. 454, 461 (1987); Griswold v. United States, 59 F.3d 1571, 1575-1576 (11th Cir. 1995). However, where a statute appears to be clear on its face, we require unequivocal evidence of legislative purpose before construing the statute so as to override the plain meaning of the words used therein. Huntsberry v. Commissioner, 83 T.C. 742, 747-748 (1984); see Pallottini v. Commissioner, 90 T.C. 498, 503 (1988), and cases there cited.
The word “treat” is found in
I would also keep in mind that, as quoted above, “where a statute appears to be clear on its face, we require unequivocal evidence of legislative purpose before construing the statute so as to override the plain meaning of the words
D. The Plain Language of the Provision
Judge Foley takes both the majority and respondent to task for not adhering to the plain language of
He further argues that, even if not cosmetic surgery within the meaning of
I agree with Judge Foley that
In formal logic, there is a set of rules, De Morgan‘s laws, relating the logical operators “and” and “or” in terms of each other via negation. E.g., http://en.wikipedia.org/wiki/De_Morgan‘s_laws. The rules are:
not (p or q) = (not p) and (not q)
not (p and q) = (not p) or (not q)
The first of the rules would appear to govern the disjunction in
Finally, Judge Foley argues that the “similar procedures” referred to in
Without deciding whether
HOLMES, J., concurring: On this record, for this taxpayer, and on the facts found by the Judge who heard this case, I agree with the majority‘s conclusion—that O‘Donnabhain can deduct the cost of her hormone therapy and sex-reassignment surgery, but not her breast-augmentation surgery. I also agree with the majority that GID is a mental disorder, and therefore a disease under
A.
What does it mean for a person born male to testify, as did O‘Donnabhain, that “I was a female. The only way for me to—the only way for me to be the real person that I was in my mind was to have this surgery“?
This is not like saying “Lab tests show Vibrio cholerae, and therefore I have cholera“, or “the X-ray shows a tumor in the lung and therefore I have lung cancer“, or even “the patient reports that he is Napoleon and is being chased by the English“, and therefore has schizophrenia.
In the crash course on transsexualism that this case has forced on us, there are at least four approaches that those who‘ve studied the phenomenon of such feelings have had. One response, curtly dismissed by the majority, is that this is a form of delusion:
It is not obvious how this patient‘s feeling that he is a woman trapped in a man‘s body differs from the feeling of a patient with anorexia nervosa that she is obese despite her emaciated, cachectic state. We don‘t do liposuction on anorexics. Why amputate the genitals of these poor men? Surely, the fault is in the mind and not the member.
McHugh, “Psychiatric Misadventures“, Am. Scholar 497, 503 (1992). For such psychiatrists, gender follows sex, is a fundamental part of human nature, and is not easily amenable to change. Those who take this view look at transsexual persons to uncover what they suspect are comorbidities—other things wrong with their patients that might explain the undoubtedly powerful feeling that they are wrongly sexed and whose treatment might alleviate the stress that it causes them.
A second approach focuses on the notion of “feeling female.” What does this mean? The answer adopted by the majority and urged by O‘Donnabhain is that this is a shorthand way of saying that a transsexual person‘s gender (i.e., characteristic way of feeling or behaving, and conventionally labeled either masculine or feminine) is strongly perceived by her as mismatched to her sex (i.e., biological characteristics).1 This, too, is highly contested territory—gender being
thought by many, particularly feminists, to be entirely something society imposes on individuals. To such theorists, transsexualism is likewise a social construct:
The medical profession need not direct the gender dissatisfied to surgery. Counselling is possible to encourage clients to take a more political approach to their situation and to realize that they can rebel against the constraints of a prescribed gender role, and relate to their own sex in their native bodies.
Jeffreys, “Transgender Activism: A Lesbian Feminist Perspective,” 1 J. Lesbian Stud. 55, 70 (1997) (suggesting SRS be proscribed as “crime against humanity“); see also id. at 56 (citing Raymond, The Transsexual Empire (Teachers College Press 1994)).
Yet a third school of thought is that the origins of at least many (but not all) transsexual feelings—particularly those with extensive histories of secret transvestism—is that it‘s not about gender, but about a particular kind of erotic attachment. See, e.g., Blanchard, “Typology of Male-to-Female Transsexualism,” 14 Archives Sexual Behav. 247 (1985); Cohen-Kettenis & Gooren, “Transsexualism: A Review of Etiology, Diagnosis and Treatment,” 46 J. Psychosomatic Res. 315, 321-22 (1999) (summarizing research); Lawrence, “Clinical and Theoretical Parallels Between Desire for Limb Amputation and Gender Identity Disorder,” 35 Archives Sexual Behav. 263 (2006). Scholars of this school regard SRS as justified—not so much to cure a disease, but because SRS relieves suffering from an intense, innate, fixed, but otherwise unobtainable desire. See, e.g., Dreger, “The Controversy Surrounding The Man Who Would Be Queen: A Case History of the Politics of Science, Identity, and Sex in the Internet Age,” 37 Archives Sexual Behav. 366, 383-84 (2008).
These are all intensely contested viewpoints. The fourth and currently predominant view among those professionally involved in the field is the one urged by O‘Donnabhain, and
I profess no expertise in weighing the merits of biodeterminism, feminism, or any of the competing theories on this question. But the majority‘s decision to devote significant analysis to the importance of characterizing GID as a disease, and SRS as its medically necessary treatment, pulls me into such matters to give context to the majority‘s analysis.
