Now read this PDF file, giving the decision. Bottom Line:
Held: P’s gender identity disorder is a “disease” within the meaning of sec. 213(d)(1)(A) and (9)(B), I.R.C.So it's a win. But not without some opposition though:
Held, further, P’s hormone therapy and sex reassignment surgery were “for the * * * treatment* * * of” and “[treated]” disease within the meaning of sec. 213(d)(1)(A) and (9)(B), I.R.C., respectively, and consequently the procedures are not “cosmetic surgery” that is excluded from the definition of “medical care” by sec. 213(d)(9)(A), I.R.C., and instead the amounts paid for the procedures are expenses for “medical care”that are deductible pursuant to sec. 213(a), I.R.C.
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 aThat's about it for the other theories. We're insane, evil, or perverts.
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). 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.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.
-- 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)).
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 not effectively contested by the Commissioner: that the reason a transsexual person seeks SRS is to correct a particular type of birth defect--a mismatch between the person’s body and her gender identity. That mismatch has a name--GID--if not yet any clinically verifiable origin, and SRS (plus hormone therapy) is simply the correct treatment of the disorder.
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.
And to treat us so we don't actually die would be to co-operate with a mental illness (because there HAS to be a "talking cure" according to their ideology, they've only been looking for it for 80 years, after all), or to commit a "crime against humanity" (again, because that's what their ideology says it is), or is justified because sexual deviants are people too. That plays real well with the voting public and legislature.
Notice a certain common thread that binds these three very contradictory views together? All three have been used as reasons to deny us basic human rights in the past - and will no doubt continue to be used in the future.
I guess we're lucky. Because those prejudiced against us can't agree on exactly why we're a Bad Thing(tm). Just that we are. And that rather undercuts their case, and strengthens our contention that the animus against us has no rational basis. I don't think even the Jews have been accused by Anti-Semites of being Evil, Psychotic, and Deviant.
It's been 8 years since Ms O’Donnabhain put in her 2001 Tax Return. It's taken 8 years, and untold expense, to claim the huge sum of.... $5,679. Actually less, the amount for breast augmentation was disallowed as having its necessity insufficiently evidenced in this particular case. So her refund will be less than $5,000.
Other TS people will now be rushing to file amended returns. Too bad the cut-off date is 3 years, so if they had treatment before 2007, they're out of luck.
For the rest - Many Happy Returns.