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Faith And The IRS Policy On Deducting Sex Reassignment Surgery

Rhiannon G. O’Donnabhain V. Commissioner Of Internal Revenue case is back in the news. The Associated Press is reporting:

[A] 57-year-old suburban Boston man underwent a sex-change operation. Then she wrote off the $25,000 in medical expenses on her taxes.

But the IRS disallowed the deduction – ruling the procedure was cosmetic, not a medical necessity – in a potentially precedent-setting dispute now before the U.S. Tax Court.

Rhiannon O’Donnabhain is suing the IRS in a case advocates for the transgendered are hoping will force the tax agency to treat sex-change operations the same as appendectomies, heart bypasses and other deductible medical procedures. The case is set to go to trial July 24.

“The IRS ruling is pure bias, since scientists agree that gender transition services are medically necessary and not cosmetic,” said Joel Ginsberg, executive director of the Gay and Lesbian Medical Association.

In 1996, O’Donnabhain began seeing a psychotherapist who eventually diagnosed her with gender-identity disorder. Five years later, her therapist recommended sex-change surgery, finding it was a medically necessary. A psychologist who examined O’Donnabhain concurred.

O’Donnabhain claimed the expenses on her 2001 tax return. The IRS denied the deduction in 2003.

Kenneth Vacovec, a tax attorney from Newton, said O’Donnabhain could have a strong case because of the psychological component of gender identity disorder.

“If you were going to a psychiatrist and you had a bipolar condition, and you were taking medication and getting treatment and it made you function better in society, how is that different from having a sex-change operation that allows you to function better and be more comfortable in society?” Vacovec said.

Back in December of 2004, GLAD issued a press release indicating Rhiannon O’Donnabhain won a significant ruling on sex reassignment surgery. IRS Appeals Officer/Commissioner Mark Everson determined that Ms. O’Donnabhain’s surgery was medically necessary and an integral part of a professionally prescribed course of treatment for her diagnosed condition, and she could deduct for the surgery as a necessary operation.

The traditional values folk went ballistic.

(More on the history of this lawsuit after the flip)The Traditional Values Coalition wrote of that IRS Appeals Officer’s decision:

The homo/trans movement is currently guided by a belief that concepts such as male and female are simply cultural inventions that can be altered at will by the individual. In 1993, a transgender legal group issued the “International Gender Bill of Rights,” that declares: “It is fundamental that individuals have the right to define, and to redefine as their lives unfold, their own gender identity, without regard to chromosome sex, genitalia, assigned birth sex, or initial gender role.” This is a sure recipe for sexual confusion and life-long despair.

By giving tax deductions for unneeded “sex change” operations, the IRS is aiding in the homo-trans effort to undermine the biological realities of male and female. The simple fact is that no one can change sexes. A male who has his sex organs removed and takes hormones for breast enhancement is still genetically a male — not a woman. This is an unchangeable reality. A man can no more become a woman than he can become a Dodge Minivan. A person who thinks otherwise is delusional — and needs professional care.

An individual who suffers from Gender Dysphoria has a serious mental problem?and this cannot be fixed by hormone injections and the mutilation of a person?s body. He needs long-term, intensive therapy, not mutilation.

The IRS is collaborating with madness by giving tax deductions for unneeded “sex change” operations. The IRS policy should be reversed immediately.

American Daily, Townhall, and the Free Republic weighed in too.

The conservative Christian outcry apparently stirred some members of congress to get involved. The Washington Times published in a February 2005 article:

No fewer than two dozen congressmen are giving Internal Revenue Service Commissioner Mark Everson until the close of business Feb. 28 to explain why the IRS granted a tax deduction for a sex change operation.

“[A]s members of the United States House of Representatives, we view this as an outrage and believe it sets a precedent that both the IRS and the American taxpayer at large will not be comfortable with,” the congressmen wrote to the IRS chief.

The IRS Commissioner’s late 2004 decision was officially reversed in October of 2005, and the reversal was published in January of 2006.

