GLAD Wins Case vs. IRS on Sex Reassignment Deductions

Submitted by lajefe on Wed, 02/03/2010 - 17:51

134 T.C. No. 4

UNITED STATES TAX COURT

RHIANNON G. O’DONNABHAIN, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 6402-06. Filed February 2, 2010.

In 1997, P, born a genetic male, was diagnosed

with gender identity disorder, a condition recognized

in medical reference texts, in which an individual

experiences persistent psychological discomfort

concerning his or her anatomical gender. Medical

professionals who treat gender identity disorder

prescribe for its treatment in genetic males, depending

on the severity of the condition, (i) administration of

feminizing hormones; (ii) living as a female in public;

and (iii) after at least a year of living as a female,

surgical modification of the genitals and, in some

circumstances, breasts to resemble those of a female

(sex reassignment surgery). Pursuant to this treatment

regimen, P was prescribed feminizing hormones in 1997

and continued to take them through 2001. In 2000,

after plastic surgery to feminize facial features, P

began presenting full time in public as a female. In

2001 P underwent sex reassignment surgery, including

breast augmentation surgery. P claimed a medical

expense deduction under sec. 213, I.R.C., for the cost

of the surgeries, transportation and other related

expenses, and feminizing hormones, for the taxable year

2001. R disallowed the deduction.

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Petitioner concedes that she is not entitled to any

(continued...)

Held: P’s gender identity disorder is a “disease”

within the meaning of sec. 213(d)(1)(A) and (9)(B),

I.R.C.

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.

Held, further, P’s breast augmentation surgery was

“directed at improving * * * [her] appearance” and she has

not shown that the surgery either “meaningfully [promoted]

the proper function of the body” or “[treated] * * *

disease” within the meaning of sec. 213(d)(9)(B), I.R.C.

Accordingly, the breast augmentation surgery is “cosmetic

surgery” within the meaning of sec. 213(d)(9)(B), I.R.C.,

that is excluded from the definition of deductible “medical

care” by sec. 213(d)(9)(A), I.R.C.

Karen L. Loewy, Bennett H. Klein, Jennifer L. Levi, William

E. Halmkin, David J. Nagle, and Amy E. Sheridan, for petitioner.

Mary P. Hamilton, John R. Mikalchus, Erika B. Cormier, and

Molly H. Donohue, for respondent.

GALE, Judge: Respondent determined a deficiency of $5,679

in petitioner’s Federal income tax for 2001. After concessions,

Unless otherwise indicated, all section references are to1

the issue for decision is whether petitioner may deduct as a

medical care expense under section 213

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2 amounts paid in 2001 for

the Internal Revenue Code of 1986, as amended and in effect in

the year in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

(...continued)

pronoun to refer to her throughout this Opinion.

hormone therapy, sex reassignment surgery, and breast

augmentation surgery that petitioner contends were incurred in

connection with a condition known as gender identity disorder.

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, she

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.

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Reflecting petitioner’s preference, we use the feminine3 was

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.

Petitioner and her spouse were divorced in 1996.4

II. Petitioner’s Psychotherapy and Diagnosis

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

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out other causes--so-called comorbid conditions--of petitioner’s

symptoms, including psychosis, an earlier diagnosis of attention

deficit/hyperactivity disorder, depression, and transvestic

fetishism.

Transvestic fetishism “occurs in heterosexual (or bisexual)

men for whom the cross-dressing behavior is for the purpose of

sexual excitement. Aside from cross-dressing, most individuals

with Transvestic Fetishism do not have a history of childhood

cross-gender behaviors.” DSM-IV-TR at 580. Petitioner reported

to Ms. Ellaborn that she cross-dressed in order to feel more

feminine rather than for purposes of sexual arousal.

In reaching her diagnosis Ms. Ellaborn considered and ruled

symptoms than those required to make the diagnosis, or several

symptoms that are particularly severe are present, or the

(continued...)

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-IVTR),

published by the American Psychiatric Association. The DSMIV-

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.

classification system of the DSM-IV-TR, a severity modifier--

mild, moderate, or severe--may be added to any diagnosis.

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A modifier of “severe” indicates that there are many more5 See DSM-IV-TR at 581. Under the6 The

symptoms result in marked impairment in social and occupational

functioning beyond the minimum threshold required for diagnosis.

See DSM-IV-TR at 2.

(...continued)

first appeared in the third edition of the DSM published in 1980

(DSM-III). The fourth edition of the DSM, published in 1994

(DSM-IV), replaced the transsexualism diagnosis with GID and

added the criterion for the diagnosis that the patient exhibit

clinically significant distress or impairment in important areas

of functioning. The DSM-IV underwent a text revision in 2000,

resulting in the DSM-IV-TR, but there are no material differences

in the DSM’s treatment of GID as between the DSM-IV and DSM-IV-TR

editions.

Notwithstanding the replacement of the transsexualism

diagnosis with GID, the terms “transsexualism” and “transsexual”

are still used generally in psychiatry to refer to severe or

profound GID or a sufferer thereof.

term “transsexualism” is currently used in the DSM-IV-TR to

describe GID symptoms that are severe or profound.

The GID diagnosis was labeled “transsexualism” when it7

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. * * *

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who in conjunction with mental health professionals in New York

did pioneering work in the study of transsexualism. The parties

have stipulated that the term “gender dysphoria” was coined by

Dr. Norman Fisk (Dr. Fisk) in 1973 to describe patients

presenting with dissatisfaction and unhappiness with their

anatomic and genetic sex and their assigned gender. The parties

have further stipulated that, according to a 1974 article by Dr.

Fisk, transsexualism represents the most extreme form of gender

dysphoria.

Harry Benjamin, M.D. (1885-1986), was an endocrinologist

hormones in genetic males with GID also has a

psychological effect, producing a sense of well-being and a

“calming effect”.

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.

of Care” for the treatment of GID (hereinafter Benjamin standards

of care or Benjamin standards). The Benjamin standards of care

were originally approved in 1979 and have undergone six revisions

through February 2001.

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;

Both parties’ experts agree that administration of crossgender8 WPATH publishes “Standards9

(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

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reassignment, a psychotherapist must have (1) a master’s degree

in clinical behavioral science, and at least one of the

recommenders for surgical sex reassignment must have a doctoral

degree in the field; (2) competence in psychotherapy as

demonstrated by a State license to practice it; and (3)

specialized competence in sex therapy and gender identity

disorders as demonstrated by supervised clinical experience and

continuing education.

genital sex reassignment and/or nongenital 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.

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.” The Benjamin

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To be qualified to recommend hormonal or surgical sex10 The

throughout most of 1997.

Petitioner attended monthly individual therapy sessions

changing her appearance too quickly. She was concerned about the

impact on her children and coworkers. Petitioner’s 16-year-old

son was living with her at the time, and petitioner wished to

postpone significant changes in her appearance until after her

son had graduated from high school and begun college.

Petitioner was hesitant about starting hormones and

remove body hair in September 1997 and continued them through

(continued...)

standards further state that “Genital sex reassignment shall be

preceded by a period of at least 12 months during which time the

patient lives full-time in the social role of the genetically

other sex.” The standards provide that breast augmentation

surgery may be performed as part of sex reassignment surgery for

a male-to-female patient “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.”

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.

Petitioner also commenced electrolysis treatments to11

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.

feminizing hormones continuously through the taxable year in

issue (2001).

12 She remained on13

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2005. The deductibility of the expenses related to electrolysis

is not at issue.

(...continued)

embarrassment, anger, denial, and withdrawal.

The children’s reactions were characterized by

Ellaborn explaining the GID diagnosis, to be used in the event

she was confronted by authorities for using a sex-segregated

facility such as a restroom or a changing room.

Petitioner also carried with her a letter from Ms.

of hormone therapy, petitioner had distinctly male facial

features which interfered with her “passing” as female. Ms.

Ellaborn referred petitioner to a plastic surgeon who in March

2000 performed procedures designed to feminize petitioner’s

facial features, including a rhinoplasty (nose reshaping), a

(continued...)

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.

Ms. Ellaborn had observed that, notwithstanding 18 months14

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

2000. Petitioner legally changed her name from Robert Donovan to

Rhiannon G. O’Donnabhain and arranged to have the gender

designation on her driver’s license changed, on the basis of her

GID diagnosis.

features,

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15 She underwent surgery to feminize her facial16 and with the cooperation of her employer commenced

facelift, and a tracheal shave (reducing cartilage of the “Adam’s

apple”). Petitioner was dissatisfied with the initial results,

and in December 2000 the surgeon performed further surgery to

revise the effects of the earlier procedures. The surgeon also

gave petitioner a Botox treatment at that time. The

deductibility of the foregoing procedures is not at issue.

(...continued)

to cut off her penis.

presenting as a female at work around April of that year.

Petitioner informed Ms. Ellaborn that her transition at work went

smoothly and that the “real-life” experience had been “incredibly

easy”. Ms. Ellaborn viewed petitioner’s positive response to her

“real-life” experience as further validation of the GID

diagnosis.

C. Petitioner’s Sex Reassignment Surgery

Petitioner’s anxiety as a result of having male genitalia

persisted,

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.

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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 Benjamin

standards’ criteria for sex reassignment surgery, and formally

recommending petitioner for the surgery. Another licensed

psychotherapist with a doctoral degree in clinical psychology,

Dr. Alex Coleman (Dr. Coleman), examined petitioner and provided

a second recommendation for her sex reassignment surgery, as

required by the Benjamin standards. Dr. Coleman’s letter to Dr.

Meltzer observed that petitioner “appears to have significant

breast development secondary to hormone therapy”.

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

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In one instance, petitioner held a knife and had an urge17 however, and Ms. Ellaborn concluded that her

and 2005 is not at issue.

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.

The deductibility of these procedures undertaken in 200218

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

surgery: (1) $19,195 to Dr. Meltzer for surgical procedures,

including $14,495 for vaginoplasty and other procedures, $4,500

for breast augmentation, and $200 towards a portion of

petitioner’s postsurgical stay at Dr. Meltzer’s facility; (2) $60

for medical equipment; (3) $1,544 in travel and lodging costs

away from home for presurgical consultation and surgery; (4) $300

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to Ms. Ellaborn for therapy; (5) $260 for the consultation for a

second referral letter for surgery; and (6) $382 for hormone

therapy. These payments were not compensated for by insurance or

otherwise.

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

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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 tests that

may be used to diagnose GID but notes the same is true of

virtually all of the mental disorders listed in the DSM-IV-TR.

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 sexsegregated

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

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Oxford Textbook of Psychiatry 915 (Gelder, et al., eds., Oxford

Univ. Press 2000); Green & Blanchard, “Gender Identity

Disorders,” in Kaplan & Sadock’s Comprehensive Textbook of

Psychiatry 1660 (Sadock & Sadock, eds., 7th ed., Lippincott

Williams & Wilkins 2000); Levine, “Sexual Disorders”, in

Psychiatry 1492 (Tasman, et al., eds., 2d ed., John Wiley & Sons

2005).

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 surgery. He

cites widely used psychiatric reference texts that reach the same

conclusion.

See Green, “Gender Identity Disorder in Adults”, in New19

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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

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is a mental disorder in the light of the heterogeneity of GID

patients (in terms of presentation, personality, and motivation)

and the lack of a scientifically supported etiology of the

condition.

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.

report, Dr. Schmidt provided a diagnosis of GID as an expert in a

U.S. District Court proceeding and continued to make the

diagnosis regularly through the time of trial, as do other

practitioners at the Johns Hopkins sexual disorders clinic he

cofounded. Further, Dr. Schmidt states that the GID diagnosis is

taught to psychiatrists in training at his and other medical

schools and is a condition with which they must be familiar.

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.

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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 surgery because, Dr.

Schmidt believes, there is insufficient scientific evidence of

the procedures’ efficacy in treating GID. A therapist should

accordingly only take a position when there are contraindications

to the procedures, in his opinion.

- 20 -

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

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Dr. Schmidt’s report states that he is uncertain that GID20 However, 10 months before submitting his expert

recognized presence of disease, usually as a result of the host

experiencing signs or symptoms, but sometimes as a result of an

incidental finding by a clinician or the observations of a third

party.”

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.

commentators on the subject have advanced at least three possible

“sufficient conditions” for the presence of disease (namely,

discomfort, dysfunction, or pathology), Dr. Dietz considers

pathology the appropriate sufficient condition. Thus, in Dr.

Dietz’ opinion, disease is defined as follows:

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

- 22 -

Dr. Dietz believes that “illness” is simply “the21 While acknowledging that

characterized by binge eating following by inappropriate

compensatory behaviors to avoid weight gain, such as induced

vomiting.

As confirmed by Dr. Dietz, bulimia is a mental disorder

in which an individual refuses to maintain a minimally normal

body weight, is phobic regarding weight gain, and exhibits a

disturbance in perception of the shape or size of his or her

body.

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 bulimia

psychologically unhealthy but not a disease under his formulation

because it has no demonstrated organic etiology. Dr. Dietz was

unable to say whether anorexia

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.

- 23 -

As confirmed by Dr. Dietz, anorexia is a mental disorder22 is23 is a disease under his

drug are treated as amounts paid for medical care. The parties

have stipulated that the feminizing hormones petitioner purchased

in 2001 were a prescribed drug within the meaning of sec. 213(b)

and (d)(3), but respondent does not stipulate that the hormones

were for the treatment of an illness or disease within the

meaning of sec. 213.

Sec. 213(b) provides that amounts paid for a prescribed

petitioner’s sex reassignment surgery is determined by the Court

to be deductible under sec. 213, then petitioner’s travel and

lodging costs incurred in connection with her consultation and

surgery by Dr. Meltzer are also deductible.

Dr. Dietz agrees that GID is sometimes associated with

autopenectomy, autocastration, and suicide.

OPINION

I. Medical Expense Deductions Under Section 213

A. In General

Section 213(a) allows a deduction for expenses paid during

the taxable year for medical care that are not compensated for by

insurance or otherwise and to the extent that such expenses

exceed 7.5 percent of adjusted gross income.

section 213(d)(1)(B) and (2) provides that certain amounts paid

for transportation and lodging, respectively, may qualify as

amounts paid for medical care under section 213(a) if a

taxpayer’s travel away from home is primarily for and essential

to receiving medical care.

The parties have stipulated that if any part of24 In addition,25

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:

- 24 -

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 section 213(d)(1)(A), which provides as

follows:

- 25 -

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 statute as

synonymous with “a physical or mental defect or illness.” The

- 26 -

language equating “mental defect” with “disease” was in the first

version of the regulations promulgated in 1943 and has stood

unchanged since. See T.D. 5234, 1943 C.B. 119, 130. In

addition, to qualify as “medical care” under the regulations, an

expense must be incurred “primarily” for alleviation of a

physical or mental defect, and the defect must be specific.