B.
The majority relies heavily on the Benjamin standards to establish the proper diagnosis and treatment of GID. I certainly agree that these standards express the consensus of WPATH—the organization that wrote them and has seen six revisions of them over the last 30 years. But the consensus of WPATH is not necessarily the consensus of the entire medical community. The membership of WPATH is limited, consisting of professionals that work with transsexual patients, including social workers, psychiatrists, and surgeons that perform SRS.
The Commissioner‘s expert, Dr. Schmidt, testified that the Benjamin standards are merely guidelines rather than true standards of care and that they enjoy only limited acceptance in American medicine generally. The majority cites several psychiatric textbooks that mention the Benjamin standards to refute Dr. Schmidt‘s claim and as evidence of their general acceptance in the psychiatric profession. Majority op. note 45. But the textbooks treat the Benjamin standards as mere guidelines—which may or may not be followed—rather than clearly endorsing SRS. Let‘s take a closer look at the excerpted language from each of the majority‘s sources:
- “[The Benjamin standards] [provide] a valuable guide;”
- “[T]he patient may be considered for surgical reassignment;”
- “The [Benjamin standards of care] programme includes * * * possibly sex reassignment * * * patients * * * can be referred for surgery;”
- “[S]ex reassignment may be the best solution;” and
- After noting that the treatment of gender identity disorders is “not as well-based on scientific evidence as some psychiatric disorders,” the cited text states that “[l]iving in the aspired-to gender role * * * enables one of three decisions: to abandon the quest, to simply live in this new role, or to proceed with breast or genital surgery.”
See majority op. note 45 (all emphasis added and citations omitted). The textbooks do not say that SRS “should” or “must” be used as treatment for GID, but only that it “may” or “can” be used. The members of WPATH certainly follow the Benjamin standards, but since they are merely a “guide” and “not as well-based on scientific evidence” as other psychiatric treatments, their general acceptance is questionable. The American Psychiatric Association‘s practice guidelines—generally accepted standards of care—make no mention of the Benjamin standards.2 Even the Benjamin standards themselves contain the following caveat in the introduction:
All readers should be aware of the limitations of knowledge in this area and of the hope that some of the clinical uncertainties will be resolved in the future through scientific investigation.
The Harry Benjamin International Gender Dysphoria Association‘s Standards of Care for Gender Identity Disorders, Sixth Version 1 (2001).
WPATH is also quite candid that it is an advocate for transsexual persons, and not just interested in studying or treating them. Its website includes a downloadable statement that can be sent to insurers or government agencies denying reimbursement or payment for surgery to those diagnosed with GID. WPATH, “WPATH Clarification on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage in the U.S.A.,” (June 17, 2008), available at http://www.tgender.net/taw/WPATHMedNecofSRS.pdf (last visited
Genital reconstruction is not required for social gender recognition, and such surgery should not be a prerequisite for document or record changes * * *. Changes to documentation are important aids to social functioning, and are a necessary component of the pre-surgical process * * *.
Id. at 2. Claims of medical necessity as they affect public-record rules at least suggest the possibility that WPATH is medicalizing its advocacy.
And even WPATH‘S method of identifying candidates for SRS—the method we describe and effectively endorse today—is very much contestable. A leading article (admittedly ten years old at this point, but still oft cited), concluded on this topic that “[u]nfortunately, studies evaluating the indispensability of components of the currently employed procedures are nonexistent.” Cohen-Kettenis & Gooren, supra at 325.
II.
The majority reasons that O‘Donnabhain‘s hormone therapy and SRS treat a disease, and so their costs are deductible expenses of medical care. It then adds a coda to the opinion holding that these treatments are “medically necessary.” Majority op. p. 76.
A.
The best way of framing the question of deductibility is to view the medical-expense provisions in the Code as creating a series of rules and exceptions.
To show how this works in practice, consider reconstructive breast surgery after a mastectomy. This is a personal expense (i.e., not incurred for profit, in a trade or business, etc.). But such surgery affects a “structure of the body” under
I agree with the majority‘s holding that O‘Donnabhain‘s GID is a disease. Until the collapse of psychiatry into the waiting arms of neurology is complete, courts must of necessity rely on the listing and classification of disorders in the DSM.3 But once this point is made, we need not go further into a discussion of the proper standards of care or opine on their effectiveness. Our precedent, as the majority correctly points out, allows for the deductibility of treatments that are highly unlikely to survive rigorous scientific review. See, e.g., Dickie v. Commissioner, T.C. Memo. 1999-138 (naturopathic cancer treatments); Tso v. Commissioner, T.C. Memo. 1980-399 (Navajo sings as cancer treatment); see also Rev. Rul. 55-261, 1955-1 C.B. 307, 307 (services of Christian Science practitioners) (subsequent modifications irrelevant). The key question under
This is essentially a test looking to the good-faith, subjective motivation of the taxpayer. There is no doubt that O‘Donnabhain meets it with regard to her hormone therapy and SRS.
