O'Donnabhain Trial Wrap Up

What a week.

Yesterday was the final day of trial (for a while) in GLAD’s case representing Rhiannon O’Donnabhain in U.S. Tax Court. And that has meant that for the first time ever in tax court there was a rich and full discussion about transgender identities.

At the heart of the case is the question of whether one transgender woman will be guaranteed equal treatment by the Internal Revenue Service. But this case goes beyond Rhiannon as an individual. Having a court consider the experience of one trans woman has been an important opportunity to show the pervasive discrimination that transgender people face every day.

On Tuesday, the first day of the trial, we heard from three fact witnesses. Rhiannon and two of her primary health care providers testified to a courtroom packed with local and national media, students, supporters, and government officials. The focus of the day was Rhiannon’s personal story, what she’s gone through, and what it feels like to live as a trans woman in the world.

We heard expert testimony on the second and third days. Through this testimony both parties developed more fully what individuals with expertise in the area understand about what it means to be transgender.

One of the striking things about the trial was the level of discussion about trans identities, and about how trans people live in and experience the world. People in the courtroom seemed moved by the discussion. It’s hard to imagine that anyone left without a richer understanding of transgender people’s lives.

The trial will continue August 23, with testimony from the government’s second and final expert witness, followed by closing statements from both parties.

More press coverage: Bay Windows, Congressional Quarterly and In Newsweekly, including a profile of Rhiannon O'Donnabhain.

Wednesday Update in O'Donnabhain Trial

On Wednesday, expert Dr. George Brown testified. He was questioned by GLAD attorney Bennett Klein and cross-examined by IRS counsel.

Bay Windows' Ethan Jacobs filed this article on trial proceedings on Tuesday and Wednesday.

Jeremiah Coder covered Tuesday's proceedings for Tax Analysts. You can read his article here.

Press Coverage of Trial, Day One

Scott Malone filed this article for Reuters on the first day of the trial.

In Newsweekly has this story on the case.

You can also listen to an interview with GLAD Attorney Jennifer Levi on the Human Rights Campaign's radio show The Agenda (recorded Monday night).

Opening Statement in Trans Medical Deduction Denial Case

Attorney Karen Loewy delivered GLAD's opening statement this morning in O'Donnabhain v. Commissioner of Internal Revenue:

"Rhiannon O'Donnabhain is entitled to a deduction for her expenses as medical care under section 213 of the Internal Revenue code because she was diagnosed by a qualified mental health practitioner with a medical condition recognized by the medical community, and she pursued a course of treatment for that condition."

Read the full text of the opening statement here.

O’Donnabhain v. Commissioner of Internal Revenue Trial Begins

GLAD Attorney Jennifer Levi (left), Rhiannon O'Donnabhain (center), and GLAD Attorney Karen Loewy prepare for court on the first day of the trial

Interview with GLAD Attorney on IRS Trans Medical Deduction Denial Case

GLAD goes to trial in U.S. Tax Court tomorrow (July 24) on behalf of Rhiannon O'Donnabhain, who is challenging the IRS' decision to deny her a tax deduction for her sex reassignment surgery. (More background on this story here).

Senior Staff Attorney Jennifer Levi (left), a member of the GLAD team representing Rhiannon, talked with us about the importance of the case.

What is this case about?

Jennifer Levi (JL): In this case, the IRS denied a tax deduction for a transsexual woman who deducted medical expenses relating to her transition.

Why did the IRS deny her deduction?

JL: The position that the IRS has taken is that the surgeries that Rhiannon had were “cosmetic.” And what that means is that they’re insignificant--they’re just about trying to look better. And these weren’t about “looking better.” They were about transition. They were about being able to, not just transform the way she looked, but the way she felt, and the way that she was able to present her gender in the world. To trivialize this kind of surgical procedure, and to compare it to something like a nose job, is demeaning. And really centrally misses the basic point of transgender identity.

So you think that the IRS’s decision shows an underlying bias against trans people?

JL: Absolutely. We think it shows bias at worst, and a gross misunderstanding at best.

Why should Rhiannon have been able to deduct the surgery as a medical expense?

JL: The Internal Revenue Code allows deductions for expenses relating to medical care. The entire reason Rhiannon sought psychotherapy--and eventually hormones and surgery for the feelings that she had about being female--was medical. She was diagnosed with Gender Identity Disorder (GID), as recognized in the DSM IV, in the World Health Organization’s ICD-10, and in every major textbook and medical dictionary that addresses issues relating to mental health.

There’s just no real question that for some people whose gender identity doesn’t match their sex, that experience causes very serious anxiety, distress, sadness, and depression. And people should have access to medical care.

There’s an established course of treatment Rhiannon followed that clearly meets the statutory definition for medical care. All we have to show in this case is that the procedures she underwent were medical in nature. To suggest that they’re not is really to call into question the legitimacy of that experience of dysphoria.

Why is this case important?

JL: It’s important because it addresses pervasive misunderstandings, pervasive bias, pervasive prejudice that transgender people face. There is a lot of misinformation that underlies the discrimination that transgender people face in many areas of their lives.

What we’ve found in the context of this case is that most people really do see through what the IRS has said. People understand that if you wake up every day and you look in the mirror and the person that you see is not the person you feel like you are, that’s an uncomfortable experience at best, and disorienting and disabling at worst. Fair-minded people understand that individuals should be able to take steps to change that experience and integrate their lives more fully in order to be who they are--in order to wake up every day and see the person in the mirror that they feel themselves to be. And that when somebody does that, they shouldn’t be fired from their jobs, they shouldn’t be beaten up on the streets, they shouldn’t be denied equal treatment that other Americans receive under something as basic as the tax code.