“[A]n expenditure which is merely beneficial to the general

health of an individual, such as an expenditure for a vacation,

is not an expenditure for medical care.” Sec. 1.213-1(e)(1)(ii),

Income Tax Regs.

Given the reference to “mental defect” in the legislative

history and the regulations, it has also long been settled that

“disease” as used in section 213 can extend to mental disorders.

See, e.g., Fischer v. Commissioner, 50 T.C. 164, 173 n.4 (1968)

(“That mental disorders can be ‘disease’ within the meaning of

[section 213(d)(1)(A)] is no longer open to question.”); Starrett

v. Commissioner, 41 T.C. 877 (1964); Hendrick v. Commissioner, 35

T.C. 1223 (1961).

In Jacobs v. Commissioner, 62 T.C. 813 (1974), this Court

reviewed the legislative history of section 213 and synthesized

the caselaw to arrive at a framework for analysis of disputes

concerning medical expense deductions. Noting that the medical

expense deduction essentially carves a limited exception out of

the general rule of section 262 that “personal, living, or family

expenses” are not deductible, the Court observed that a taxpayer

seeking a deduction under section 213 must show: (1) “the

- 27 -

Commissioner, 62 T.C. 813 (1974), concluded that the expenses of

the taxpayer’s divorce, even though the divorce was recommended

by the taxpayer’s psychiatrist and was beneficial to the

taxpayer’s mental health, were not deductible medical expenses

because the divorce would have been undertaken even absent the

taxpayer’s depression.

present existence or imminent probability of a disease, defect or

illness--mental or physical” and (2) a payment “for goods or

services directly or proximately related to the diagnosis, cure,

mitigation, treatment, or prevention of the disease or illness.”

Id. at 818. Moreover, where the expenditures are arguably not

“wholly medical in nature” and may serve a personal as well as

medical purpose, they must also pass a “but for” test: the

taxpayer must “prove both that the expenditures were an essential

element of the treatment and that they would not have otherwise

been incurred for nonmedical reasons.” Id. at 819.

Applying the foregoing principles, the Court in Jacobs v.26

C. Definition of Cosmetic Surgery

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 section

213(d)(1)(A). See Rev. Rul. 82-111, 1982-1 C.B. 48 (hair

transplants and hair removal); Rev. Rul. 76-332, 1976-2 C.B. 81

- 28 -

Representatives did not include a provision addressing cosmetic

surgery; this provision originated in the Senate. The report of

the Senate Finance Committee, which was informally printed in the

Congressional Record, contrasted “cosmetic” procedures with

“medically necessary procedures” as follows:

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

(continued...)

(facelifts); see also Mattes v. Commissioner, 77 T.C. 650 (1981)

(hair transplants to treat premature baldness deductible under

section 213).

In 1990 Congress responded to these rulings by amending

section 213 to include new subsection (d)(9) which, generally

speaking, excludes cosmetic surgery from the definition of

deductible medical care. See Omnibus Budget Reconciliation Act

of 1990, Pub. L. 101-508, sec. 11342(a), 104 Stat. 1388-471. A

review of the legislative history of section 213(d)(9) shows that

Congress deemed the amendment necessary to clarify that

deductions for medical care do not include amounts paid for “an

elective, purely cosmetic treatment”. H. Conf. Rept. 101-964, at

1031 (1990), 1991-2 C.B. 560, 562; see also 136 Cong. Rec. 30485,

30570 (1990) (Senate Finance Committee report language on Omnibus

Budget Reconciliation Act of 1990).

The bill as initially passed in the House of27

- 29 -

deductible in computing taxable income.

* * * * * * *

* * * [U]nder 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 * * *.

Section 213(d)(9) defines “cosmetic surgery” as follows:

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, section 213(d)(9)(A) provides the general rule that the

term “medical care” does not include “cosmetic surgery” (as

- 30 -

(...continued)

185, construed sec. 213(d)(9) but was decided under sec. 7463 and

may not be treated as precedent. See sec. 7463(b).

Al-Murshidi v. Commissioner, T.C. Summary Opinion 2001-

a “similar procedure” within the meaning of sec. 213(d)(9)(A).

defined) unless the surgery is necessary to ameliorate

deformities of various origins. Section 213(d)(9)(B) then

defines “cosmetic surgery” as any procedure that is directed at

improving the patient’s appearance but excludes from the

definition any procedure that “meaningfully [promotes] the proper

function of the body” or “[prevents] or [treats] illness or

disease”. There appear to be no cases of precedential value

interpreting the cosmetic surgery exclusion of section

213(d)(9).

Respondent contends that petitioner’s hormone therapy was28

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”

under section 213(d)(9) because they were directed at improving

petitioner’s appearance and did not treat an illness or disease,

meaningfully promote the proper function of the body, or

ameliorate a deformity. Although respondent concedes that GID is

a mental disorder, respondent contends, relying on the expert

testimony of Dr. Dietz, that GID is not a disease for purposes of

section 213 because it does not arise from an organic pathology

within the human body that reflects “abnormal structure or

function of the body at the gross, microscopic, molecular,

- 31 -

procedures at issue are deductible because they affected a

structure or function of the body (within the meaning of sec.

213(d)(1)(A)) and were not “cosmetic surgery” under sec.

(continued...)

biochemical, or neurochemical levels.” Respondent further

contends that the procedures at issue did not treat disease

because there is no scientific proof of their efficacy in

treating GID and that the procedures were cosmetic surgery

because they were not medically necessary. Finally, respondent

contends that petitioner did not have GID, that it was

incorrectly diagnosed, and that therefore the procedures at issue

did not treat a disease.

Petitioner maintains that she is entitled to deduct the cost

of the procedures at issue on the grounds that GID is a wellrecognized

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. Morever, petitioner contends, because the

procedures at issue treated a “disease” as used in section 213,

they are not “cosmetic surgery” as defined in that section.

Petitioner also argues that the expenditures for the30

- 32 -

213(d)(9) because they were not “directed at improving the

patient’s appearance” and because they “meaningfully [promoted]

the proper function of the body” (within the meaning of sec.

213(d)(9)(B)). Given our conclusion, discussed hereinafter, that

the expenditures for petitioner’s hormone therapy and sex

reassignment surgery are deductible because they “[treated] * * *

disease” within the meaning of sec. 213(d)(1)(A) and (9)(B), we

need not resolve the foregoing issues with respect to those

expenditures. We consider petitioner’s arguments with respect to

the breast augmentation surgery more fully infra.

(...continued)

therapy is a “similar procedure” within the meaning of the sec.

213(d)(9)(A) exclusion from “medical care” of “cosmetic surgery

or other similar procedures”. Respondent does not contend,

(continued...)

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.

A. Statutory Definitions

Determining whether sex reassignment procedures are

deductible “medical care” or nondeductible “cosmetic surgery”

starts with the meaning of “treatment” and “disease” as used in

section 213. Both the statutory definition of “medical care” and

the statute’s exclusion of “cosmetic surgery” from that

definition depend in part upon whether an expenditure or

procedure is for “treatment” of “disease”. Under section

213(d)(1)(A), if an expenditure is “for the * * * treatment * * *

of disease”, it is deductible “medical care”; under section

213(d)(9)(B), if a procedure “[treats] * * * disease”, it is not

“cosmetic surgery” that is excluded from the definition of

“medical care”.

As noted, respondent contends that petitioner’s hormone31

- 33 -

however, that the hormone therapy’s status as a “similar

procedure” within the meaning of sec. 213(d)(9)(A) ipso facto

causes the therapy to be excluded from “medical care”. Instead,

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”.

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 section 213,

whether for purposes of showing that an expenditure is for

“medical care” under section 213(d)(1)(A) or that a procedure is

not “cosmetic surgery” under section 213(d)(9)(B). A showing

that a procedure constitutes “treatment” of a “disease” both

precludes “cosmetic surgery” classification under section

- 34 -

(...continued)

undertake hormone therapy or sex reassignment surgery to

ameliorate a deformity arising from, or directly related to a

personal injury arising from an accident or trauma, or a

disfiguring disease. Petitioner has neither argued nor adduced

evidence that the foregoing procedures ameliorated a deformity

arising from, or directly related to, a congenital abnormality.

See sec. 213(d)(9)(A). We consider petitioner’s arguments

concerning the breast augmentation surgery more fully infra.

213(d)(9) and qualifies the procedure as “medical care” under

section 213(d)(1)(A).

The parties have stipulated that petitioner did not32

Congress’s reuse of the terms “treat” and “disease” in

defining “cosmetic surgery” in section 213(d)(9)(B) triggers a

second principle of statutory construction. Given that the

phrase “treatment * * * of disease” as used in the section

213(d)(1)(A) definition of “medical care” had been the subject of

considerable judicial and administrative construction when

Congress incorporated the phrase into the definition of “cosmetic

surgery” in 1990, it “had acquired a settled judicial and

administrative interpretation”. Commissioner v. Keystone Consol.

Indus., Inc., supra at 159. In these circumstances “it is proper

to accept the already settled meaning of the phrase”. Id.

Therefore, the pre-1990 caselaw and regulations construing

“treatment” and “disease” for purposes of the section

213(d)(1)(A) definition of “medical care” are applicable to the

interpretation of those words as used in the section 213(d)(9)(B)

definition of “cosmetic surgery”.

- 35 -

of deciding this case, that no organic or biological cause of GID

has been demonstrated.

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 section 213. Respondent maintains that

petitioner’s expenditures did not treat “disease” because GID is

not a “disease” within the meaning of section 213. Central to

his argument is respondent’s contention that “disease” as used in

section 213 has the meaning postulated by respondent’s expert,

Dr. Dietz; namely, “a condition * * * [arising] as a result of a

pathological process * * * [occurring] within the individual and

[reflecting] abnormal structure or function of the body at the

gross, microscopic, molecular, biochemical, or neuro-chemical

levels.”

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 section 213; namely, that a “disease” for

this purpose must have a demonstrated organic or physiological

origin in the individual. Consequently, GID is not a “disease”

because it has “no known organic pathology”, respondent argues.

The experts all agree and the Court accepts, for purposes33

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,

- 36 -

presents specialized medical knowledge concerning the nature of

GID. These facts bear upon whether GID should be considered to

qualify as a “disease”, as the Court interprets that term.

In contrast, the testimony of the other two experts

and useful regarding other matters, such as the state of

knowledge concerning organic origins of mental conditions, and

the Court relies on the testimony for certain other purposes, as

discussed infra.

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.

used in section 213 must be resolved by the Court, using settled

principles of statutory construction, including reference to the

Commissioner’s interpretive regulations, the legislative history,

and caselaw precedent.

Dr. Dietz’ testimony as a forensic psychiatrist is proper34 The meaning of “disease” as35

- 37 -

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 section 213 without

regard to any demonstrated organic or physiological origin or

cause. See Fay v. Commissioner, 76 T.C. 408 (1981); Jacobs v.

Commissioner, 62 T.C. at 818; Fischer v. Commissioner, 50 T.C.

164 (1968); Starrett v. Commissioner, 41 T.C. 877 (1964);

Hendrick v. Commissioner, 35 T.C. 1223 (1961); Sims v.

Commissioner, T.C. Memo. 1979-499. These cases found mental

conditions to be “diseases” where there was evidence that mental

health professionals regarded the condition as creating a

significant impairment to normal functioning and warranting

treatment. This Court’s discussion in Fay v. Commissioner, supra

at 414-415, is representative:

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

- 38 -

development program, a special program at the taxpayer’s

children’s school for children with learning disabilities. Fay

v. Commissioner, 76 T.C. 408, 410 (1981).

psychiatrist, and the staff of the DLD program

The DLD program refers to the department of language[36]

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 section 213); Hendrick v. Commissioner,

supra at 1236 (“emotional insecurity” of child is a “disease” for

purposes of section 213); Sims v. Commissioner, supra (“disease”

- 39 -

for purposes of section 213 found although “record does not

contain a precise characterization of * * * [the taxpayer’s

son’s] condition in medical terminology, there is ample evidence

to support a finding that he suffered from some sort of learning

disability, accompanied by emotional or psychiatric problems”).

We have also considered a condition’s listing in a diagnostic

reference text as grounds for treating the condition as a

“disease”, without inquiry into the condition’s etiology. In

Starrett v. Commissioner, supra at 878 & n.1, 880-882, a reviewed

opinion, we treated “anxiety reaction” as a “disease” for

purposes of section 213, pointing to the condition’s recognition

in the American Medical Association’s Standard Nomenclature of

Diseases and Operations (5th ed. 1961).

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 section 213 to conditions with

demonstrated organic origins when it enacted the provision in

1942, because physiological origins for mental disorders were not

widely recognized at the time. As Dr. Dietz confirmed in his

testimony, the physiological origins of various well-recognized

- 40 -

mental disorders--for example, panic disorder and obsessivecompulsive

disorder--were discovered only about a decade ago.

Moreover, Dr. Dietz confirmed that bulimia would not constitute a

“disease” under his definition, because bulimia has no

demonstrated organic origin, nor would post-traumatic stress

disorder. Dr. Dietz was unable to say whether anorexia would

meet the definition because he was uncertain regarding the

current state of scientific knowledge of its origins.

Petitioner’s expert, Dr. Brown, testified without challenge that

most mental disorders listed in the DSM-IV-TR do not have

demonstrated organic causes. Thus, under the definition of

“disease” respondent advances, many well-recognized mental

disorders, perhaps most, would be excluded from coverage under

section 213–-a result clearly at odds with the intent of Congress

(and the regulations) to provide deductions for the expenses of

alleviating “mental defects” generally.

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 section 213 requires a demonstrated organic origin, we

are left with the question whether the term should be interpreted

to encompass GID. On this score, respondent, while conceding

- 41 -

a diagnostic category therein “does not imply that the condition

(continued...)

that GID is a mental disorder, argues that GID is ”not a

significant psychiatric disorder” but instead is a “social

construction”--a “social phenomenon” that has been “medicalized”.

Petitioner argues that GID is a “disease” for purposes of section

213 because it is well recognized in mainstream psychiatric

literature, including the DSM-IV-TR, as a legitimate mental

disorder that “causes serious, clinically significant distress

and impairment of functioning”.

For the reasons already noted and those discussed below, we

conclude that GID is a “disease” within the meaning of section

213. We start with the two caselaw factors influencing a finding

of “disease” in the context of mental conditions: (1) A

determination by a mental health professional that the condition

created a significant impairment to normal functioning,

warranting treatment, see Fay v. Commissioner, 76 T.C. 408

(1981); Jacobs v. Commissioner, 62 T.C. 813 (1974); Fischer v.