1. It is the majority‘s next step in the analysis—its reading of the definition of cosmetic surgery in
That should have been enough to dispense with the Commissioner‘s argument on this point. But the majority tacks on an extra section onto its opinion concluding that SRS and hormone therapy for transsexual persons are “medically necessary.” Avoidance would have been the sounder course, because “medically necessary” is a loaded phrase. Construing it puts us squarely, and unnecessarily, in the middle of a serious fight within the relevant scientific community, and the larger battle among those who are deeply concerned with the proper response to transsexual persons’ desires for extensive and expensive surgeries.
As the majority thoroughly explains, the theory that SRS is the best—and perhaps the only—treatment for GID has been extensively promoted. Dr. Brown, O‘Donnabhain‘s expert witness, summed up the theory—SRS is medically necessary to “cure or mitigate the distress and maladaption caused by GID.” Majority op. p. 43. For governments or insurers to exclude coverage thus becomes perceived as discrimination or an unjust deference to stereotypes of transsexual persons. Acceptance of SRS as medically necessary has become a cause not only for those with GID, but for a wider coalition as well. See Jeffreys, supra.
Our discussion of the science is, though, weak even by the low standards expected of lawyers. Tucked into a footnote is
The majority also criticizes Dr. Schmidt for citing a religious publication. See majority op. note 47. It‘s true that one of the sources Dr. Schmidt cited was an article by the former chairman of Johns Hopkins’ Psychiatry Department in First Things. But it is inadequate, if we‘re going to weigh in on this debate, to imply that Johns Hopkins’ conclusion was based merely on an essay in “a religious publication.”
First Things, like Commentary and a host of other general-interest but serious periodicals, seeks out the small subset of specialists who can write well.4 Essays by such people don‘t aspire to be original research, but they are often based on original research. And so was the First Things article by Dr. McHugh, which summarized the research of a third member of the Hopkins Psychiatry Department, Dr. Jon Meyer. Meyer & Reter, “Sex Reassignment,” 36 Archives Gen. Psychiatry 1010 (1979). In the study, Dr. Meyer followed up with former Johns Hopkins Gender Identity Clinic patients. Unlike authors of previous studies, Meyer included both unoperated GID patients and post-SRS patients in his study—allowing him to compare the well-being of the operated and unoperated patients. Using patient interviews, he issued initial and followup adjustment scores for both the operated and unoperated patients. Both the operated and unoperated subjects’ mean scores improved after the followup period, but there was no significant difference between the improvement
There are numerous other clues that the picture of scientific consensus that the majority presents is not quite right. Consider where the surgeries are currently performed. SRS was for many years primarily undertaken in research hospitals that had “gender identity clinics.”5 These clinics would conduct research on SRS and evaluate its effectiveness. Johns Hopkins, under the leadership of Dr. John Money,6 opened the first U.S. gender identity clinic in 1965. Money & Schwartz, “Public Opinion and Social Issues in Transsexualism: A Case Study in Medical Sociology,” in Transsexualism and Sex Reassignment 253 (Green & Money eds., 1969). After Johns Hopkins took the lead, other university-based clinics jumped at the opportunity to research transsexualism and perform SRS.7 But the first research clinic to perform and study SRS was also the first to cut it off. The Meyer study had found no significant difference in adjustment between those who had SRS and those who didn‘t, and in light of that study Johns Hopkins announced in 1979 that it would no longer perform SRS. “No Surgery for Transsexuals,” Newsweek, Aug. 27, 1979, at 72. After the Hopkins clinic closed, the other university-based clinics either closed or ended their university affiliations. Denny, supra. Stanford, for example, in 1980 spun off its university-affiliated clinic to a private center that performed SRS but didn‘t conduct research. Levy, “Two Transsexuals Reflect on University‘s Pioneering Gender Dysphoria Program,” Stanford Rep., May 3, 2000.
It is true that the Meyer piece has been the subject of lively controversy,9 but it is certainly the case that it prompted Hopkins to get out of the SRS business; and over the next few years every other teaching hospital also left the field. Denny, supra. If we needed to opine on the medical necessity of SRS, some sensitivity to that academic controversy, particularly the problem of how to set up a proxy control group for those undergoing sex reassignment, as well as some sensitivity to defining and measuring the effectiveness of surgery, would have to be shown. I do not believe we should have addressed the issue.10
2. There is, however, a related cluster of problems that judges and lawyers have had to solve—questions of the medical necessity of SRS in:
- Eighth Amendment prisoner cases;
- ERISA litigation; and
- Medicaid and Medicare reimbursement.
Does it follow that prisons have a duty to administer (if the prisoner requests it) * * * [SRS] to a prisoner who unlike Maggert is diagnosed as a genuine transsexual? The cases do not answer “yes,” but they make the question easier than it really is by saying that the choice of treatment is up to the prison. The implication is that less drastic (and, not incidentally, less costly) treatments are available for this condition. * * *
Maggert, 131 F.3d at 671 (citations omitted).