Berkeley tax law attorney Donald H. Read, writing for the San Francisco Chronicle, wrote the following of that IRS reversal:

Under the Internal Revenue Code, medical expenses are deductible if incurred for the “diagnosis, cure, mitigation, treatment or prevention of disease, or for the purpose of affecting any structure or function of the body.” Under the Treasury Department’s own regulations, they must be incurred “primarily for the prevention or alleviation of a physical or mental defect or illness.” However, the code prohibits deducting the costs of cosmetic surgery, which it defines 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.”

Despite reviewing the patient’s long and comprehensive psychological and medical process of addressing his gender identity disorder and deciding on surgery, the IRS concluded that there “is nothing to substantiate that these expenses were incurred to promote the proper function of the taxpayer’s body and only incidentally affect the taxpayer’s appearance.”

The IRS treated gender reassignment surgery as similar to voluntary cosmetic surgery, the purpose of which is to affect appearance rather than to change the function of part of the body. Left unexplained is how removal of the testicles and penis and their replacement with a vagina is more appearance — than function — related.

Almost gratuitously, the IRS went on to question whether this surgery really is a treatment for an illness or disease. For this proposition it cites an article, not from the New England Journal of Medicine, Lancet, or any similarly respected medical publication, but rather from a magazine called First Things.

First Things is published by the Institute on Religion and Public Life, which describes itself as “an interreligious, nonpartisan research and education institute whose purpose is to advance a religiously informed public philosophy for the ordering of society.”

The First Things article was written by John Hopkins’ Psychiatrist-in-Chief Paul McHugh. Per Lynn Conway:

Paul McHugh is an influential conservative Catholic ideologue who for some odd reason has been on a lifelong rampage to “stop sex changes.” This transphobic psychiatrist (then advisor to the Vatican on sexual matters) convinced the Vatican in 2000 to declare that transsexualism “doesn’t exist” and is a mental pathology instead. McHugh is now positioned to similarly influence the Executive Branch, as a member of the President’s Council for Bioethics.

RightWeb describes the First Things publisher this way:

The Institute on Religion and Public Life (IRPL), publisher of the journal First Things, describes itself as an “interreligious, nonpartisan research and education institute whose purpose is to advance a religiously informed public policy for the ordering of society.” Both the institute and its journal function, in large part, as the institutional vehicles for the conservative religious philosophy of founder Richard John Neuhaus, a Catholic priest and neocon — or “theocon” — stalwart.

First Things, a monthly publication, generally promotes the tenets of the Christian Right, often staking out positions to the right of the George W. Bush administration. First Things editor Joseph Bottum wrote in early 2007: “Social conservatism is in little better shape now than it was when Bush was first elected. In many ways, it is in worse shape” (First Things, March 2007).

Again, the First Things article by Paul McHugh is what the IRS used to make its decision on whether or not sex reassignment surgery should be tax deductible, not what most experts on Gender Identity Disorder (GID) believe. Which, by the way, is:

Sex Reassignment is Effective and Medically Indicated in Severe GID. In persons diagnosed with transsexualism or profound GID, sex reassignment surgery, along with hormone therapy and real-life experience, is a treatment that has proven to be effective. Such a therapeutic regimen, when prescribed or recommended by qualified practitioners, is medically indicated and medically necessary. Sex reassignment is not “experimental,” “investigational,” “elective,” “cosmetic,” or optional in any meaningful sense. It constitutes very effective and appropriate treatment for transsexualism or profound GID.

When it comes to sex reassignment surgery — or even equal marriage — federal legislators and this presidential administration’s government bureaucrats have seemed, as entities, dead set against equitable tax policies for LGBT people. To me, they seem to be more interested in establishing of government in tune with Christian Dominionism.

When all said and done, transpeople are definitely following the Rhiannon G. O’Donnabhain V. Commissioner Of Internal Revenue lawsuit to see how this lawsuit finally resolves.  Is the tax court going to come down on the side of what the majority of the medical experts believe, or is the tax court going to decide based on opinions published in conservative Christian publications and/or websites, and perhaps the opinions of 28 conservative congresspeople?

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