Commissioner, 50 T.C. 164 (1968); Hendrick v. Commissioner, 35

T.C. 1223 (1961), or (2) a listing of the condition in a medical

reference text, see Starrett v. Commissioner, 41 T.C. 877 (1964).

Both factors involve deference by a court to the judgment of

medical professionals.

As noted in our findings, GID is listed as a mental disorder

in the DSM-IV-TR, which all three experts agree is the primary

diagnostic tool of American psychiatry.

- 42 -

We recognize that the DSM-IV-TR cautions that inclusion of37 See also Danaipour v.

meets legal or other non-medical criteria for what constitutes

mental disease, mental disorder, or mental disability.” For

purposes of our decision in this case, GID’s inclusion in the

DSM-IV-TR (and its predecessors) evidences widespread recognition

of the condition in the psychiatric profession. Indisputably,

the issue of whether GID is a “disease” for purposes of sec. 213

is for this Court to decide, and we do so on the basis of a range

of factors, including GID’s inclusion in the DSM-IV-TR.

(...continued)

Encyclopedia 595, 1234 (Random House 2003); The Dictionary of

Medical Terms 157 (4th ed. 2004); Dorland’s Illustrated Medical

Dictionary, http://www.mercksource.com/pp/us/cns_hl_

dorlands; “Gender Identity Disorder and Transsexualism”, Merck

Manuals Online Medical Library, http://www.merck.com./mmpe/print/

sec15/ch203/ch203b.html; Miller-Keane Encyclopedia and Dictionary

of Medicine, Nursing, and Allied Health 728, 1808 (2003);

National Institutes of Health, U.S. National Library of Medicine,

MedlinePlus Medical Encyclopedia, http://nlm.nih.gov/medlineplus/

ency/article/001527.html; Sloane-Dorland Annotated Medical-Legal

Dictionary 202-203, 233, 291, 310, 744 (1987).

Transsexualism is also listed and described in the

International Classification of Diseases, Ninth Revision,

Clinical Modification (6th ed.) a publication of the American

Medical Association used in the United States for assigning codes

to various diagnoses and procedures. Similarly, various gender

identity disorders, including transsexualism, are listed and

described in the International Classification of Diseases, Tenth

Revision, a 1992 publication of the World Health Organization

that classifies diseases and health related problems.

Respondent stresses on brief that he stipulated that the

foregoing publications were medical reference texts but did not

stipulate the truth of their contents. Except where otherwise

indicated, we consider medical reference texts solely for the

fact that they recognize GID or transsexualism and treatments for

the condition.

McLarey, 286 F.3d 1, 17 (1st Cir. 2002) (characterizing the DSMIV

as “the leading psychiatric diagnostic manual”). GID or

transsexualism is also listed in numerous medical reference

texts, with descriptions of their characteristics that are

similar to those in the DSM-IV-TR.

Commissioner, supra.

- 43 -

See, e.g., American Medical Association, Complete Medical38 See Starrett v.

of a scientifically supported etiology of the condition”, but as

petitioner’s expert Dr. Brown pointed out, the same could be said

of most mental disorders listed in the DSM.

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.

demonstrates that GID is a widely recognized and accepted

diagnosis in the field of psychiatry.

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.

- 44 -

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 section 213.

Third, respondent’s position that GID is not a significant

psychiatric disorder is at odds with the position of every U.S.

- 45 -

Court of Appeals that has ruled on the question of whether GID

poses a serious medical need for purposes of the Eighth

Amendment, which has been interpreted to require that prisoners

receive adequate medical care. See Estelle v. Gamble, 429 U.S.

97, 103 (1976). In Estelle v. Gamble, supra at 104, the U.S.

Supreme Court held that “deliberate indifference to serious

medical needs of prisoners constitutes the ‘unnecessary and

wanton infliction of pain’ * * * proscribed by the Eighth

Amendment.” The U.S. Courts of Appeals have accordingly

interpreted Estelle v. Gamble, supra, as establishing a two-prong

test for an Eighth Amendment violation: it must be shown that (1)

the prisoner had a “serious medical need” which (2) was met with

“deliberate indifference” by prison officials. See, e.g., Cuoco

v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000) (applying the

Eighth Amendment test to a pretrial detainee); White v. Farrier,

849 F.2d 322, 325-327 (8th Cir. 1988).

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

- 46 -

Dr. Schmidt attributed his misgivings in part to the “lack39 On balance, the evidence amply

a serious medical condition, relying on its listing in the DSMIII

and the American Medical Association’s Encyclopedia of

Medicine (1989). See Farmer v. Brennan, 511 U.S. 825, 829

(1994).

The U.S. Supreme Court has also treated transsexualism as

unnecessary to decide, whether GID or transsexualism constitutes

a serious medical need for purposes of the Eighth Amendment.

See Praylor v. Tex. Dept. of Criminal Justice, 430 F.3d 1208 (5th

Cir. 2005), withdrawing 423 F.3d 524 (5th Cir. 2005) (holding

that transsexualism constitutes a serious medical need for Eighth

Amendment purposes); Farmer v. Moritsugu, 163 F.3d 610, 614-615

(D.C. Cir. 1998).

Two Courts of Appeals have considered, but found it

where the Court of Appeals for the Seventh Circuit, after

concluding that the plaintiff inmate had failed to establish that

he had gender dysphoria, observed in dicta that since treatment

for gender dysphoria is “protracted and expensive” and the Eighth

Amendment does not require that a prisoner be given medical care

“that is as good as he would receive if he were a free person”,

the Amendment “does not entitle a prison inmate to curative

treatment for his gender dysphoria.” Id. at 671-672.

(7th Cir. 1997) (describing gender dysphoria as a “profound

psychiatric disorder”).

otherwise.

But see Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997),40 No U.S. Court of Appeals has held41

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 the

District Court for further proceedings regarding that point, but

they reflect a clear consensus that GID constitutes a medical

condition of sufficient seriousness that it triggers the Eighth

Amendment requirement that prison officials not ignore or

disregard it.

- 47 -

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 Appeal 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 section

213.

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

- 48 -

hormones is especially persuasive regarding the diagnosis.

Ms. Ellaborn observed that petitioner’s reaction to the effects

of the hormones was essentially positive; that is, the hormones

engendered a sense of well being and a calming effect in

petitioner–-a well-documented phenomenon in genetic males

suffering from GID who receive feminizing hormones, confirmed by

both respondent’s and petitioner’s experts. By contrast, as Dr.

Brown observed, when feminizing hormones are administered to non-

GID-suffering males (for other medical reasons), and those males

experience impotence, widening hips, and breast development,

their response is not a sense of well-being but anxiety.

her initial diagnosis was confirmed by petitioner’s experience

with the steps in the triadic therapy sequence.

Petitioner’s response to the administration of crossgender43

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 section 213 disputes, to the judgment

of the medical professionals who treated the patient, see, e.g.

Fay v. Commissioner, 76 T.C. at 414; Jacobs v. Commissioner, 62

T.C. at 818; Fischer v. Commissioner, 50 T.C. at 173-174. All

three witnesses who supported petitioner’s GID diagnosis

interviewed petitioner. Since Dr. Schmidt did not, his analysis

is entitled to considerably less weight, and we conclude that

there is no persuasive basis to doubt the diagnosis.

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

section 213, and that petitioner suffered from it, leave the

question of whether petitioner’s hormone therapy, sex

- 49 -

reassignment surgery, and breast augmentation surgery “[treated]”

GID within the meaning of section 213(d)(1)(A) and (9)(B).

In contrast to their dispute over the meaning of “disease”,

the parties have not disputed the meaning of “treatment” or

“treat” as used in section 213(d)(1)(A) and (9)(B), respectively.

We accordingly interpret the words in their ordinary, everyday

sense. See Crane v. Commissioner, 331 U.S. 1, 6 (1947); Old

Colony R.R. Co. v. Commissioner, 284 U.S. 552, 560 (1932) (“‘The

legislature must be presumed to use words in their known and

ordinary signification’” (quoting Levy’s Lessee v. M’Cartee, 6

Pet. 102, 110 (1832))); see also Heard v. Commissioner, 269 F.2d

911, 912 (3d Cir. 1959) (“The words of * * * [section 213] are to

be given their normal meaning without striving to read exceptions

into them.”), revg. in part 30 T.C. 1093 (1958).

“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

Collegiate Dictionary 1333 (11th ed. 2008); “

a patient or part of the body) medically or surgically: deal with

by medical or surgical means: give a medical treatment to * * *

5 a: to care for (as

International Dictionary 2435 (2002).

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”. Sec. 1.213-1(e)(1)(ii),

- 50 -

to seek cure or relief of * * *”, Webster’s Third New

http://www.merck.com/mmhe/print/sec07/ch104/ch104b.html;

“Gender Identity Disorder and Transsexualism”, Merck Manuals

Online Medical Library, supra; National Institutes of Health,

U.S. National Library of Medicine, Medline Plus Medical

Encyclopedia, supra; Senagore & Frey, “Orchiectomy”, Gale

Encyclopedia of Surgery (Thomson Gale 2003).

See “Gender Identity”, Merck Manuals Second Home Edition,

established as learned treatises, see Fed. R. Evid. 803(18), and

(continued...)

Income Tax Regs. (emphasis added). A treatment should bear a

“direct or proximate therapeutic relation to the * * * condition”

sufficient “to justify a reasonable belief the * * * [treatment]

would be efficacious”. Havey v. Commissioner, 12 T.C. 409, 412

(1949). In Starrett v. Commissioner, 41 T.C. at 881, this Court

concluded that the taxpayer’s psychoanalysis was a treatment of

disease because the taxpayer was “thereby relieved of the

physical and emotional suffering attendant upon” the condition

known as anxiety reaction.

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.

psychiatric reference text that has been established as

authoritative in this case endorses sex reassignment surgery as a

treatment for GID in appropriate circumstances.

- 51 -

The following psychiatric reference texts have been44 Indeed, every45 No psychiatric

endorse the essential elements of the triadic therapy sequence of

the Benjamin standards, including sex reassignment surgery.

American Psychiatric Association, Treatments of Psychiatric

Disorders, ch. 70 (3d ed., American Psychiatric Press 2001):

The [Benjamin] “Standards of Care” for treating genderdysphoric

individuals, developed by an international

group of experts [citation omitted] and followed by

most responsible professionals in the field, provides a

valuable guide for evaluation and treatment. * * *

* * * * * * *

Once a patient has met readiness criteria for referral

as outlined in the [Benjamin] Standards of Care, she

must decide on a surgical technique and surgeon. * * *

Becker, et al., ch. 19, “Sexual and Gender Identity Disorders”,

in The American Psychiatric Press Textbook of Psychiatry (3d

ed.):

Sex reassignment is a long process that must be

carefully monitored. * * * If the patient is considered

appropriate for sex reassignment, psychotherapy should

be started to prepare the patient for the cross-gender

role. The patient should then go out into the world

and live in the cross-gender role before surgical

reassignment. * * * After 1-2 years, if these measures

have been successful and the patient still wishes

reassignment, hormone treatment is begun. * * * After

1-2 years of hormone therapy, the patient may be

considered for surgical reassignment if such a

procedure is still desired.

Green, in New Oxford Textbook of Psychiatry, supra at 914-915:

* * * The [Benjamin standards of care] programme

includes, in addition to ongoing psychiatric or

psychological monitoring, possibly endocrine therapy

and, depending on the outcome of the graduated trial

period of cross-gender living, possibly sex

reassignment surgical procedures. The philosophy of

treatment is to do reversible procedures before those

that are irreversible.

* * * If patients can demonstrate to themselves and

mental health experts that they have successfully

negotiated the ‘Real Life Test’ and are adjusting

(continued...)

- 52 -

(...continued)

better socially in this new gender role, they can be

referred for surgery.

Sadock & Sadock, Kaplan & Sadock’s Comprehensive Textbook of

Psychiatry 1659-1660 (7th ed., Lippincott Williams & Wilkins

2000):

* * * When the patient’s gender dysphoria is severe and

intractable, sex reassignment may be the best solution.

The first medical intervention in this process is

hormone therapy. * * *

* * * The second major stage in the medical treatment

of transsexualism is sex reassignment surgery. All

major gender identity clinics in North America and

western Europe require their patients to live full-time

in the cross-gender role for some time--usually 1 to 2

years--prior to surgery.

Tasman et al., Psychiatry 1491-1492 (2d ed., John Wiley & Sons

2003):

The treatment of * * * [gender identity disorders],

although not as well-based on scientific evidence as

some psychiatric disorders, has been carefully

scrutinized by multidisciplinary committees of

specialists with the Harry Benjamin International

Gender Dysphoria Association [WPATH] for over 20 years.

For more details in managing an individual patient,

please consult its “Standards of Care” [citation

omitted]. * * *

* * * * * * *

Living in the aspired-to-gender role--working,

relating, conducting the activities of daily living--is

a vital process that enables one of three decisions: to

abandon the quest, to simply live in this new role, or

to proceed with breast or genital surgery [citation

omitted]. * * *

Ideally, hormones should be administered by

endocrinologists who have a working relationship with a

mental health team dealing with gender problems. * * *

* * * * * * *

Surgical intervention is the final external step.

reference text has been brought to the Court’s attention that

- 53 -

(...continued)

psychiatric reference text that respondent claimed did not

reference the Benjamin standards of care; namely, Becker, et al.,

supra. However, a review of the chapter cited (particularly pp.

743-744) reveals that the Benjamin triadic sequence-–cross-gender

hormone therapy, living in the cross-gender role, and sex

reassignment surgery-–is discussed (without naming the Benjamin

standards or WPATH specifically) and endorsed as the appropriate

treatment protocol, as set out supra note 45.

fails to list, or rejects, the triadic therapy sequence or sex

reassignment surgery as the accepted treatment regimen for GID.

Respondent offered into evidence a chapter from a46

Several courts have accepted the Benjamin standards as

representing the consensus of the medical profession regarding

the appropriate treatment for GID or transsexualism. See Gammett

v. Idaho State Bd. of Corr., No. CV05-257-S-MHW (D. Idaho, July

27, 2007) (memorandum decision and order); Houston v. Trella, No.

2:04-CV-01393 (D.N.J., Sept. 25, 2006) (opinion); Kosilek v.

Maloney, 221 F. Supp. 2d 156, 158 (D. Mass. 2002); Farmer v.

Hawk-Sawyer, 69 F. Supp. 2d 120, 121 n.3 (D.D.C. 1999).

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

- 54 -

evidence of the view of sex reassignment surgery as unethical and

not medically necessary. On cross-examination, Dr. Schmidt

acknowledged that the McHugh article was not published in a peerreviewed

medical journal but instead in a religious publication.

See McHugh, “Surgical Sex”, First Things, The Institute on

Religion and Public Life (November 2004), http://www.firstthings.

com/index.php (online edition). Respondent likewise cites the

McHugh article on brief as medical opinion, without disclosing

the source of its publication.