The medical necessity of SRS shows up in ERISA litigation as well. See, e.g., Mario v. P & C Food Mkts., Inc., 313 F.3d 758 (2d Cir. 2002). Mario, a female-to-male transsexual, sued for reimbursement of the cost of his sex-reassignment surgery from his employer‘s ERISA-governed health insurance plan. The plan administrator denied his claim for lack of medical necessity based on an investigation that included the following:
[r]esearch on the issue of transsexualism, inquiry into the policies of other employers and insurance carriers concerning coverage of gender reassignment procedures, consultation with medical centers having specialized knowledge of transsexualism and sexual reassignment surgeries, and consultation with medical personnel employed by [the plan administrator], including a psychiatrist retained by [the plan administrator], Dr. Ivan Fras. Dr. Fras opined that the surgical removal of healthy organs, for no
purpose other than gender dysphoria, would fall into the category of cosmetic surgery, and would therefore not be “medically necessary.” On the basis of her investigation, * * * [the plan administrator employee] concluded that there was substantial disagreement in the medical community about whether gender dysphoria was a legitimate illness and uncertainty as to the efficacy of reassignment surgery. * * *
Id. at 765-66. The plan administrator‘s SRS-lacks-medical-necessity conclusion survived de novo review by the Second Circuit.
Medicare‘s administrator—The Centers for Medicare and Medicaid Services—has weighed in on the issue by denying reimbursement for SRS on the following basis:11
Because of the lack of well controlled, long term studies of the safety and effectiveness of the surgical procedures and attendant therapies for transsexualism, the treatment is considered experimental. Moreover, there is a high rate of serious complications of these surgical procedures. For these reasons, transsexual surgery is not covered.
54 Fed. Reg. 34572 (Aug. 21, 1989).
The legal issues presented in each of these clusters of cases differ from the legal question—are O‘Donnabhain‘s procedures deductible under
III.
I do not think that highlighting what I think is the incorrect interpretation of the Code by the majority is enough. O‘Donnabhain carefully argued in the alternative, and it is to those alternative arguments that I now turn.
A.
I start back at the beginning with
This should have obviated the need to wade into the disputes about classification, etiology, and diagnosis of O‘Donnabhain‘s GID. The majority does cite one sentence from the applicable regulation for the proposition that medical care is confined to expenses “incurred primarily for the prevention or alleviation of a physical or mental defect or illness.” Majority op. p. 65 (quoting
There is therefore little doubt that the expenses O‘Donnabhain incurred qualify as medical care under
B.
Under
The legislative history of the provision, which the majority quotes, lists some of the procedures that Congress aimed at including in the presumptively nondeductible category:
under the provision, procedures such as hair removal electrolysis, hair transplants, lyposuction [sic], and facelift operations generally are not deductible. In contrast, expenses for procedures that are medically necessary to promote the proper function of the body and only incidentally affect the patient‘s appearance or expenses for the treatment of a disfiguring condition arising from a congenital abnormality, personal injury or trauma, or disease (such as reconstructive surgery following removal of a malignancy) continue to be deductible * * *.
Majority op. note 27. The list isn‘t in the Code itself, so it‘s not quite right to hold we must apply the maxim of ejusdem generis, but it is helpful in suggesting the meaning of the key words that did make it into law. Without more specific guidance from the Secretary in the form of a regulation, I would conclude that “directed at improving” reflects two concepts. The first is that the subjective motivation of the patient (his “focus“) is important, and it is his primary motivation that is most important. The second is that the notion of “improving” suggests a baseline from which something is improved—all the procedures in the committee‘s list are those commonly recognized by the average observer in our society as improving appearance in a way that a biological man‘s taking female hormones and undergoing extensive genital surgery do not. (I also concur with the majority that the breast surgery did not “treat disease.“)
I therefore end up in the same place as the majority. O‘Donnabhain‘s hormone treatment and SRS established a biological baseline of a new sexual appearance for her. It was, of course, foreseeable, and she intended, to change her appearance. But I also agree with her (as the majority does) that her purpose was to relieve the pathological anxiety or
But the breast-augmentation surgery is different. O‘Donnabhain‘s new baseline having been established through hormones, I would hold that that surgery was directed at improving—in the sense of focused on changing what she already had—her already radically altered appearance. Denying the deduction for this procedure while allowing it for the hormones and SRS also seems a reasonable distinction—breast surgery is likely one of the commonest types of cosmetic surgery and (if not undergone after cancer surgery or trauma or the like) highly likely to be within the common public meaning of that phrase.
That leaves only the question of whether O‘Donnabhain‘s breast-augmentation surgery meets one of the exceptions to the nondeductibility of cosmetic surgery listed in
I therefore respectfully concur with majority‘s result, if not its reasoning.
GOEKE, J., agrees with this concurring opinion.
GOEKE, J., concurring in the result only: Although I concur in the result reached by the majority, I respectfully disagree with the majority‘s analysis of
“Whether and to what extent deductions shall be allowed depends upon legislative grace; and only as there is clear provision therefor can any particular deduction be allowed.” New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). As a general rule, “personal, living, or family expenses” are not deductible.
This case presents the question whether the cost of surgery to alter nondisfigured, healthy tissue is deductible when the surgery is performed to address a mental disorder or disease.
(9) COSMETIC SURGERY.—
(A) IN GENERAL.—The term “medical care” does not include cosmetic surgery or other similar procedures, unless the surgery or procedure is necessary to ameliorate a deformity arising from, or directly related to, a congenital abnormality, a personal injury resulting from an accident or trauma, or disfiguring disease.
(B) COSMETIC SURGERY DEFINED.—For purposes of this paragraph, the term “cosmetic surgery” means any procedure which is directed at improving the patient‘s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease.