Rhiannon’s experience is one piece of the experience of transgender people. Not everybody has the same interest in transitioning medically. Not everyone can afford to, and not everyone would want to. But this is an important case for the entire community. And that’s because what’s really at the heart of this case is a central misunderstanding about the importance of being able to express one’s gender identity. Everybody should be able to do that.

New Mexico Same-Sex Couples Can Marry in MA

Because New Mexico’s laws do not prohibit marriage between parties of the same gender, there is no impediment to New Mexico same-sex couples marrying in Massachusetts (see www.glad.org for information about the 2006 MA SJC decision that led to this conclusion).

Yesterday, July 18, The Commonwealth of Massachusetts, via the Department of Public Health and Registry of Vital Records and Statistics, issued a corrective notice to all Massachusetts city and town clerks authorizing them to allow same-sex couples from New Mexico to apply for marriage licenses.

GLAD has two publications of interest to New Mexico same-sex couples considering marriage:

How to Marry in Massachusetts

and, for New Mexico couples who previously married in Massachusetts and are now wondering about the legal status of that marriage, Legal Issues for Non-Massachusetts Same-Sex Couples Who Married in Massachusetts.

Dignity, Respect, and Equal Treatment

Beginning next Tuesday, GLAD will be in U.S. Tax Court challenging the IRS' denial of sex reassignment surgery to treat Gender Identity Disorder (GID) as a deductible medical expense. GLAD is representing Rhiannon O'Donnabhain, who underwent the professionally prescribed procedure in 2001, after spending years in anguish attempting to live as a man and eventually being diagnosed with GID in 1996.

Every mainstream medical authority from the American Psychiatric Association to the National Institutes of Health recognizes GID as a medical condition. Rhiannon's health care providers say that the treatment was critical to her mental health and ability to function at all levels.

And yet the IRS has refused the medical deduction - a deduction that would be available for an appendectomy, or bypass surgery - claiming that sex reassignment surgery is "cosmetic."

The underlying principal in this case is that transgender people deserve dignity, respect and equal treatment for their medical care.

More on this story at www.glad.org

Equal Marriage is the Law in Massachusetts

You've no doubt heard about the MA bar association applicant who is suing because he claims a question on the test involving the marriage of a same-sex couple violated his right to exercise his religion. He's also claiming that his refusal to answer said question is what kept him from making a (barely) passing score on the exam.

Alot has been said already about this case (you can read more about it here, and here, and here, for instance), and we don't want to give this frivolous case much more airtime.

Other than to point out the obvious - the bar exam is a test of the applicant's knowledge of the law. And in Massachusetts, the law is equal marriage.

More Trouble with NJ Civil Unions

Marriage Equailty Rhode Island writes today about another instance of a New Jersey couple being denied benefits under the state's civil union law. As reported in the Star Ledger, the multi-state company UPS makes it explicit that they don't believe an employee's civil union compels them to offer health insurance for the employee's partner, although they do offer coverage to same-sex spouses of Massachusetts employees. According to a letter employee Gabriael Brazier received from UPS, in creating civil unions the New Jersey Legislature

“did not go as far as Massachusetts and afford same-sex couples the ability to marry. Had the New Jersey Legislature done that, you could have added Ms. Aurand as a spouse under the plan.”

Yet another example of how civil unions are not equality.

The Sky Isn't Falling, Says Post

Another excellent point in today's Washington Post:

"When the high court of Massachusetts ruled in 2003 that the commonwealth's constitution gave same-sex couples the right to marry, detractors railed against "activist judges" who were "imposing" their will on the people. Only the people, through their elected representatives, should decide something so fundamental, they said. Thus began an effort to amend Massachusetts's constitution by referendum to define marriage as a union between a man and a woman. Four years and about 10,000 same-sex marriages later, here's what the people have said: never mind."

That's exactly what happened a few weeks ago when opponents of equality failed to get the 50 votes needed in the legislature to move forward a ballot initiative to ban legal rights and recognition for lesbian and gay couples.

It's heartening (though not surprising) to see how the experience of witnessing lesbian and gay couples and families go about their lives with the recognition and protections of civil marriage has changed the view of many citizens and legislators in this state. People have realized what we've known all along - allowing all loving, committed couples access to equal marriage does not hurt the commonwealth, the society, or the institution of marriage in any way. If anything, it enriches it.

The rest of the nation can now take a good look at Massachusetts and see that, in the words of the Washington Post, "the sky isn't falling."

Trouble with Civil Unions

The Washington Post reported on Saturday that some couples in New Jersey who have registered for civil unions since they became available four months ago are still being denied the rights and benefits the law was intended to grant them.

The article tells of Craig Ross and Richard Cash. Despite their civil union, Ross's employer of 21 years is refusing to provide health insurance coverage for Cash. The company has a self-funded insurance plan, and claims - as have other employers - that federal regulations therefore allow them to ignore state laws regarding employee benefits.

The federal Defense of Marriage Act is often cited by companies like Ross's as justification for denying benefits to the partners of employees even when they are legally recognized by the state.

Ross and Cash are not alone. According to the Post, "A recent study by Garden State Equality, New Jersey's leading gay advocacy group, indicated that as many as one in eight of the 1,092 same-sex couples who have registered for civil unions there have been denied all or part of the benefits they hoped to gain from the law."

This is an excellent example of why civil unions are not an adequate substitute for equal marriage, as they are clearly considered to be less than marriage by some employers (not to mention the federal government).