Dr. Schmidt cited an article by Dr. Paul McHugh as

surgically created vagina in a biological male with GID “creates

an internal sense of consistency that is very important in

maintaining a balance on a day-to-day basis and not having to

bounce back and forth between, you know, am I male or am I

female.”

is unethical,

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.

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 clinic, to the extent Dr. Schmidt is suggesting that

the standards have limited acceptance among professionals

knowledgeable regarding GID, he is unpersuasive. The widespread

recognition of the Benjamin standards in the medical literature

- 55 -

Dr. Schmidt also acknowledged previously stating that a47 a position that Dr. Schmidt characterized as a48 Dr.

The cure for the male transsexual consists not of

psychiatric treatment designed to make the patient

content with his biological sexual identity–-that

doesn’t work-–but of estrogen therapy designed to

create the secondary sexual characteristics of a woman

followed by the surgical removal of the genitals and

the construction of a vagina-substitute out of penile

tissue. [Citations omitted.]

See also Tasman et al., Psychiatry 1491 (2d ed., John Wiley &

Sons 2003):

No one knows how to cure [through psychotherapy] an

adult’s gender problem. People who have long lived

with profound cross-gender identifications do not get

insight--either behaviorally modified or medicated--and

find that they subsequently have a conventional gender

identity. Psychotherapy is useful, nonetheless

[citation omitted]. * * *

in evidence strongly supports the conclusion that the standards

enjoy substantial acceptance.

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).

Judge Posner wrote in Maggert v. Hanks, 131 F.3d at 671:49

Respondent also argues that petitioner’s sex reassignment

surgery did not “treat” disease within the meaning of section

213(d)(9)(B) because there is insufficient scientific evidence of

- 56 -

the surgery’s efficacy in treating GID. Petitioner’s and

respondent’s experts disagree regarding the sufficiency of the

scientific proof of the surgery’s efficacy. Respondent’s expert

Dr. Schmidt contends that efficacy (beyond patient satisfaction)

has not been demonstrated, whereas petitioner’s expert Dr. Brown

believes there is ample proof of positive therapeutic outcomes.

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 divided into two groups, one

receiving surgery promptly and the other having surgery postponed

for 2 years; “The group that received the earlier surgery showed

significant improvement in a range of psychometric measures and

maintained employment. The unoperated group showed no

improvement in psychological testing and deteriorated in

employment”); Green & Blanchard, “Gender Identity Disorders,” in

Kaplan & Sadock’s Comprehensive Textbook of Psychiatry 1660

(Sadock & Sadock, eds., 7th ed., Lippincott Williams & Wilkins

2000) (“Outcome studies as a whole suggest that surgical sex

reassignment produces additional improvements in psychosocial

adjustment”); Levine, “Sexual Disorders”, in Psychiatry 1492

(Tasman, et al., eds., 2d ed., John Wiley & Sons 2005) (“Surgery

can be expected to add further improvements in the lives of

patients [citation omitted]--more social activities with friends

- 57 -

and family, more activity in sports, more partner sexual

activity, and improved vocational status”).

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 section 213.

See, e.g., Dickie v. Commissioner, T.C. Memo. 1999-138

(naturopathic cancer treatments deductible); Crain v.

Commissioner, T.C. Memo. 1986-138 (holistic cancer treatments

deductible but for failure of substantiation); Tso v.

Commissioner, T.C. Memo. 1980-399 (Navajo “sings” (healing

ceremonies) deductible); Rev. Rul. 72-593, 1972-2 C.B. 180

(acupuncture deductible); Rev. Rul. 55-261, 1955-1 C.B. 307

(services of Christian Science practitioners deductible). It is

sufficient if the circumstances “justify a reasonable belief the

* * * [treatment] would be efficacious”. Havey v. Commissioner,

12 T.C. at 412. That standard has been fully satisfied here.

The evidence is clear that a substantial segment of the

psychiatric profession has been persuaded of the advisability and

efficacy of hormone therapy and sex reassignment surgery as

treatment for GID, as have many courts.

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-gender

hormone therapy and sex reassignment surgery unethical because

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feminizing hormones to genetic male GID sufferers produces a

psychological calming effect in addition to physical changes.

Sex reassignment surgery in genetic males uses penile tissue in

the newly created vagina in a manner designed to make the patient

capable of arousal and intercourse.

they disrupt what is considered to be a “normally functioning

hormonal status or destroy healthy, normal tissue.” However, the

Internal Revenue Service has not heretofore sought to deny the

deduction for a medical procedure because it was considered

unethical by some. See, e.g., Rev. Rul. 73-201, 1973-1 C.B. 140

(cost of abortion legal under State law is deductible medical

care under section 213); Rev. Rul. 55-261, supra (services of

Christian Science practitioners deductible). Absent a showing of

illegality, any such ground for denying a medical expense

deduction finds no support in section 213.

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, function

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

- 59 -

definitions of treatment, see Starrett v. Commissioner, supra;

sec. 1.213-1(e)(1), Income Tax Regs., and to “relieve” is to

“treat” according to standard dictionary definitions. We

therefore conclude and hold that petitioner’s hormone therapy and

sex reassignment surgery “[treated] * * * disease” within the

meaning of section 213(d)(9)(B) and accordingly are not “cosmetic

surgery” as defined in that section.

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 section 213(d)(9)(B), our

conclusion that these procedures treat disease also finds support

in the opinions of other courts that have concluded for various

nontax purposes that sex reassignment surgery and/or hormone

therapy are not cosmetic procedures. See, e.g., Meriwether v.

Faulkner, 821 F.2d at 411-413 (rejecting, in an Eighth Amendment

case, the District Court’s conclusion that a transsexual inmate’s

requested hormone therapy was “‘elective medication’ necessary

only to maintain ‘a physical appearance and life style’” and

noting that numerous courts have “expressly rejected the notion

that transsexual surgery is properly characterized as cosmetic

surgery, concluding instead that such surgery is medically

necessary for the treatment of transsexualism”); Pinneke v.

Preisser, 623 F.2d 546, 548 (8th Cir. 1980) (State Medicaid plan

may not deny reimbursement for sex reassignment surgery on

grounds that it is “cosmetic surgery”); Rush v. Parham, 440 F.

Supp. 383, 390-391 (N.D. Ga. 1977) (to same effect), revd. on

- 60 -

other grounds 625 F.2d 1150 (5th Cir. 1980); J.D. v. Lackner, 145

Cal. Rptr. 570, 572 (Ct. App. 1978) (sex reassignment surgery is

not “cosmetic surgery” as defined in State Medicaid statute; “We

do not believe, by the wildest stretch of the imagination, that

such surgery can reasonably and logically be characterized as

cosmetic.”); G.B. v. Lackner, 145 Cal. Rptr. 555, 559 (Ct. App.

1978) (to same effect); Davidson v. Aetna Life & Cas. Ins. Co.,

420 N.Y.S.2d 450, 453 (N.Y. Sup. Ct. 1979) (sex reassignment

surgery is not “cosmetic surgery” within meaning of medical

insurance policy exclusion; sex reassignment surgery “is

performed to correct a psychological defect, and not to improve

muscle tone or physical appearance. * * * [It] cannot be

considered to be of a strictly cosmetic nature.”). But see Smith

v. Rasmussen, 249 F.3d 755, 759-761 (8th Cir. 2001) (denial of

reimbursement for sex reassignment surgery proper where State

Medicaid plan designated sex reassignment surgery as “cosmetic

surgery” and alternate GID treatments available).

2. Breast Augmentation Surgery

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

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promote the proper function of the body or prevent or treat

illness or disease”, placing the surgery squarely within the

section 213(d)(9)(B) definition of “cosmetic surgery”.

Petitioner has not argued, or adduced evidence, that the breast

augmentation surgery ameliorated a deformity within the meaning

of section 213(d)(9)(A). Accordingly, if the breast augmentation

surgery meets the definition of “cosmetic surgery” in section

213(d)(9)(B), it is not “medical care” that is deductible

pursuant to section 213(a).

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

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The undisputed evidence is that administration of50) are undertaken by

fair amount of breast development * * * from the hormones” at the

time of her presurgical consultation with Dr. Meltzer.

“approximately B cup breasts with a very nice shape.”

all of the contemporaneous documentation of the condition of

petitioner’s breasts before the surgery suggests that they were

within a normal range of appearance, and there is no

documentation concerning petitioner’s comfort level with her

breasts “in the social gender role”.

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 section 213(d)(9)(B).

Instead, the surgery merely improved her appearance.

The breast augmentation surgery is therefore “cosmetic

surgery” under the section 213(d)(9)(B) definition unless it

“meaningfully [promoted] the proper function of the body”. The

parties have stipulated that petitioner’s breast augmentation

- 63 -

Even petitioner conceded in her testimony that she had “a51 Thus,

procedures petitioner underwent to feminize her facial features

in 2000 and 2005 demonstrate a propensity for cosmetic surgery

that is relevant in assessing whether petitioner’s hormone

therapy and sex reassignment surgery were undertaken for the

purpose of improving petitioner’s appearance rather than treating

a disease.

We disagree. The deductibility of petitioner’s facial

surgery, undertaken in years other than the year in issue, is not

at issue in this case. However, there is substantial evidence

that such surgery may have served the same therapeutic purposes

as (genital) sex reassignment surgery and hormone therapy;

namely, effecting a female appearance in a genetic male. Both

Ms. Ellaborn and Dr. Meltzer testified that petitioner had

masculine facial features which interfered with her passing as

female. The expert testimony confirmed that passing as female is

important to the mental health of a male GID sufferer, and the

Benjamin standards contemplate surgery to feminize facial

features as part of sex reassignment for a male GID sufferer.

Thus, we conclude that the facial surgery does not suggest, as

respondent contends, that petitioner had a propensity for

conventional cosmetic surgery.

“did not promote the proper function of her breasts”. Although

petitioner expressly declined to stipulate that the breast

augmentation “did not meaningfully promote the proper functioning

of her body within the meaning of I.R.C. § 213”, we conclude that

the stipulation to which she did agree precludes a finding on

this record, given the failure to adhere to the Benjamin

standards, that the breast augmentation surgery “meaningfully

[promoted] the proper function of the body” within the meaning of

section 213(d)(9)(B). Consequently, the breast augmentation

surgery is “cosmetic surgery” that is excluded from deductible

“medical care”.

Respondent also argues that the various surgical52

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petitioner’s hormone therapy. His own expert, Dr. Schmidt,

effectively concedes the medical necessity of hormone therapy

when he argues that sex reassignment surgery is not medically

necessary because hormone therapy is one of the “alternative,

successful methods of managing Gender Identity Disorder short of

surgery.”

Respondent does not make this argument with respect to

report of the Senate Finance Committee issued in connection with

the enactment of the cosmetic surgery exclusion of sec.

213(d)(9):

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.

* * * * * * *

* * * [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).]

The Senate Finance Committee report is set out more fully supra

note 27. We note that the discussion of sec. 213(d)(9) in the

conference report issued with respect to the agreed final version

of sec. 213(d)(9) contains no reference to “medical necessity” or

any variant of the phrase. See H. Conf. Rept. 101-964, at 1031

(1990), 1991-2 C.B. 560, 562.

E. Medical Necessity

Finally, respondent argues that petitioner’s sex

reassignment surgery was not “medically necessary”,

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 section 213(d)(9).

in effect argues that the legislative history’s contrast of

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Respondent relies upon the following excerpts from the53 which54 Respondent

a therapist should remain neutral regarding the decision to

undergo sex reassignment surgery, believing that a patient

experiencing the distress of GID is not well equipped to make a

(continued...)

nondeductible cosmetic surgery with “medically necessary”

procedures evidences an intent by Congress to impose a

requirement in section 213(d)(9) of medical necessity for the

deduction of procedures affecting appearance. We find it

unnecessary to resolve respondent’s claim that section 213(d)(9)

should be interpreted to require a showing of “medical necessity”

notwithstanding the absence of that phrase in the statute. That

is so because respondent’s contention would not bar the

deductions at issue, inasmuch as we are persuaded, as discussed

below, that petitioner has shown that her sex reassignment

surgery was medically necessary.

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.

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Petitioner’s expert Dr. Brown disagrees with the view that55 Taken

decision on irreversible surgery. In Dr. Brown’s opinion, the

therapist should counsel patients towards less invasive

treatments until they have proven ineffective and the surgery

appears to be the only effective alternative left.

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 at

412; Pinneke v. Preisser, 623 F.2d at 548; Sommers v. Iowa Civil

- 67 -

(...continued)

on whether sex reassignment surgery is medically necessary, we

consider that Dr. Brown is widely published in peer-reviewed

medical journals and academic texts on the subject of GID,

whereas Dr. Schmidt is not. Accordingly, there is a reasonable

basis to conclude that Dr. Brown’s views are more widely

recognized and accepted in the psychiatric profession.

Rights Commn., 337 N.W.2d at 473; Doe v. Minn. Dept. of Pub.

Welfare, 257 N.W.2d at 819; Davidson v. Aetna Life & Cas. Ins.

Co., 420 N.Y.S.2d at 453.

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,

judgment of the professional treating petitioner, the agreement

of all three experts that untreated GID can result in selfmutilation

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

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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. at 818.

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 who change their gender role and

appearance in society, and (3) the expert-backed but commonsense

point that the desire of a genetic male to have his genitals

removed requires an explanation beyond mere dissatisfaction with

appearance (such as GID or psychosis), petitioner would not have

undergone hormone therapy and sex reassignment surgery except in

an effort to alleviate the distress and suffering attendant to

GID. Respondent’s contention that petitioner undertook the

surgery and hormone treatments to improve appearance is at best a

superficial characterization of the circumstances that is

thoroughly rebutted by the medical evidence.

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Petitioner has shown that her hormone therapy and sex

reassignment surgery treated disease within the meaning of

section 213 and were therefore not cosmetic surgery. Thus

petitioner’s expenditures for these procedures were for “medical

care” as defined in section 213(d)(1)(A), for which a deduction

is allowed under section 213(a).

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.

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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. 62. 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. 62, I find superfluous and potentially

misleading. In particular, the observation of Dr. Meltzer,

petitioner’s surgeon, in his presurgical note that petitioner’s

breasts were of a very nice shape was not an aesthetic judgment

but rather a clinical observation relating to the shape of her

breasts in comparison to the breasts of other transsexual males

on feminizing hormones. Moreover, Dr. Meltzer testified that the

surgery was different from the surgery he would perform on a

biological female: “[I]t was to give her a female looking

breast, which is quite different from a male breast”. In

response to a question from the Court, he testified that the

primary purpose of the breast surgery was not to improve

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When weighing Dr. Brown’s and Dr. Schmidt’s opposing views56 the

His opening brief is 209 pages long, and his answering brief is

72 pages long. Between them, the two briefs show a total of

eight attorneys assisting the Chief Counsel, in whose name the

briefs are filed. I assume that respondent made all the

arguments that he thought persuasive.

petitioner’s appearance but “to assign her to the appropriate

gender”. His medical notes should not be taken out of context.