The majority opinion relies on two of the last four words to the exclusion of the rest of
The definition of “cosmetic surgery” in subparagraph (B) begins with surgery “directed at improving the patient‘s appearance“. The transformation of petitioner‘s genitals was not directed at improving petitioner‘s appearance but rather was functional. The authorities cited in the majority opinion for the proposition that genital surgery to treat GID is not cosmetic surgery support this conclusion. See, e.g., White v. Farrier, 849 F.2d 322 (8th Cir. 1988). Given the factual findings supporting the medical purpose of such surgery, it is therefore deductible as medical care under
I disagree with the majority opinion because it leaves open the possibility that expenses for surgery directed solely at altering physical appearance may nevertheless be deductible if it is intended to alleviate mental pain and suffering. I do not read the word “treat” in the context of
I would read the statute in conformity with the legislative history. I believe that the word “treat” in the context of the cosmetic surgery exclusion implies that for expenses for any procedure to be deductible, the procedure must address a physically related malady. If surgery to relieve mental suffering without a physical nexus is deductible, a line is crossed from physical to mental treatment. A court should not cross that line in applying
The majority holds that the line on deductibility for mental conditions has been crossed in general and that evolving mental diagnoses are considered diseases for purposes of
under the provision, procedures such as hair removal electrolysis, hair transplants, lyposuction [sic], and facelift operations generally are not deductible. In contrast, expenses for procedures that are medically necessary to promote the proper function of the body and only incidentally affect the patient‘s appearance or expenses for the treatment of a disfiguring condition arising from a congenital abnormality, personal injury or trauma, or disease (such as reconstructive surgery following removal of a malignancy) continue to be deductible * * *.
There is no indication that the exclusion of surgery directed at improving appearance omits surgery related to helping a person feel differently about himself or herself even if such a change in feelings relieves mental suffering. The above-quoted language from the Senate Finance Committee report indicates that Congress intended to allow deductions only for cosmetic surgery to correct physical maladies resulting from disease or physical disfigurement, as opposed to cosmetic surgery on healthy tissue. The report uses “malignancy” as an example of a disease which can cause a deformity requiring cosmetic surgery which would be deductible.
Accepting that the alteration of physical appearance can be a remedy to address a mental illness, the question remains whether deductions for such treatment are barred by a specific legislative mandate. I would hold that the breast surgery in this case is not medically necessary as that term is applied in deciding whether an expense is excluded under
In other contexts there is little question that deductions for breast augmentation or facial reconstruction surgery apart from physical disease or disfigurement or physical abnormality would be barred by
HOLMES, J., agrees with this concurring in the result only opinion.
FOLEY, J., concurring in part1 and dissenting in part: Preoccupied with establishing whether gender identification disorder (GID) is a disease, respondent and the majority fail to correctly explicate and apply the statute. In allowing deductions relating to petitioner‘s expenses, the majority has performed, on congressional intent, interpretive surgery even more extensive than the surgical procedures at issue—and respondent has dutifully assisted. This judicial transformation of
I. The Majority Does Not Adhere to the Plain Language of Section 213(d)(9)
(9) COSMETIC SURGERY.—
(A) IN GENERAL.—The term “medical care” does not include cosmetic surgery or other similar procedures, unless the surgery or procedure is necessary to ameliorate a deformity arising from, or directly related to, a congenital abnormality, a personal injury resulting from an accident or trauma, or disfiguring disease.
(B) COSMETIC SURGERY DEFINED.—For purposes of this paragraph, the term “cosmetic surgery” means any procedure which is directed at improving the patient‘s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease. [Emphasis added.]
The majority‘s analysis proceeds as if the statute employs “and” rather than “or” between the “meaningfully promote the proper function of the body” and “prevent or treat illness or disease” prongs. Respondent appears to agree with this interpretation in lieu of a plain reading of the statute. In essence, the majority and respondent engage in reconstruction, rather than strict construction, of
Simply put, the fact that a procedure treats a disease is not sufficient to exclude the procedure from the definition of “cosmetic surgery“. Indeed, to adopt the majority‘s reasoning and its accompanying conclusion the Court must ignore that Congress in
Judge Halpern asserts that this analysis “disregards the rules of grammar and logic” and that De Morgan‘s laws dictate the majority‘s holding. Halpern op. p. 83. If there is a negation of the conjunction “or“, De Morgan‘s laws convert “or” to “and“. Judge Halpern‘s mechanical application of De Morgan‘s laws is not prudent. Simply put, congressional intent is not subservient to De Morgan‘s laws. Courts dealing with statutes that contain the negation of a conjunction have employed interpretive principles to ensure adherence to Congress’ plain language.3 In short,
II. The Legislative History Provides No Support for the Deduction of Petitioner‘s Expenses
The lack of unanimity among my colleagues may suggest that
expenses for procedures that are medically necessary to promote the proper function of the body and only incidentally affect the patient‘s appearance or expenses for treatment of a disfiguring condition arising from a congenital abnormality, personal injury or trauma, or disease (such as reconstructive surgery following removal of a malignancy) * * *. [136 Cong. Rec. 30485, 30570 (1990); emphasis added.]
Expenses relating to SRS and the accompanying procedures again did not make the list.
