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. 74. Apparently, the majority is preparing for a perhaps different view of the statute by the Court of Appeals. Judge Holmes' Brandeis brief 11 exhibits impressive scholarship, 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. 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. 11 A Brandeis brief is: 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 tenhour workday for women. Black's Law Dictionary 213 (9th ed. 2009); see Snyder v. Commissioner, 93 T.C. 529, 533–534 (1989). I. A. What does it mean for a person born male to testify, as did O'Donnabhain, that “I was a female. The only way for me to the only way for me to be the real person that I was in my mind was to have this surgery"? This is not like saying “Lab tests show Vibrio cholerae, and therefore I have cholera”, or “the X-ray shows a tumor in the lung and therefore I have lung cancer", or even "the patient reports that he is Napoleon and is being chased by the English", and therefore has schizophrenia. In the crash course on transsexualism that this case has forced on us, there are at least four approaches that those who've studied the phenomenon of such feelings have had. One response, curtly dismissed by the majority, is that this is a form of delusion: It is not obvious how this patient's feeling that he is a woman trapped in a man's body differs from the feeling of a patient with anorexia nervosa that she is obese despite her emaciated, cachectic state. We don't do liposuction on anorexics. Why amputate the genitals of these poor men? Surely, the fault is in the mind and not the member. McHugh, "Psychiatric Misadventures", Am. Scholar 497, 503 (1992). For such psychiatrists, gender follows sex, is a fundamental part of human nature, and is not easily amenable to change. Those who take this view look at transsexual persons to uncover what they suspect are comorbidities-other things wrong with their patients that might explain the undoubtedly powerful feeling that they are wrongly sexed and whose treatment might alleviate the stress that it causes them. A second approach focuses on the notion of "feeling female." What does this mean? The answer adopted by the majority and urged by O'Donnabhain is that this is a shorthand way of saying that a transsexual person's gender (i.e., characteristic way of feeling or behaving, and conventionally labeled either masculine or feminine) is strongly perceived by her as mismatched to her sex (i.e., biological characteristics). 1 This, too, is highly contested territory-gender being 1 For a longer discussion on the definitions of gender versus sex, see Meyer, "The Theory of 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-toFemale Transsexualism," 14 Archives Sexual Behav. 247 (1985); Cohen-Kettenis & Gooren, "Transsexualism: A Review of Etiology, Diagnosis and Treatment," 46 J. Psychosomatic Res. 315, 321-22 (1999) (summarizing research); Lawrence, “Clinical and Theoretical Parallels Between Desire for Limb Amputation and Gender Identity Disorder," 35 Archives Sexual Behav. 263 (2006). Scholars of this school regard SRS as justified-not so much to cure a disease, but because SRS relieves suffering from an intense, innate, fixed, but otherwise unobtainable desire. See, e.g., Dreger, "The Controversy Surrounding The Man Who Would Be Queen: A Case History of the Politics of Science, Identity, and Sex in the Internet Age," 37 Archives Sexual Behav. 366, 383–84 (2008). These are all intensely contested viewpoints. The fourth and currently predominant view among those professionally involved in the field is the one urged by O'Donnabhain, and 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 sense of maleness or femaleness or a conviction that one is male or female. While gender is 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.") 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. B. The majority relies heavily on the Benjamin standards to establish the proper diagnosis and treatment of GID. I certainly agree that these standards express the consensus of WPATH-the organization that wrote them and has seen six revisions of them over the last 30 years. But the consensus of WPATH is not necessarily the consensus of the entire medical community. The membership of WPATH is limited, consisting of professionals that work with transsexual patients, including social workers, psychiatrists, and surgeons that perform SRS. The Commissioner's expert, Dr. Schmidt, testified that the Benjamin standards are merely guidelines rather than true standards of care and that they enjoy only limited acceptance in American medicine generally. The majority cites several psychiatric textbooks that mention the Benjamin standards to refute Dr. Schmidt's claim and as evidence of their general acceptance in the psychiatric profession. Majority op. note 45. But the textbooks treat the Benjamin standards as mere guidelines—which may or may not be followed-rather than clearly endorsing SRS. Let's take a closer look at the excerpted language from each of the majority's sources: • "[The Benjamin standards] [provide] a valuable guide;" • “[T]he patient may be considered for surgical reassignment;" • "The [Benjamin standards of care] programme includes *** possibly sex reassignment * * * patients * * * can be referred for surgery;" • "[S]ex reassignment may be the best solution;" and • After noting that the treatment of gender identity disorders is "not as well-based on scientific evidence as some psychiatric disorders," the cited text states that "[l]iving in the aspired-to gender role *** enables one of three decisions: to abandon the quest, to simply live in this new role, or to proceed with breast or genital surgery." See majority op. note 45 (all emphasis added and citations omitted). The textbooks do not say that SRS "should" or "must" be used as treatment for GID, but only that it "may" or “can” be used. The members of WPATH certainly follow the Benjamin standards, but since they are merely a “guide” and "not as well-based on scientific evidence" as other psychiatric treatments, their general acceptance is questionable. The American Psychiatric Association's practice guidelines-generally accepted standards of care-make no mention of the Benjamin standards. 2 Even the Benjamin standards themselves contain the following caveat in the introduction: All readers should be aware of the limitations of knowledge in this area and of the hope that some of the clinical uncertainties will be resolved in the future through scientific investigation. The Harry Benjamin International Gender Dysphoria Association's Standards of Care for Gender Identity Disorders, Sixth Version 1 (2001). WPATH is also quite candid that it is an advocate for transsexual persons, and not just interested in studying or treating them. Its website includes a downloadable statement that can be sent to insurers or government agencies denying reimbursement or payment for surgery to those diagnosed with GID. WPATH, "WPATH Clarification on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage in the U.S.A.,' (June 17, 2008), available at http:// www.tgender.net/taw/WPATHMedNecofSRS.pdf (last visited http://www.psych.org/MainMenu/PsychiatricPractice/ 2 See APA, Practice Guidelines, PracticeGuidelines_1.aspx (last visited Jan. 7, 2010). |