II. Statutory Interpretation

A. Introduction

We face a task that is not unusual for us, that is,

interpreting the Internal Revenue Code, and we employ a set of

tools (canons of construction and the like) that are familiar to

both us and the parties. My colleagues raise arguments in

support of respondent that he did not make.

not addressed by the majority, I use this opportunity to address

some of them.

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 biological male who is

- 72 -

Clearly the issues before us are important to respondent.1 Because they are

following paragraph.

convinced he is a woman but does not exhibit clinically

significant distress or impaired functioning fails to satisfy at

least one precondition set forth in DSM-IV-TR for a diagnosis of

GID.

Instead, for someone suffering from severe GID (like petitioner)

the medical problem--the disease--is the symptoms. For a

significant part of the medical community, sex reassignment

surgery is an accepted approach to eliminating a sufficient

number of those symptoms so that a diagnosis of GID will no

longer hold. And if the diagnosis will no longer hold, then the

patient is cured.

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

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See discussion of that precondition in the immediately2 Simply put, the “delusion” itself is not the disease.

Dictionary of the English Language 517 (4th ed. 2000) is: “A

pathological condition of a part, organ, or system of an organism

resulting from various causes, such as infection, genetic defect,

or environmental stress, and characterized by an identifiable

group of signs or symptoms.” (Emphasis added.)

The principal meaning of “disease” in the American Heritage

Schmidt, Jr., M.D., disagreed with Dr. Brown’s use of the word

“cure” in connection with petitioner, since she continued to

suffer from psychiatric disorders, but he did not dispute that

someone who presents no symptoms of a disease would be considered

cured of that disease.

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 DSMIV-

TR (cited by the majority, majority op. p. 5) 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,

when those signs or symptoms, once present, are no longer present

in sufficient degree or severity to characterize (diagnose) the

disease, the patient is free of the disease; i.e., she is

“cured”. Whether in fact petitioner was free of clinically

significant distress or impairment (there may have been some

disagreement among the doctors)

Dr. Brown’s argument. If petitioner could be cured, then she

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In rebuttal to Dr. Brown, respondent’s expert, Chester W.3 and4 has no effect on the force of

then it is treatable: “[A]ny procedure that does ‘cure’ a

disease necessarily ‘treats’ it.” Gustafson op. note 7.

could be treated,

ground decisions as to medical care on the efficacy of the

treatment. Majority op. p. 57. Judge Gustafson has failed to

convince me that we should understand the verb “to cure” in any

but the way Dr. Brown uses it.

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 any deductible procedure must address a physically

related malady.” Goeke op. p. 107. 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. 108. 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. 109. I disagree in general with

Judge Goeke’s reliance on the report given the unambiguous

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Judge Gustafson seems to concede that if GID is curable,5 and, as the majority makes clear, we do not

extent that, to give meaning to the term “other similar

procedures” in sec. 213(d)(9)(A), the word “surgical” probably

should be inferred before the word “procedure”. Sec.

213(d)(9)(B) would then read: “Cosmetic surgery defined.--For

purposes of this paragraph, the term ‘cosmetic surgery’ means any

[surgical] 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.”

Without the inferred “surgical”, the set of procedures

constituting “cosmetic surgery” would seem to encompass every

procedure (surgical or not) doing nothing other than improving

the patient’s appearance, apparently leaving “other similar

(continued...)

language of section 213(d)(9), and I disagree in particular with

the inference he draws from the report.

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 Internal Revenue Code:

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 Commn., 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 section 213(d)(9) only in the

definition of “cosmetic surgery” in section 213(d)(9)(B).

- 76 -

That provision, on its face, is ambiguous only to the6 It

procedures” an empty set (empty because all procedures directed

at improving appearance would already be in the set labeled

“cosmetic surgery”).

(...continued)

sec. 213(d)(9) is also clear on its face. That term is the

object of the verb “to ameliorate”, which is different from the

verb “to treat”. To treat a disease is to seek to cure it; to

ameliorate a disfiguring disease is seek to reduce the effects of

a disease now gone. For example, consider dermal abrasion to

erase scars left by a severe case of adolescent acne.

forms part of the expression “does not * * * prevent or treat

illness or disease”, and nothing in the definition indicates that

the expression excludes surgical treatments for mental illness or

mental disease. The language of section 213(d)(9)(B) is

sufficiently plain that, in searching the legislative history of

the provision for a contradiction, I would keep firmly in mind

the Supreme Court’s injunction in United States v. Ron Pair

Enters., Inc., 489 U.S. 235, 242 (1989): Ordinarily, the plain

meaning of the statutory language is conclusive.

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 used therein.”

Campbell v. Commissioner, supra at 63. Here there is no such

evidence. The paragraph of the Senate Finance Committee report

on which Judge Goeke relies does not adequately illuminate

subparagraph (B) of section 213(d)(9) because it discusses

“disease” only in the context of the amelioration of a

“disfiguring disease” in subparagraph (A) of that section.

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The reference to “disfiguring disease” in subpar. (A) of7 The

560, 562, which accompanied the Omnibus Budget Reconciliation Act

of 1990, Pub. L. 101-508, sec. 11342(a), 104 Stat. 1388-471

(adding sec. 213(d)(9)), and which postdates the Senate Finance

Committee report, describes the Senate amendment adding sec.

213(d)(9) in the exact terms of the statute:

The 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.

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”.

report does not even mention that, according to the definition of

cosmetic surgery, a procedure that prevents or treats illness or

disease will not be classified as cosmetic surgery under section

213(d)(9)(B). The Senate Finance Committee report is far from

unequivocal evidence of legislative purpose contrary to that to

be inferred from the plain language of section 213(d)(9)(B).

would stick with the plain language and read “treat” and “illness

or disease” to have their ordinary meanings.

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 section 213(d)(9). The

plain language, he argues, compels the conclusion that for

surgery directed at improving appearance to escape classification

as cosmetic surgery under section 213(d)(9)(B) it must both

- 78 -

Indeed, H. Conf. Rept. 101-964, at 1032 (1990), 1991-2 C.B.8 I

cosmetic surgery is not), but that must be what he means, because

he writes: “Thus, if petitioner’s procedures are ‘directed at

improving * * * appearance’ and ‘[do] not meaningfully promote

the proper function of the body’, they are cosmetic surgery

without regard to whether they treat a disease.” Foley op. p.

112. I assume he would concede that a procedure directed at

improving appearance that both meaningfully promotes function and

treats a disease is not cosmetic surgery.

meaningfully promote the proper function of the body and prevent

or treat illness or disease.

not cosmetic surgery within the meaning of section 213(d)(9)(B),

petitioner’s sex reassignment surgery and related procedures (I

assume the hormone therapy) may be “other similar procedures”

under section 213(d)(9)(A). I believe that Judge Foley is wrong

on his first count and that, with respect to his second count,

neither the sex reassignment surgery nor the hormone therapy

falls within the class of “other similar procedures”.

I agree with Judge Foley that section 213(d)(9)(B) sets

forth a two-part test: A procedure is cosmetic surgery if it (1)

is directed at improving appearance and (2) does not meaningfully

promote the proper function of the body or prevent or treat

illness or disease. Because the second part of the test contains

two expressions separated by “or”, that part of the test contains

a “disjunction”; i.e., a compound proposition that is true if one

of its elements is true. Importantly, however, the second part

of the test contains not just a disjunction (i.e., (p or q)), but

rather the negation of a disjunction (i.e., not (p or q)). Judge

Foley errs because he assumes that the expression “not (p or q)”

is equivalent to the expression “(not p) or (not q)”. Thus, he

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redefines cosmetic surgery such that: “A procedure ‘directed at

improving the patient’s appearance’ is cosmetic surgery if it

either does not ‘meaningfully promote the proper function of the

body’ or does not ‘prevent or treat illness or disease.’” Foley

p. 112. Judge Foley simply disregards the rules of grammar and

logic in favor of a part of the legislative history that is

silent as to the interpretative question he fashions.

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

section 213(d)(9)(B), which is of the form “not (p or q)”. Its

equivalent is of the form “(not p) and (not q)”, which,

substituting the relevant words, is: “does not meaningfully

promote the proper function of the body and does not prevent or

treat illness or disease”. The two-part test of section

213(d)(9)(B) for determining whether a procedure is cosmetic

surgery could then equivalently be rewritten: A procedure is

cosmetic surgery if it (1) is directed at improving appearance

and (2) does not meaningfully promote the proper function of the

body and does prevent or treat illness or disease. The second

expression is true only if the procedure neither meaningfully

promotes the proper function of the body nor prevents or treats

illness or disease. If one of the alternatives is true, however,

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Judge Foley does not put it that way (i.e., stating what9 He further argues that, even if

similar procedures”, like cosmetic surgery, must be directed at

improving appearance. If not, it is difficult to imagine what

boundaries Congress had in mind for other “similar” procedures.

then the expression is false and the test is flunked, so that the

procedure is not cosmetic surgery. That, of course, contradicts

Judge Foley’s reading of the statute, but I believe the better

view is to presume that Congress is careful in its drafting and

drafts in accordance, rather than in conflict, with the rules of

grammar and logic.

Finally, Judge Foley argues that the “similar procedures”

referred to in section 213(d)(9)(A) are delimited only by the

exceptions found in that provision and not the exceptions to the

definition of cosmetic surgery found in section 213(d)(9)(B).

I assume that Judge Foley would concede that “other10

That reading seems wrong: Does Judge Foley suggest that even

“similar procedures” that “meaningfully promote the proper

function of the body” and “prevent or treat illness or disease”

are not deductible “medical care”? That cannot be correct. As I

noted earlier, if we infer the word “surgical” before the word

“procedure” in the section 213(d)(9)(B) definition of cosmetic

surgery, then the term “other similar procedures” in section

213(d)(9)(A) is given meaning. I would argue that “other similar

procedures” refers to nonsurgical, appearance-enhancing

procedures, such as hormone therapy, the deductibility of which

is tested by applying first the exceptions in section

213(d)(9)(B), then those in section 213(d)(9)(A). Petitioner’s

sex reassignment surgery is excluded from the class of “other

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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.

Black’s Law Dictionary 213 (9th ed. 2009); see Snyder v.

Commissioner, 93 T.C. 529, 533-534 (1989).

similar procedures” principally because it is surgical. Her

hormone therapy is excluded because, as the majority finds, it

treats her disease.

E. Medical Necessity

Without deciding whether section 213(d)(9) requires a

showing of medical necessity, the majority nonetheless finds that

petitioner’s sex reassignment surgery was medically necessary.

Majority op. p. 65. Apparently, the majority is preparing for a

perhaps different view of the statute by the Court of Appeals.

Judge Holmes’ Brandeis brief

discussing much that is outside the record. We are a trial

court, however, principally restricted to evidence presented, and

arguments made, by the parties. See Snyder v. Commissioner, 93

T.C. 529, 531-535 (1989). On the record before us, and as argued

by respondent, the majority’s finding is not clearly erroneous.

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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

section 213. But I disagree with the majority’s extensive

analysis concluding that sex reassignment is the proper

treatment--indeed, medically necessary at least in “severe”

cases--for GID. It is not essential to the holding and drafts

our Court into culture wars in which tax lawyers have heretofore

claimed noncombatant status.

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

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

- 83 -

A Brandeis brief is:11 exhibits impressive scholarship,Vibrio cholerae, and

sex, see Meyer, “The Theory of Gender Identity Disorders,” 30 J.

Am. Psychoanalytic Assn. 381, 382 (1982) (“Although the term

‘gender’ is sometimes used as a synonym for biological ‘sex,’ the

two should be distinguished. Sex refers to the biology of

maleness or femaleness, such as a 46,XY karyotype, testes, or a

penis. Gender or gender identity is a psychological construct

which refers to a basic

(continued...)

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).

- 84 -

For a longer discussion on the definitions of gender versussense of maleness or femaleness or a1 This, too, is highly

(...continued)

conviction

ordinarily consonant with biology, and so may appear to be a

function of it, gender may be remarkably free from biological

constraint. The sense that ‘I am a female’ in transsexualism,

for example, may contrast starkly with a male habitus.”)

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

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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.

The majority relies heavily on the Benjamin standards to

establish the proper diagnosis and treatment of GID. I certainly

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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

that one is male or female. While gender isguide;”

• “[T]he patient

• “The [Benjamin standards of care] programme includes * * *

may be considered for surgical reassignment;”

possibly

referred for surgery;”

• “[S]ex reassignment

• After noting that the treatment of gender identity disorders

psychiatric disorders

in the aspired-to gender role * * * enables

decisions

role, or to proceed with breast or genital surgery.”

- 87 -

sex reassignment * * * patients * * * can bemay be the best solution;” and“not as well-based on scientific evidence as some,” the cited text states that “[l]ivingone of three: to abandon the quest, to simply live in this new

MainMenu/PsychiatricPractice/PracticeGuidelines_1.aspx (last

visited Jan. 7, 2010).

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 wellbased

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.

See APA, Practice Guidelines, http://www.psych.org/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

- 88 -

17, 2008),

available at

http://www.tgender.net/taw/WPATHMedNecofSRS.pdf (last visited

Jan. 7, 2010). But it also comprehensively addresses other

problems it feels should be solved. For example,

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 publicrecord

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. 67.

The best way of framing the question of deductibility is to

view the medical-expense provisions in the Code as creating a

- 89 -

series of rules and exceptions. Section 262(a) creates a general

rule that personal expenses are not deductible. Section 213(a)

and (d)(1) then creates an exception to the general rule for the

expenses of medical care if they exceed a particular percentage

of adjusted gross income. Section 213(d)(9) then creates an

exception to the exception for cosmetic surgery. And section

213(d)(9)(A) then creates a third-order exception restoring

deductibility for certain types of cosmetic surgery.

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 section

213(d)(1) and so is “medical care.” But it’s presumptively

“cosmetic surgery” under section 213(d)(9)(B) because, as

reconstructive surgery, 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.” It

is nevertheless deductible cosmetic surgery under section

213(d)(9)(A) because it is “necessary to ameliorate a deformity

arising from, or directly related to, a * * * disfiguring

disease.”

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

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suggests that the nosology of mental disorders is far from being

as precise as, for example, the nosology of diseases caused by

bacteria or vitamin deficiencies. I’m therefore somewhat

sympathetic to, if ultimately unpersuaded by (because of the

great weight of precedent), the Commissioner’s effort to change

our interpretation of “disease” in section 213 to mean only

maladies with a demonstrated organic cause.