III. Even If Not Cosmetic Surgery, Petitioner‘s Procedures May Be “Similar” to Cosmetic Surgery
by arguing that the hormone therapy was directed at improving petitioner‘s appearance and did not treat an illness or disease, respondent concedes that a “similar procedure” as used in sec. 213(d)(9)(A) is delimited by the definition of “cosmetic surgery” in sec. 213(d)(9)(B)—that is, that a “similar procedure” is excluded from the definition of “medical care” if it “is directed at improving the patient‘s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease“. [Majority op. note 31; emphasis added.]
This analysis of the statute is simply wrong. The term “similar procedures” is not “delimited by the definition of ‘cosmetic surgery’ in sec[tion] 213(d)(9)(B)“. While it is arguable that it could be defined in this manner, that is not what the statute provides. “Cosmetic surgery” is defined in
IV. Congressional Activity, Rather Than Respondent‘s Litigation Laxity, Should Determine Deductibility
Apparently respondent, but not Congress, readily concedes that a procedure (i.e., directed at improving appearance but not meaningfully promoting proper bodily function) is excluded from the definition of cosmetic surgery if it treats
WELLS, VASQUEZ, KROUPA, and GUSTAFSON, JJ., agree with this concurring in part and dissenting in part opinion.
GUSTAFSON, J., concurring in part and dissenting in part: I concur with the result of the majority opinion to the extent that it disallows a medical care deduction under
Petitioner is the father of three children from a marriage that lasted 20 years. Although physically healthy, he was unhappy with his male anatomy and became profoundly so, to the point of contemplating self-mutilation. Mental health professionals diagnosed him as suffering from Gender Identity Disorder (GID). With their encouragement, he received medical procedures: In years before the year at issue here, he received injections of female hormones1 and underwent facial surgery and other plastic surgery; and then in the year at issue he paid a surgeon about $20,000 to remove his genitals, fashion simulated female genitals, and insert breast implants. After these procedures, petitioner “passed” as female and became happier. She2 claimed an income tax deduction for the cost of this “sex reassignment surgery” (SRS). The question in this case is whether
The surgical procedures involved in this case are startling, and to avoid distraction from the actual issues, it is expedient to affirm what is not at issue here: Neither the tax collector nor the Tax Court sits as a board of medical review, as if it were reconsidering, validating, or overruling the medical profession‘s judgments about what medical care is appropriate or effective for what medical conditions. Likewise, neither the tax collector nor the Tax Court passes judgment on the ethics of legal medical procedures, since otherwise deductible medical expenses are not rendered non-deductible on ethical grounds. See, e.g., Rev. Rul. 73-201, 1973-1 C.B. 140 (cost of legal abortion held deductible under section 213).
Rather, we decide only a question of deductibility for income tax purposes. In
Consequently, I accept the majority‘s conclusions, based on expert medical testimony describing medical consensus,3 that GID is a serious mental condition, that petitioner suffered from it, that the medical consensus favors SRS for a GID patient like petitioner, that SRS usually relieves the patient‘s suffering to some significant extent, and that SRS was prescribed to and performed on petitioner in accord with prevailing standards of medical care.
II. “[M]edical care“, “cosmetic surgery“, and “other similar procedures” in section 213
As a general rule, “personal, living, or family expenses” are not deductible.
A. The language of section 213
The definition of deductible “medical care” in
SEC. 213(d). DEFINITIONS.—For purposes of this section—
(1) The term “medical care” means amounts paid—
(A) for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body * * *.
*
*
*
*
*
*
*
(9) COSMETIC SURGERY.—
(A) IN GENERAL.—The term “medical care” does not include cosmetic surgery or other similar procedures, unless the surgery or procedure is necessary to ameliorate a deformity arising from, or directly related to, a congenital abnormality, a personal injury resulting from an accident or trauma, or disfiguring disease.
(B) COSMETIC SURGERY DEFINED.—For purposes of this paragraph, the term “cosmetic surgery” means any procedure which is directed at improving the patient‘s appearance4 and does not meaningfully promote the proper function of the body or prevent or treat illness or disease.
Thus, in 1942 “medical care” was defined in subsection (d)(1)(A) with two alternative prongs—first, a list of five modes of care for disease, i.e., “diagnosis, cure, mitigation, treatment, or prevention“;5 and second, care that “affect[s] any structure or function of the body“.
In 1990 the concepts of both these prongs were narrowed in
Two features of this statutory language that are virtually overlooked in the majority opinion should be noted: First,
Second, assuming that
B. The different terminology of subsections (d)(1)(A) and (d)(9)(B)
As is noted above, “medical care” is defined in
However, we consider here the very different and specific congressional intent 48 years later in 1990, when Congress enacted
Congress provided that, to be deductible, an otherwise cosmetic procedure must “prevent or treat” a disease. Petitioner did not argue (and the majority does not hold) that SRS “prevents” GID (rather, SRS is offered only to persons who already suffer from the disorder, for whom “prevention” would come too late); so the contention must be that SRS “treats” GID.
III. The meaning of “treat” in section 213(d)(9)(B)
The majority implicitly holds that “prevent or treat” in
1. to lessen in force or intensity, as wrath, grief, harshness, or pain; moderate. 2. to make less severe * * *. 3. to make (a person, one‘s state of mind, disposition, etc.) milder or more gentle; mollify; appease.
A usage note observes that the “central meaning [of ‘mitigate‘] is ‘to lessen’ or ‘make less severe““. Thus, the two words “treat” and “mitigate” are by no means identical.
Consequently, a question directed toward “treatment” of a disease may ask (using language from Webster‘s): Did the procedure “deal with” the disease? Or it may ask (using language from Havey v. Commissioner, 12 T.C. 409, 412 (1949) (emphasis added)): “[D]id the treatment bear directly on the * * * condition in question“? But a question about “mitigation” may ask (using language from Webster‘s): Did the procedure “make [the disease] less severe” or “lessen * * * pain“? And a comment that is framed in terms of “mitigation” may speak of “mitigation of the effects of his injury and disability“. Pols v. Commissioner, T.C. Memo. 1965-222, 24 T.C.M. (CCH) 1140 (1965) (emphasis added). Our Opinion in Starrett v. Commissioner, 41 T.C. 877, 881 (1964), includes such usage of both these terms. In Starrett we held that psychiatric expenses were “clearly ‘amounts paid for the diagnosis, cure, mitigation, treatment,’ and ‘prevention’ of a specific ‘disease‘“; and we upheld the taxpayer‘s argument that he underwent psychoanalysis—
for the diagnosis of his emotional condition, cure of a specific emotional disease classified as anxiety reaction, mitigation of the effects upon him of such disease, treatment of the underlying causes of his anxiety reaction, and thereby the prevention of further suffering therefrom * * *. [Id.; emphasis added.]
B. To yield a deduction, an appearance-improving procedure must treat “disease” (as opposed to treating a patient or a symptom).
If the parties and the majority have in effect defined “treat” so broadly as to nearly encompass “mitigate“, they may have done so by overlooking the fact that, in
As a part of “medical care“, one could “treat” a patient with palliative care or could “treat” his painful symptoms with morphine (both of which could also be said to “mitigate“, and the expenses of which would be deductible under
In defining “cosmetic surgery“, Congress aimed to deny deductions that had previously been allowed. If in the amended statute Congress had allowed deductions for appearance-improving procedures that “prevent, treat, or mitigate” a disease, then that broader exception might have undermined the intended limiting effect of the new disallowance. The majority‘s loose interpretation of
1. The structure of subsection (d)(9)(B) shows deliberate restriction in its terminology.
Congress enacted
2. The stricter interpretation of subsection (d)(9)(B) is consistent with (d)(9)(A).
Because the particular question in this case is whether SRS falls within the definition of cosmetic surgery for which expenses are disallowed in
The majority not only ignores those implications of
On the other hand, if “treat * * * disease” in
3. Broader usage of the word “treat” by doctors does not affect its significance in section 213(d)(9)(B).
It appears that doctors sometimes use the word “treat” in this loose sense, so that they discuss SRS as a “treatment” for GID. See majority op. pt. III.D.1. However, as the majority indicates, majority op. p. 56, the meaning of statutory terms is within the judicial province, and we do not generally accept expert opinion on the meaning of statutory terms. In testimony in this case, doctors manifestly used the terms “care” and “treatment” almost interchangeably, without particular attention to whether it is the patient, the symptoms,
With the foregoing understanding of the purpose and operation of
IV. SRS does not “treat” GID for purposes of section 213(d)(9)(B).
For the GID patient there is a dissonance between, on the one hand, his male body (i.e., his male facial appearance, his male body hair, his male body shape, his male genitalia, his male endocrinology, and the Y chromosomes in the cells of his body) and, on the other hand, his perception of himself as female. The male body conflicts with the female self-perception and produces extreme stress, anxiety, and unhappiness.
One could analyze the GID patient‘s problem in one of two ways: (1) His anatomical maleness is normative, and his perceived femaleness is the problem. Or (2) his perceived femaleness is normative, and his anatomical maleness is the problem. If one assumes option 2, then one could say that SRS does “treat” his GID by bringing his problematic male body into simulated conformity (as much as is possible) with his authentic female mind.
However, the medical consensus as described in the record of this case is in stark opposition to the latter characterization and can be reconciled only with option 1: Petitioner‘s male body was healthy, and his mind was disordered in its female self-perception. GID is in the jurisdiction of the psychiatric profession—the doctors of the mind—and is listed in that profession‘s definitive catalog of “Mental Disorders“. See DSM-IV-TR at 576-582. When a patient presents with a healthy male body and a professed subjective sense of being female, the medical profession does not treat his body as an anomaly, as if it were infected by the disease of an alien maleness. Rather, his male body is taken as a given, and the patient becomes a psychiatric patient because of his dis-
A procedure that changes the patient‘s healthy male body (in fact, that disables his healthy male body) and leaves his mind unchanged (i.e., with the continuing misperception that he is female) has not treated his mental disease. On the contrary, that procedure has given up on the mental disease, has capitulated to the mental disease, has arguably even changed sides and joined forces with the mental disease. In any event, the procedure did not (in the words of Havey v. Commissioner, 12 T.C. at 412) “bear directly on the * * * condition in question“, did not “deal with” the disease (per Webster‘s), did not “treat” the mental disease that the therapist diagnosed. Rather, the procedure changed only petitioner‘s healthy body and undertook to “mitigat[e]” the effects of the mental disease.