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.

the listing and classification of disorders in the DSM.

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

section 213(d)(1) is whether the treatment is therapeutic to the

individual involved. See Fischer v. Commissioner, 50 T.C. 164,

174 (1968).

- 91 -

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 section

213(d)(9)(B)--that I cannot join. If it had reasoned simply that

to “treat” illness in section 213(d)(9)(B) meant the same low

standard that it does in section 213(d)(1)--a subjective goodfaith

therapeutic intent on the part of the patient--and stopped,

we wouldn’t be doing anything controversial. In the absence of

any regulation, there would be no reason to demur, because as the

majority carefully points out, the phrase “medical necessity” is

nowhere in the Code. Majority op. p. 65. Nor of course is

medical necessity consistent with the liberal construction of

section 213 both by us and by the IRS. (The deductibility of

Navajo sings and Christian Science prayer did not depend on their

medical necessity.) The phrase occurs in only one place, in what

is not even the most relevant legislative history. Majority op.

note 54.

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,

- 92 -

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. 15. 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 our

opinion on the relative merits of the scientific conclusions of

Dr. Brown (O’Donnabhain’s witness in favor of the medical

necessity of SRS) and Dr. Schmidt (the Commissioner’s witness who

was opposed). Majority op. note 56. The reasoning in that

footnote in favor of Dr. Brown’s opinion is that he is more

widely published than Dr. Schmidt. But Dr. Schmidt was Chair of

the Sexual Disorders Work Group that drafted part of the DSM-IV

on which the majority relies, and is a longtime psychiatry

professor at Johns Hopkins and a founder of its Sexual Behavior

- 93 -

The fluidity of changes in the DSM from edition to edition3 But

than

the subject matter and lack of sectarian slant in what it

publishes. Dr. Schmidt could’ve just as easily cited the same

conclusion by the same author in an essay in

Scholar

(1992). (

with religion.)

Consultation Unit. (I think it fair to take judicial notice that

Johns Hopkins is a well-regarded medical institution.)

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’s Psychiatry Department in

Things

debate, to imply that Johns Hopkins’s conclusion was based merely

on an essay in “a religious publication.”

It is not quite accurate to label First Things, any moreCommentary, a “religious publication” given the breadth ofThe American. McHugh, “Psychiatric Misadventures,” Am. Scholar 497The American Scholar is “untainted” by any connectionFirst. But it is inadequate, if we’re going to weigh in on this

First Things

but serious periodicals, seeks out the small subset of

specialists who can write well.

aspire to be original research, but they are often based on

original research. And so was the

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

- 94 -

, like Commentary and a host of other generalinterest4 Essays by such people don’tFirst Things article by Dr.

University-Affiliated Gender Clinics, and How They Failed to Meet

the Needs of Transsexual People,” Transgender Tapestry #098,

Summer 2002, available at http://www.ifge.org/Article59.phtml

(last visited Jan. 7, 2010).

For an overview of the gender clinics, see Denny, “The

studies. See Witte, “John Money; Helped Create Studies on Gender

Identity,” Associated Press, July 10, 2006,

Dr. Money was extremely influential in gender identityavailable at

http://www.boston.com/news/globe/obituaries/articles/2006/07/10/j

ohn_money_helped_create_studies_on_gender_identity/ (last visited

Jan. 7, 2010). But there is now a consensus that some of his

most noteworthy work was unethical, and in some respects

fraudulent. See Colapinto, “The True Story of John/Joan,”

Rolling Stone, Dec. 11, 1997, at 54; Kipnis & Diamond, “Pediatric

Ethics and the Surgical Assignment of Sex,” 9 J. Clinical Ethics

398 (Winter 1998).

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 of each group. The operated group failed to

demonstrate clear objective superiority over the unoperated

group--in other words, SRS didn’t provide any objective

improvement to the GID patients.

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.”

research on SRS and evaluate its effectiveness. Johns Hopkins,

under the leadership of Dr. John Money,

gender identity clinic in 1965. Money & Schwartz, “Public

- 95 -

5 These clinics would conduct6 opened the first U.S.

Stanford, and Duke were among the more prominent university-based

gender identity clinics conducting research. Denny, supra note

The University of Minnesota, UCLA, Vanderbilt, UVA,

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.

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.

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.

Eventually, all university-based research clinics stopped

the practice of SRS.

primarily the purview of a few boutique surgery practices. While

- 96 -

Some research hospitals, Stanford among them, will perform7 But the first research8 Id. Today, SRS in the United States is

conclusion using a somewhat similar methodology. See Mate-Kole

et al., “A Controlled Study of Psychological and Social Change

After Surgical Gender Reassignment in Selected Male

Transsexuals,” 157 Brit. J. Psychiatr. 261 (1990). There have

also been numerous studies without controls (or the sort of

quasi-controls that Meyer used) that report transsexual persons

generally satisfied with the results of SRS. Such studies are as

problematic as would be drug studies without double-blind control

groups. The question is further complicated by the possibility

that different types of transsexuals, see Blanchard, “Typology of

Male-to-Female Transsexualism,” 14 Archives Sexual Behav. 247

(1985), will experience different outcomes; as might female-tomale

transsexuals compared to male-to-female transsexuals. See

generally Cohen-Kettenis & Gooren, supra at 326-28.

My point is not to pick Meyer over Mate-Kole, but only to

suggest the problem is much more complicated than the majority

lets on. It is certainly beyond the competence of tax judges.

such surgeons--including O’Donnabhain’s--are undoubtedly skilled

in their art, they do not have the capacity to conduct research

on the medical necessity of SRS like the research hospitals.

Their practices use the Benjamin standards, but do not seem to

conduct peer-reviewed studies of their efficacy.

It is true that the Meyer piece has been the subject of

lively controversy,

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

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There has been at least one study that reached a different9 but it is certainly the case that it

slip out of science altogether and land in the politics of the

APA as it prepares the next edition of the DSM. See Carey,

“Psychiatry’s Struggle to Revise the Book of Human Troubles,”

N.Y. Times, Dec. 18, 2008, at A1 (describing petition campaigns

to affect membership of drafting group, and disputes among

transgendered persons about whether GID should even be classified

as a disorder).

to be shown. I do not believe we should have addressed the

issue.

The feelings on both sides may cause the controversy to10

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.

The majority correctly cites the decisions of seven circuit

courts that have concluded GID constitutes a “serious medical

need” for purposes of the Eighth Amendment. Majority op. p. 45.

While confirming that GID is a “profound psychiatric disorder,”

see, e.g., Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997),

no circuit court has in this area held that SRS–-or even the

less-invasive hormone therapy--is a “medically necessary”

treatment for GID. At least one has even emphasized that there

is no right to “any particular type of treatment, such as

estrogen therapy.” Meriwether v. Faulkner, 821 F.2d 408, 413

(7th Cir. 1987) (citing Supre v. Ricketts, 792 F.2d 958 (10th

Cir. 1986), in which the court refused to hold that a prison’s

decision not to provide a self-injuring prisoner with estrogen

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violated the Eighth Amendment as long as some form of treatment

for GID was provided); Lamb v. Maschner, 633 F. Supp. 351 (D.

Kan. 1986) (finding prison officials were not constitutionally

required to provide prisoner with specific treatment requested of

hormones and SRS). Judge Posner’s summary of the GID-prisoner

cases is instructive:

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

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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

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. Minn.

Stat. Ann. sec. 256B.0625 subd. 3a (West 2007).

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-medicalnecessity

conclusion survived

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:

Some cases hold that states cannot categorically exclude, 249 F.3d 755, 760-61 (8th Cir. 2001) (upholdingde novo review by the Second11

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 section 213?--that we face in this

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sex reassignment surgery affected structures or functions of

petitioner's body;” “Petitioner's prescription hormone therapy

affected structures or functions of petitioner's body;” and

“Petitioner's breast augmentation surgery affected structures or

functions of petitioner's body.”

case, but I think they illustrate the majority’s overreach in

finding SRS “medically necessary.”

III.

I do not think that highlighting what I think is the

incorrect interpretation of the Code by the majority is enough.

O’Donnobhain carefully argued in the alternative, and it is to

those alternative arguments that I now turn.

I start back at the beginning with section 213(d)(1)(A),

which defines “medical care” to include not just amounts paid for

the “diagnosis, cure, mitigation, treatment, or prevention or

disease,” but also amounts paid “for the purpose of affecting any

structure or function of the body.” The Commissioner actually

stipulated that all three procedures O’Donnabhain received that

are at issue here--hormone treatment, SRS, and breast

augmentation--meet this alternate definition of “medical care.”

Here’s what the Commissioner stipulated: “Petitioner's12

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. 49

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at distinguishing expenses aimed directly, rather then remotely,

at preventing or alleviating illness. It is immediately followed

by a list of expenses that are

which includes surgery and prescription drugs (like hormones)

that O’Donnabhain received.

(quoting section 1.213-1(e)(1)(ii), Income Tax Regs.). But that

sentence doesn’t apply to the second type of medical care--lest

it be somehow read to overturn even the IRS’s settled opinion

that procedures as diverse as abortion, Rev. Rul. 73-201, 1973-1

C.B. 140, vasectomies, id., and face lifts, Rev. Rul. 76-332,

1976-2 C.B. 81, qualify as “medical care” because they affect a

structure or function of the body. (That’s what the first

sentence of section 1.213-1(e)(1)(ii), Income Tax Regs., says.

There is therefore little doubt that the expenses

O’Donnabhain incurred qualify as medical care under section

213(d)(1)(A). But are they nondeductible “cosmetic surgery?”

Under section 213(d)(9)(B), it is a necessary condition for

characterization as “cosmetic surgery” that a procedure be

“directed at improving the patient’s appearance.” O’Donnabhain

urges us to find that her procedures were directed at resolving

or reducing the psychological distress at feeling herself trapped

in a body of the wrong sex. The Commissioner says that may be

true, but the procedures involved obviously changed her

appearance.

There is no regulation helping us to apply this language, we

need to use the traditional judicial tools to do so. This first

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requires us to parse the meaning of “directed at” and

“improving”. “Directed at” as a phrase is nowhere else in the

Code and is not a specialized legal or tax term, but it has a

common meaning of “focused at,” or “concentrating on.”

“Improving” is likewise a word in ordinary use, meaning “to

enhance,” or “make more desirable.” Webster’s Third New

International Dictionary (1961).

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

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

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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

to relieve the pathological anxiety or distress at being

biologically male (or, alternatively, at not feeling masculine).

Majority op. note 52. Hormones and SRS are, I would hold as a

general matter in such cases, directed at treating GID in this

sense and do not so much improve appearance as create a new one.

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.

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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 subsection

(d)(9)(A). This is easy--O’Donnabhain never argued her breasts

were deformed by “a congenital abnormality, a personal injury

resulting from an accident or trauma, or disfiguring disease.”

I therefore respectfully concur with majority’s result, if

not its reasoning.

GOEKE, J., agrees with this concurring opinion.

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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 section 213.

“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. Sec. 262. As an exception to that general rule

petitioner relies on section 213, which allows a deduction for

“expenses paid * * * for medical care”. Section 213(d)(1)(A)

defines deductible “medical care” to include “the diagnosis,

cure, mitigation, treatment, or prevention of disease, or for the

purpose of affecting any structure or function of the body”. We

have consistently construed the medical expense deduction

“narrowly” for over 40 years. Atkinson v. Commissioner, 44 T.C.

39, 49 (1965); Magdalin v. Commissioner, T.C. Memo. 2008-293.

This case turns on whether petitioner’s claimed deductions are

barred by the exclusion in section 213(d)(9). If medical

deductions are construed narrowly, it follows that statutory

exclusions from medical deduction should be construed broadly.

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.

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Section 213(d)(9) provides:

(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 section 213(d)(9)(B) in allowing a

deduction for petitioner’s genital surgery by concluding that

petitioner suffered from a “disease” and that the genital surgery

in question “[treated]” that disease.

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 section 213(a) and is not

excluded by section 213(d)(9) because it is not cosmetic surgery.

On that basis I concur in the majority’s allowing petitioner a

deduction for genital surgery.

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Having concluded that petitioner’s genital surgery is not

cosmetic, I would reject the notion that it is nevertheless

excluded as a “similar [procedure]” under section 213(d)(9)(A).

Such a reading would negate the import of the definition of

cosmetic surgery in subparagraph (B). Rather, I believe “similar

procedures” in subparagraph (A) refers to procedures directed at

improving appearance that are not necessarily considered

surgical. Accordingly, petitioner’s hormone therapy is not a

similar procedure under section 213(d)(9)(A) because it was in

support of petitioner’s genital surgery and was not directed at

improving petitioner’s appearance. On the other hand, Botox

injections would be an example of a similar procedure in my view.

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 section 213(d)(9)(B) to

include physically altering a patient’s appearance to relieve

extreme mental distress. Therefore, I would hold that the breast

surgery is excluded “cosmetic surgery” under section 213(d)(9) as

a matter of law, and to this extent I agree with Judge

Gustafson’s concurring in part and dissenting in part opinion.

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

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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 section 213. Any expansion of the

medical expense deduction should be addressed by Congress because

it is not clear that surgery which does not address a physical

condition is deductible under section 213(d)(9).

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 section

213(d)(1)(A). I think this argument overlooks the nature of the

exclusion in paragraph (9). The standard for deductibility under

section 213(d)(1)(A) is inherently more generous than that in

subsection (d)(9). Congress enacted section 213(d)(9) in

response to IRS interpretations of “medical care” as including

procedures that permanently altered any structure of the body

even if the procedure was considered to be an elective, purely

cosmetic treatment. As the majority points out, majority op.

note 27, the impetus for section 213(d)(9) was the Senate. The

Senate Finance Committee report stated:

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 * * *.

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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 section 213(d)(9).

The nuances of feminine appearance are virtually without bounds

and expenses for efforts to conform petitioner’s entire body to a

feminine ideal are indistinguishable from excluded expenses

regardless of petitioner’s mental health.

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 section 213(d)(9). The issue is whether

Congress intended to allow deductions for those surgeries if done

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to relieve a mental disease or illness. I remain unconvinced

that Congress intended to permit deductions for such surgery

directed at appearance and not directed at physical disfigurement

or physical dysfunction or physical disease. To accept that

deductibility is possible under different facts is to entertain

that all forms of cosmetic surgery will be deductible medical

expenses if the surgery addresses or relieves mental suffering

caused by a recognized mental disorder. I do not agree that the

statute read in its entirety permits such deduction.

HOLMES, J., agrees with this concurring in the result only

opinion.