Even if SRS is medically indicated for the GID patient—even if SRS is the best that medicine can do for him—it is an otherwise cosmetic procedure that does not “treat” the mental disease. Sex reassignment surgery is therefore within “cosmetic surgery or other similar procedures” under
WELLS, FOLEY, VASQUEZ, and KROUPA, JJ., agree with this concurring in part and dissenting in part opinion.
Docket No. 3607-05.
Filed February 17, 2010.
Notes
I must, however, note the Commissioner‘s alternative argument that “negative myths and ignorance that permeate social thinking in the United States regarding transgendered persons” and the “many laws and legal situations [that] are highly discriminatory for persons with GID” mean that the “suffering experienced by GID patients is primarily inflicted by an intolerant society.” Resp. Br. at 172-73. (At least compared to the “elevated status” of the Berdache in some Native American cultures, the Kathoey in Thailand, the Indian Hijra, and the Fa‘afafine in the South Pacific, as the Commissioner anthropologically concludes. Id. at 175.) It is not effective advocacy to denigrate the people whose government one is representing.
This tension between Congress’ plain language and De Morgan‘s laws was evident in the interpretation of a property forfeiture statute which contained the negation of a conjunction (i.e., “without the knowledge or consent“). SeeUnder normal canons of statutory construction, the court must give effect to Congress’ use of the word “or” by reading the terms “knowledge” and “consent” disjunctively. * * *
* * * If Congress had meant to require a showing of lack of knowledge in all cases, as suggested by the Government, it could have done so by replacing “or” with “and.” * * * [Id.]
To apply De Morgan‘s laws and ignore the plain language of the statute would have been imprudent because, as one commentator accurately opined, “we have no way of telling whether the drafters of the statute intended that De Morgan‘s Rules apply or not“. Solan, The Language of Judges 45, 52 (1993). See generally id. at 45-46, 49-53 (discussing how courts have dealt with statutes containing the negation of “and” and “or“). The majority opinion acknowledges that in the psychiatric community there is a minority view that SRS is unethical and not medically necessary. Majority op. note 47 (citing testimony referring to Paul McHugh, “Surgical Sex“, First Things (November 2004), http://www.firstthings.com/index.php (online edition)); majority op. p. 70; see also Holmes op. pts. I.B and II.B. However, if psychiatry has an intramural dispute about SRS, it will not be arbitrated by persons trained in tax law.
N.b.: The term “disease” is used twice, in two different contexts, and, as the majority notes, majority op. note 54, there is no reference to “medical necessity“. Some research hospitals, Stanford among them, will perform SRS on a referral basis—but the clinical research on SRS at these hospitals has been shut down. Levy, “Two Transsexuals Reflect on University‘s Pioneering Gender Dysphoria Program,” Stanford Rep., May 3, 2000. SeeThe Senate Amendment provides that expenses paid for cosmetic surgery or other similar procedures are not deductible medical expenses, unless the surgery or procedure is necessary to ameliorate a deformity arising from, or directly related to, a congenital abnormality, a personal injury resulting from an accident or trauma, or disfiguring disease. For purposes of this provision, cosmetic surgery is defined as any procedure which is directed at improving the patient‘s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease.
Black‘s Law Dictionary 213 (9th ed. 2009); see Snyder v. Commissioner, 93 T.C. 529, 533-534 (1989). Some cases hold that states cannot categorically exclude sex-change operations from Medicaid coverage. Pinneke v. Preisser, 623 F.2d 546, 549-550 (8th Cir. 1980); J.D. v. Lackner, 145 Cal. Rptr. 570 (Ct. App. 1978); G.B. v. Lackner, 145 Cal. Rptr. 555 (Ct. App. 1978); Doe v. Minn. Dept. of Pub. Welfare, 257 N.W.2d 816 (Minn. 1977). Over time, these decisions have been overtaken by regulation or statute. See, e.g., Smith v. Rasmussen, 249 F.3d 755, 760-61 (8th Cir. 2001) (upholding regulation overturning Pinneke as reasonable). Until recently, Minnesota was the only state in which Medicaid paid for SRS. Price, “Minnesota Using Medicaid Funding to Pay for Sex-Change Operations,” Wash. Times, Feb. 4, 1996, at A4. But four years ago, it joined the rest of the states.A brief, [usually] an appellate brief, that makes use of social and economic studies in addition to legal principles and citations. * * * The brief is named after Supreme Court Justice Louis D. Brandeis, who as an advocate filed the most famous such brief in Muller v. Oregon, 208 U.S. 412 (1908), in which he persuaded the Court to uphold a statute setting a maximum ten-hour workday for women.
For purposes of the medical expense deduction, the IRS generally does not distinguish between procedures which are medically necessary and those which are purely cosmetic.
* * * * * * *
* * * Expenses for purely cosmetic procedures that are not medically necessary are, in essence, voluntary personal expenses, which like other personal expenditures (e.g., food and clothing) generally should not be deductible in computing taxable income.
The Senate Finance Committee report is set out more fully supra note 27. We note that the discussion ofExpenses for purely cosmetic procedures that are not medically necessary are, in essence, voluntary personal expenses, which like other personal expenditures (e.g., food and clothing) generally should not be deductible in computing taxable income.
* * * * * * *
* * * [E]xpenses for procedures that are medically necessary to promote the proper function of the body and only incidentally affect the patient‘s appearance * * * continue to be deductible * * *. [136 Cong. Rec. 30485, 30570 (1990).]