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The sentence quoted by the majority is, in context, aimedper se medical-care expenses, and13)ejusdem generis, but it ispurpose was

breast augmentation surgery is “cosmetic surgery” but disagree

with the majority’s reasoning (i.e., conclusion that failure to

strictly adhere to the Benjamin standards constitutes failure to

“treat” gender identification disorder) and interpretation of the

statute.

FOLEY, J., concurring 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 section 213(d)(9) is more than cosmetic.

I. The Majority Does Not Adhere to the Plain Language of

Section 213(d)(9)

Section 213(d) provides in part:

(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 states that section 213(d)(9)(B) “excludes from the

definition any procedure” (emphasis added) that promotes bodily

function or treats a disease. See majority op. p. 30. The

- 112 -

I concur with the majority’s conclusion that petitioner’s1 and dissenting in part:

all of the listed requirements must be satisfied * * * use of the

of the disjunctive ‘or’ means that only one of the listed

requirements need be satisfied.” Kim, Statutory Interpretation:

General Principles and Recent Trends 8 (CRS Report for Congress,

updated Aug. 31, 2008).

statutory definition, however, prescribes what is included, not

excluded, from the definition of cosmetic surgery. The statute

sets forth a two-part test: a procedure is cosmetic surgery if

it (1) is directed at improving appearance and (2) does not

meaningfully promote proper bodily function or

illness or disease. Part two of the test is disjunctive, not

conjunctive. A procedure “directed at improving the patient’s

appearance” is cosmetic surgery if it either does not

“meaningfully promote the proper function of the body” or does

not “prevent or treat illness or disease.” Thus, if petitioner’s

procedures are “directed at improving * * * appearance” and “[do]

not meaningfully promote the proper function of the body”, they

are cosmetic surgery without regard to whether they treat a

disease. The majority does not address either of these prongs

but, instead, asserts that these prongs are irrelevant if the

procedures treat a disease. See majority op. note 30.

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,

- 113 -

rather than strict construction, of section 213(d)(9). According

to their interpretation, a procedure will be treated as cosmetic

surgery only if it meets all three prongs (i.e., it is directed

at improving appearance, does not promote proper bodily function,

and does not prevent or treat illness or disease).

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 section 213(d)(9)(A) specifically provides that the

term “medical care” will include “cosmetic surgery or other

similar procedures” if the “surgery or procedure is necessary to

ameliorate a deformity arising from, or directly related to, a

* * * disfiguring disease.” (Emphasis added.) If any procedure

that treats a disease (i.e., as the majority broadly interprets

that phrase), see majority op. p. 49, is automatically carved out

from the definition of cosmetic surgery, then the section

213(d)(9)(A) specific exclusion, relating to procedures that

ameliorate a deformity arising from a disfiguring disease, is

superfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)

(stating that it is “‘a cardinal principle of statutory

construction’ that ‘a statute ought, upon the whole, to be so

construed that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void, or insignificant.’” (quoting

Duncan v. Walker, 533 U.S. 167, 174 (2001))). Congress in

section 213(d)(9)(A) readily acknowledges that certain procedures

- 114 -

While “use of the conjunctive ‘and’ in a list means that2 prevent or treat

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”). See 21 U.S.C. sec.

881(a)(7) (1988); United States v. 171-02 Liberty Ave., 710 F.

Supp. 46 (E.D.N.Y. 1989); cf. United States v. 141st Street

Corporation, 911 F.2d 870 (2d Cir. 1990). Rather than applying

De Morgan’s laws and interpreting the statutory language to mean

“without the knowledge and without the consent”, the District

Court followed legislative intent, adhered to a plain reading,

and interpreted the language to mean “without the knowledge or

without the consent”. United States v. 171-02 Liberty Ave.,

supra at 50. The court held:

Under 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”

(continued...)

which treat disease may be cosmetic and ensures that these

procedures will nevertheless be deemed medical care if they

ameliorate a deformity. Sex reassignment surgery (SRS) and the

accompanying procedures did not make the list.

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. pp. 78-79. 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.

- 115 -

This tension between Congress’ plain language and De3 In short, section 213(d)(9) must be interpreted with

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”).

cognizance of the fact that this section was enacted by a

Congress intent on limiting deductions for procedures directed at

improving appearance and that Augustus De Morgan was not a member

of the 101st Congress.

II. The Legislative History Provides No Support for the

Deduction of Petitioner’s Expenses

The lack of unanimity among my colleagues may suggest that

section 213(d)(9) is ambiguous and thus resort to legislative

history may be appropriate. See Anderson v. Commissioner, 123

T.C. 219, 233 (2004), affd. 137 Fed. Appx. 373 (1st Cir. 2005).

The sparse legislative history accompanying the enactment of

section 213(d)(9) is quite illuminating. There is certainly no

indication that Congress sought to preserve a deduction for

expenses relating to SRS and the accompanying procedures. To the

contrary, the legislative history states that Congress intended

to preserve deductions relating to:

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.]

- 116 -

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

Section 213(d)(9)(A) provides that “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.” (Emphasis added.) Assuming

arguendo that the majority’s analysis of section 213(d)(9)(B) is

correct, petitioner must nevertheless establish that SRS and the

accompanying procedures are not “similar” to cosmetic surgery.

The majority does not expound on this issue but states:

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 section 213(d)(9)(B),

but there is no statutory or regulatory guidance regarding what

constitutes “similar procedures”. Respondent, who has the

- 117 -

authority to promulgate guidance defining “similar procedures”

and has broad latitude regarding his litigation position,

inexplicably conceded this issue with respect to the hormone

therapy treatment and apparently failed to make this contention

with respect to the SRS.

Section 213(d)(9)(B) provides a potentially broad

disallowance of expenses relating to procedures intended to

improve a taxpayer’s appearance–-a disallowance so broad that

Congress provided exceptions set forth in section 213(d)(9)(A) to

ensure that certain procedures which address deformities were

deemed medical care. The parties have stipulated that

petitioner’s procedures did not ameliorate a deformity. Even if

SRS and the accompanying procedures fail to meet the definition

of “cosmetic surgery”, it is arguable that these procedures are

“similar” to cosmetic surgery, not “medical care”, and thus not

deductible.

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 a disease. In

addition, respondent, but not Congress, appears to concede that

if petitioner’s procedures fail to meet the definition of

cosmetic surgery, these procedures also fail to qualify as

“similar procedures”. See majority op. note 31. In short,

respondent fails to adhere to the plain meaning of the statute.

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If respondent is comfortable, however, with his current

interpretation of the statute and the accompanying litigating

position, I offer a word of advice–-“Katy, bar the door!”

WELLS, VASQUEZ, KROUPA, and GUSTAFSON, JJ., agree with this

concurring in part and dissenting in part opinion.

- 119 -

(...continued)

injections. The majority allows that deduction along with the

deduction for genital sex reassignment surgery. I assume that

the hormone injections are “similar” to cosmetic surgery and

should therefore be disallowed under section 213(d)(9)(A), but I

do not further address this de minimis deduction.

In the year at issue petitioner received $382 of hormone

pronouns to refer to petitioner in her post-SRS state. However,

this convention does not reflect a conclusion that petitioner’s

sex has changed from male to female.

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 section 213 for

breast enhancement surgery, but I dissent to the extent that the

majority allows a deduction for genital sex reassignment surgery.

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 hormones

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.

She

reassignment surgery” (SRS). The question in this case is

whether section 213 allows this deduction.

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I. Non-issues

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 section 213 Congress created a deduction

for “medical care”, thereby implicitly but necessarily importing

into the Internal Revenue Code principles that rely in part on

the judgments of the medical profession. Medical care that is

given pursuant to medical consensus might later prove to have

been unfortunate or even disastrous (such as thalidomide

prescribed for morning sickness); but an eventual discovery that

the care was ill advised would not affect the deductibility of

that care for income tax purposes. To determine deductibility

under section 213, we determine whether a procedure is “medical

care” (as defined in that statute), not whether we would or would

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Consistent with petitioner’s preference, I use feminine1 and underwent facial surgery and2 claimed an income tax deduction for the cost of this “sex

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. 57; 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.

not endorse it as appropriate care. Neither the IRS nor the Tax

Court was appointed to make such medical endorsements.

Consequently, I accept the majority’s conclusions, based on

expert medical testimony describing medical consensus,

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.

However, Congress did not cede to doctors the authority to

grant tax deductions. As the majority acknowledges, majority op.

pp. 38-39, medical experts do not decide the interpretation of

the terms in section 213. Rather, statutory interpretation is

the domain of the courts. Although informed by medical opinion

on the medical matters pertinent to medical expertise, the Court

alone performs the judicial task of determining the meaning of a

statute and applying it to the facts of the case before us, on

the basis of the record before us. My disagreement with the

majority concerns the interpretation and application of

- 122 -

section 213(d)(9), by which Congress deliberately denied

deductibility for “cosmetic surgery or other similar procedures”.

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. Sec. 262. As an exception to that general

rule, Congress enacted in 1942 a deduction for “expenses paid

* * * for medical care”, sec. 213(a); but in 1990 Congress carved

out (and declared non-deductible) “cosmetic surgery or other

similar procedures”, sec. 213(d)(9). We decide today whether SRS

is deductible “medical care” or instead is non-deductible

“cosmetic surgery or other similar procedures”. “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) (emphasis added). This case

therefore requires us to determine whether there is “clear

provision” for the deduction of SRS expenses. I conclude that

section 213 is anything but clear in allowing such a deduction.

A. The language of section 213

The definition of deductible “medical care” in

section 213(d)(1)(A) and the definition of non-deductible

“cosmetic surgery” in the exception in subsection (d)(9)(B) must

be construed in tandem. The subsection reads in part as follows

(emphasis added):

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The majority opinion acknowledges that in the psychiatric3 that GID

the patient’s appearance” for purposes of section 213(d)(9)(B);

respondent contends that it is; and the majority concludes,

majority op. note 30, that it “need not resolve” the issue. On

this basis, however, Judge Goeke’s concurrence would allow a

deduction for the genital SRS because it “was not directed at

improving petitioner’s appearance but rather was functional.”

Goeke op. p. 106. His concurrence thus rightly discerns that

section 213(d)(9)(B) distinguishes “improving * * * appearance”

from “promot[ing] * * * proper function” (emphasis added); but

there is no basis for the conclusion that SRS is “functional”.

Petitioner’s SRS did not involve any attempt to confer female

reproductive function. No one undertaking to “promote” sexual

“function” would perform a penectomy and a castration on a

healthy male body. On the contrary, SRS drastically terminates a

male patient’s functioning sexuality. SRS did not change petitioner

into a “function[ing]” female, but removed his salient

male characteristics and attempted to make him resemble a woman--

i.e., by petitioner’s lights, to “improve[] the patient’s appearance”.

The majority shows that the SRS surgeon does try to

salvage, as much as possible, some possibility for subsequent

(continued...)

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 appearance

Petitioner contends that SRS is not “directed at improving[4]

- 124 -

sexual response, majority op. p. 13, and observes that SRS

“alter[s] appearance (and, to some degree, function)”, majority

op. p. 58 (emphasis added); but the majority makes no finding

that petitioner proved that any identifiable portion of the SRS

expense can be allocated to restoration of “function”. On our

record, petitioner’s SRS must be said to have been directed at

improving appearance rather than promoting function, and it is

therefore within the definition of “cosmetic surgery”. Judge

Holmes’s concurrence, on the other hand, attempts no analysis of

function versus appearance, but rather proposes a different

distinction not explicit in the statute: He would hold that SRS

did not “so much improve [petitioner’s male] appearance as create

a new [female] one.” Holmes op. p. 103 (emphasis added). This

ingenious distinction, if accepted, might well undo the

disallowance of deductions for cosmetic surgery, since plastic

surgery is often marketed and purchased on the grounds that it

supposedly creates a “new appearance”. But in fact, any surgery

that gives the patient a “new appearance” has thereby “improved”

the patient’s former appearance and is “cosmetic surgery” under

section 213(d)(9)(B).

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

- 125 -

(...continued)

tax purposes in 1942 were borrowed from the definitions of “drug”

and “device” added in 1938 to the Federal Trade Commission Act by

the Federal Trade Commission Act amendments of 1938, ch. 49,

sec. 4, 52 Stat. 114, currently codified at 15 U.S.C. sec. 55(c),

(d)(2) (2006). The same five terms currently appear in virtually

identical definitions of “medical care” in 29 U.S.C.

sec. 1191b(a)(2)(A) (2006) (for purposes of group health plans

under ERISA)and 42 U.S.C. sec. 300gg-91(a)(2) (2006) (for

purposes of requirements relating to health insurance coverage).

They also appear in definitions of “drug” and “device” in

21 U.S.C. sec. 321(g)(1)(B) and (h)(2) (2006) and in the

definitions of “radiologic procedure” and “radiologic equipment”

in 42 U.S.C. sec. 10003(2) and (3) (2006). They appear in their

verb forms in 42 U.S.C. sec. 247d-6d(i)(7)(A) (2006) (defining

“qualified pandemic or epidemic product”) and 21 U.S.C. sec.

343(r)(6) (2006) (restricting statements about dietary

supplements). They appear as adjectives and gerunds, along with

“therapeutic” and “rehabilitative”, in 26 U.S.C. sec. 7702B(c)(1)

(defining “qualified long-term care services”). Thus, this

fivefold list is not unique to the Internal Revenue Code.

prevention”;

function of the body”.

In 1990 the concepts of both these prongs were narrowed in

subsection (d)(9)(B) for the purpose of creating a limited

exception to the new disallowance of “cosmetic surgery or other

similar procedures”. That is, appearance-improving procedures

were declared to be non-deductible “cosmetic surgery”, but the

definition given for that term provides a two-prong exception:

These appearance-improving procedures are nonetheless deductible

under (d)(9)(B) (i.e., are not “cosmetic surgery”) if they

“meaningfully promote the proper function of the body” (i.e., not

if they “affect[] any structure or function of the body”, as more

broadly allowed in (d)(1)(A)) and are nonetheless deductible

under (d)(9)(B) if they “prevent or treat” disease (i.e., not if

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The five terms employed to define “medical care” for income5 and second, care that “affect[s] any structure or

(d)(9)(B) to permit deductibility if a procedure does not

“meaningfully promote” but does “prevent or treat”; and the

majority evaluates the expenses only under that second prong, to

determine whether the procedures at issue here do “treat”

disease. But see the opinion of Judge Foley, interpreting the

definition in subsection (d)(9)(B) to disallow deductions for

appearance-improving procedures unless a procedure both

“meaningfully promote[s] the proper function of the body” and

“prevent[s] or treat[s]” disease. The majority does not

undertake to demonstrate that SRS “meaningfully promote[s] the

proper function of the body”, and if the statute requires that

both prongs be satisfied, then SRS must therefore be

non-deductible. In this partial dissent, however, I assume

(continued...)

they provide “diagnosis, cure, mitigation, treatment, or

prevention of disease”, as more broadly allowed in (d)(1)(A)).

Two features of this statutory language that are virtually

overlooked in the majority opinion should be noted: First,

section 213(d)(9)(A) disallows deductions for “cosmetic surgery

or other similar procedures”. (Emphasis added.) That is,

expenses for a procedure that falls outside “cosmetic surgery”

(as defined in subsection (d)(9)(B)) may still be disallowed if

the procedure is “similar” to “cosmetic surgery”. Congress thus

enacted this disallowance in such a way that splitting hairs in

order to find a procedure not to be within the specific

definition of “cosmetic surgery” in (d)(9)(B) may not and should

not save the day for its deductibility. Rather, deductibility

must be denied under (d)(9)(A) if the non-“cosmetic surgery”

procedure is nonetheless “similar” to cosmetic surgery.

Second, assuming that subsection (d)(9)(B) permits

deductibility if not both but only one of its prongs is satisfied

(i.e., if a procedure only “prevent[s] or treat[s]”),

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The majority (like the parties) interprets subsection6 it must be

arguendo that only one prong need be satisfied; and I show that

even so, contrary to the majority’s conclusion, SRS does not

“prevent or treat” GID and therefore cannot be deductible even

under the majority’s one-prong analysis.

noted that this second prong in subsection (d)(9)(B) has only two

terms--“prevent” and “treat”--from among the list of five

possible modes of “medical care” in subsection (d)(1)(A). I now

turn to the significance of that wording.

B. The different terminology of subsections (d)(1)(A) and

(d)(9)(B)

As is noted above, “medical care” is defined in subsection

(d)(1)(A) by five terms--i.e., “diagnosis, cure, mitigation,

treatment, or prevention”. Some of these terms do have some

overlapping shades of meaning, and it seems likely that when this

“medical care” deduction was first enacted in 1942, Congress

simply intended to enact a broad definition of medical care and

therefore chose terms to convey that breadth, without particular

intention about the potential distinctive meanings of those

terms. The distinctive meanings would have been irrelevant under

the general provision that allowed the deduction if any of these

modes of care was provided. That is, if a medical procedure was

a “treatment” but not a “mitigation”, or was a “mitigation” but

not a “treatment”, the expense would be deductible nonetheless

under section 213(d)(1)(A).

However, we consider here the very different and specific

congressional intent 48 years later in 1990, when Congress

enacted subsection (d)(9) to disallow deductions for cosmetic

- 128 -

surgery. Congress provided an exception to this new

disallowance, and allowed a deduction in the case of an otherwise

cosmetic procedure, if it “prevent[s] or treat[s] illness or

disease”. Sec. 213(d)(9)(B) (emphasis added). According to this

subsection, an otherwise cosmetic procedure will yield a

deduction if it “prevent[s] or treat[s]” disease--i.e., two modes

of care. Missing from this short list of deductible modes of

care in subsection (d)(9)(B), as we have already noted, are three

of the five terms in subsection (d)(1)(A), including

“mitigation”. The 1990 Congress was thus undertaking to provide

a limited exception to its new disallowance, and in so doing it

was selective in choosing from the vocabulary at hand. Under the

wording Congress adopted, if an otherwise cosmetic procedure

“mitigates” a disease but cannot be said to “treat” or “prevent”

it, then under the plain terms of the statute, one would have to

conclude that the expense of that procedure is non-deductible.

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

section 213(d)(9)(A) is equivalent to, or is shorthand for,

“diagnos[e], cure, mitigat[e], treat[], or prevent[]” in

- 129 -

(...continued)

213(d)(9)(B) is apparently not significant, because of the

relationship of “treat” and “cure”. “Treat” is a broader word

that includes “cure”. That is, although not everything that

“treats” a disease undertakes to “cure” it, any procedure that

does “cure” a disease necessarily “treats” it.

subsection (d)(1)(A) and that no narrow meaning should be

ascribed to “treat”. Admittedly, it is possible to use the word

“treat” in a loose manner that could include merely ameliorating

the effects of a disease. In that loose sense, one could say

that SRS “treats” GID by mitigating the unhappiness of the

sufferer. “Treatment” and “mitigation” do appear side by side as

modes of “care” in (d)(1)(A), reflecting different shades of

meaning of the more general word “care”; and thus to some extent

they are synonymous. If they were such close synonyms as to be

equivalent in meaning (or if “treat” included “mitigate”

the absence of “mitigate” in (d)(9)(B) would not be significant.

However, ascribing this broad or loose meaning to “treat * * *

disease” is untenable under section 213, where “treat” must be

distinguished from “mitigate”, and where the direct object is

“disease” (not “patient” or “symptom”), as I now show.

A. To yield a deduction, an appearance-improving procedure

must “treat” disease (as opposed to effecting

“mitigation”).

Subsection (d)(9)(B) does not provide that appearanceimproving

procedures are deductible if they “prevent, treat, or

mitigate” a disease, but rather if they “prevent or treat”

disease. The majority’s leading definition of “treat”, majority

op. p. 49, taken from Webster’s New Universal Unabridged

- 130 -

Dictionary (2003), is “to deal with (a disease, patient, etc.) in

order to relieve or cure”; and the same dictionary’s definition

of “mitigate” is--

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--

- 131 -

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.]

When “treat” and “mitigate” are distinguished, rather than being

blended, “treatment” addresses underlying causes and “mitigation”

lessens effects. I conclude that this distinction between

“treat” and “mitigate” is critical to determining whether SRS

“treats” GID, so as to render SRS expenses deductible.

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 section

213(d)(9)(B), the object of the verb “treat” is “disease”. The

breadth of the dictionary definitions cited by the majority,

majority op. p. 49, is attributable in part to the fact that one

may “treat” a disease, or a patient, or a symptom. Consequently,

a general definition of “treat” that is not confined--as section

213 is confined--to treatment of a disease should and will

reflect shades of meaning appropriate for treatment of symptoms,

which shades of meaning overlap more with “mitigate”. For that

reason these general dictionary definitions are not very

illuminating in this instance, where the question is whether to

“treat” disease is or is not the same as to “mitigate” disease.

As a part of “medical care”, one could “treat” a patient

with palliative care or could “treat” his painful symptoms with

- 132 -

By way of comparison, the absence of “cure” from section7), then

5214(a)(3)(D); 10 U.S.C. sec. 1077 (2006); 21 U.S.C. sec. 802

(2006); 22 U.S.C. sec. 2151b-3 (2006); 24 U.S.C. sec. 225g

(2006); 38 U.S.C. secs. 1706, 1718, 7332 (2006); 42 U.S.C. secs.

238b, 256e, 280e, 280g-6, 280h-3, 290dd-2, 291o, 300d-41, 1320b-8

(2006).

See sec. 168(i)(2)(C) (emphasis added); see also sec.

see also 8 U.S.C. secs. 1613, 1621, 1632 (2006); 42 U.S.C. secs.

285o-4(d), 300cc-3, 1395i-3, 1396r (2006). Focusing on treatment

of symptoms, Judge Halpern emphasizes, Halpern op. pp. 72-73

(emphasis added), that petitioner’s expert pronounced petitioner

“cured” (even though petitioner’s belief about her sex was

unchanged) in the sense that “the symptoms of the disorder were

no longer present”, e.g., “she had been free for a long time of

clinically significant distress or impairment”; and Judge Halpern

equates a removal of symptoms with a “cure” of the disease (and

therefore a “treatment” of the disease), Halpern op. pp. 73-74.

However, when treatment of symptoms makes a psychiatric patient

content with his delusion, he has not been cured, and his

“disease” has not been “treat[ed]” for purposes of section

213(d)(9)(B).

morphine (both of which could also be said to “mitigate”, and the

expenses of which would be deductible under section 213(a))--all

the while leaving his disease un-“treated”, strictly speaking.

When Congress intends to enact a provision that turns on

“treatment of patients”

how to do so; but it did not do so in section 213(d)(9)(B), which

allows deductions for procedures that “treat * * * disease”.

(Emphasis added.) If a procedure is said to “treat * * *

disease”, then “the treatment [will] bear directly on the * * *

condition in question”, Havey v. Commissioner, supra at 412, or

will “deal with” the disease (as in Webster’s). Other medical

care may be “mitigation”, but not “treatment”.

In defining “cosmetic surgery”, Congress aimed to deny

deductions that had previously been allowed. If in the amended

- 133 -

See 8 U.S.C. sec. 1611(b)(1)(C) (2006) (emphasis added);8 or on “treatment of symptoms”,9 it knows

576-582 (Body Dysmorphic Disorder (BDD)) (4th ed., text revision

2000) (DSM-IV-TR): “The essential feature of Body Dysmorphic

Disorder (historically known as dysmorphophobia) is a

preoccupation with a defect in appearance * * *. The defect is

either imagined, or, if a slight physical anomaly is present, the

individual’s concern is markedly excessive * * *. The preoccupation

must cause significant distress or impairment in social,

occupational, or other important areas of functioning”. The

entry for BDD in DSM-IV-TR is not in the record; but the majority

refers to “DSM-IV-TR, which all three experts agree is the

primary diagnostic tool of American psychiatry”, majority op. p.

41, and states that the U.S. Supreme Court has relied on a

listing in the DSM in treating something as a “serious medical

condition”, majority op. note 40; and I take judicial notice of

the BDD entry. See, e.g., United States v. Long, 562 F.3d 325,

334-335 & n.22 (5th Cir. 2009); United States v. Johnson, 979

F.2d 396, 401 (6th Cir. 1992). Whether BDD is a “disease” and

whether cosmetic surgery purportedly prescribed for it could be

“treat[ment]” under section 213(d)(9)(B) are questions yet to be

litigated--if the majority’s broad interpretation of section

213(d)(9)(B) prevails.

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 subsection (d)(9)(B) treats the statute as if

Congress had enacted that imaginary broader exception, and its

loose interpretation invites arguments for the deduction not only

of GID patients’ SRS expenses but also of the cosmetic surgery

expenses of any psychiatric patient who is (or claims to be)

pathologically unhappy with his body.

did not provide that an appearance-improving procedure will

nonetheless be deductible if it merely “mitigates” a disease.

- 134 -

C. A looser interpretation of “treat * * * disease” is not

warranted in section 213(d)(9)(B).

1. The structure of subsection (d)(9)(B) shows

deliberate restriction in its terminology.

Congress enacted section 213(d)(9) to restrict medical care

deductions by explicitly denying such deductions for cosmetic

surgery and similar procedures. Its terms must be understood by

reference to that announced purpose. Consistent with that

purpose, subsection (d)(9)(B) reflects, as I have shown, a

narrowing of both prongs of the subsection (d)(1)(A) definition

of “medical care”--i.e., subsection (d)(1)(A)’s “affect[] any

structure or function of the body” was narrowed to become

“meaningfully promote the proper function of the body” in

(d)(9)(B); and subsection (d)(1)(A)’s “diagnosis, cure,

mitigation, treatment, or prevention of disease” was narrowed to

become “prevent or treat” disease in (d)(9)(B). Where Congress

was explicitly setting out to shut down deductions for cosmetic

surgery, the restricting language it employed can hardly be taken

as careless or unintentional.

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 subsection (d)(9)(B), the majority

gives short shrift to subsection (d)(9)(A). Subsection (d)(9)(A)

shows the sorts of exceptional procedures for which Congress

meant to preserve deductions--i.e., procedures that are

“necessary to ameliorate a deformity arising from, or directly

- 135 -

related to, a congenital abnormality, a personal injury resulting

from an accident or trauma, or disfiguring disease”--and thus

illuminates the congressional purpose. Someone like petitioner

who suffers from GID has no deformities that are addressed by

SRS; he has no “congenital abnormality”; he has suffered no

“accident or trauma, or disfiguring disease.” There is thus no

indication that Congress explicitly intended to carve out, from

its new disallowance, an exception that would reach SRS expenses.

The wording choices in the statute that limit deductibility must

be taken at face value in order to vindicate the undisputed

congressional purpose.

The majority not only ignores those implications of

subsection (d)(9)(A) for the purpose of the statute but also

renders much of (d)(9)(A) surplusage by its unduly loose

interpretation of subsection (d)(9)(B). Subsection (d)(9)(A)

provides that even if a procedure is “cosmetic surgery” (as

defined in (d)(9)(B)), its expenses will be deductible if (inter

alia) the procedure “ameliorate[s] a deformity arising from, or

directly related to, * * * disfiguring disease.” However, if

surgical procedures that mitigate the effects of disease thereby

fall outside the definition of “cosmetic surgery” (i.e., because

they are deemed to “treat disease” in the broad sense), then

subsection (d)(9)(A) would describe an empty set when it refers

to “cosmetic surgery” that “ameliorate[s] a deformity arising

from * * * disfiguring disease.” If the procedure

“ameliorate[s]”, and if to ameliorate is to “treat”, then the

- 136 -

procedure would not be “cosmetic surgery” in the first place.

Anything that “ameliorates” would be deductible because of the

definition in (d)(9)(B), and the allowance in (d)(9)(A) would

have no effect.

On the other hand, if “treat * * * disease” in

subsection (d)(9)(B) is given its precise meaning (not excluding

from “cosmetic surgery” a procedure that only mitigates the

effects of disease), then (d)(9)(A) would operate to allow a

deduction for cosmetic surgery that does not “treat” a

disfiguring disease but rather ameliorates deformities arising

from it. Thus, only the precise meaning of “treat disease” in

(d)(9)(B) harmonizes with the allowance in (d)(9)(A).

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. 36, 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, or the disease that

is being addressed; in section 213(d), however, “care” is a

general term of which “treatment” is a mode distinct from

“mitigation”, and deductible care is directed to “disease” (or

- 137 -

“illness”), not to the patient or her symptoms. There is thus no

indication that doctors’ usage of these words respects the

distinctions that are important in section 213.

With the foregoing understanding of the purpose and

operation of section 213(d)(9), I now address the question

whether SRS “treats” GID.

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-

138 -

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 disordered feeling that he is

female. The majority concludes, majority op. p. 67 (emphasis

added), that GID is a “serious mental disorder”--i.e., a disease

in petitioner’s mind--and I accept that conclusion.

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.

- 139 -

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 section 213(d)(9)(A),

and the expense that petitioner incurred for that surgery is not

deductible under section 213(a).

WELLS, FOLEY, VASQUEZ, and KROUPA, JJ., agree with this

concurring in part and dissenting in part opinion.

See Diagnostic and Statistical Manual of Mental Disorders10 In any event, Congress

deduction for an individual retirement account contribution, and

respondent concedes that petitioner is entitled to deduct

$1,369.59 as medical expenses under sec. 213.

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