A Really Great Dad: Improving Legal Advocacy for Transgender Parents

Editor’s Note: June 1 is the 7^th Annual Blogging for LGBT Families Day, a tradition aimed at showing support for our families in the blogosphere brought to you by Mombian.com, one of our favorite LGBT parenting blogs. Please enjoy our submission by Liz Monnin-Browder, a former GLAD attorney and co-editor of our groundbreaking new publication, Transgender Family Law: A Guide to Effective Advocacy.

It was a prime example of serendipity. A few weeks ago, on the day that I saw the book TransgenderFamily Law: A Guide to Effective Advocacy in print for the first time, I received an email from a soon-to-be new dad who is a transgender man. He emailed to ask me for advice about what he should do to safeguard his parental relationship with his unborn child.

He gave me permission to share part of his email for this blog post:

“I think that the potential exists for my wife’s family to challenge my parentage should anything happen to her. I have found a family law attorney with experience in gay and lesbian law, but, as far as I can tell, I will be her first trans client. I know that you worked on family law cases at GLAD, and I was wondering if you could direct me to any written resources with which I could provide this attorney.”

As a new parent myself (my daughter is 11 months old), I was struck that this soon-to-be new dad not only needed to figure out which brand of car seat to buy and how many diapers to stock up on, but that he also needed to prepare for the arrival of his baby by retaining legal counsel and searching for resources to educate his attorney.

And he is wise to do so. He is married to his wife, and they are bringing this baby into the world together as their child.

But if something happened to his wife, his parentage – the fact that he is this baby’s father – could be challenged. The outcome would depend on the relevant state’s law and the judge’s familiarity with transgender people and respect for the legitimacy of their family.

So he is already being a really great dad by seeking information about what to do now to protect his legal parent-child relationship with his baby, even before the baby’s birth.

This is just one story that illustrates why we need Transgender Family Law: A Guide to Effective Advocacy, the first book to comprehensively address family law issues for transgender people and their families. Each chapter – penned by experts from across the country – covers a different area of family law so transgender people and their attorneys can pick and choose to read the parts that apply to their situation. There are also useful sample documents in the appendix. We intended for it to be a practical, user-friendly resource.  I was so grateful to have this resource to share with the soon-to-be new dad for him to provide to his attorney.

Please join us in spreading the word about this book. We want as many transgender people and as many family law and estate-planning attorneys as possible to know about this resource. We want more families to be able to protect their families without ever having to go to court, and we want more families to achieve positive outcomes in the courts so that we can change the course of bad case law and make more good case law for transgender people and their families. 

Dignity, Respect, and Equal Treatment (O'Donnabhain Trial Concludes)

Trial ended today in Rhiannon O'Donnabhain's challenge of the IRS over their refusal to allow her a tax deduction for the costs of her treatment for Gender Identity Disorder. The IRS presented testimony from a final expert witness and both sides made their closing arguments.

Both parties will next file briefs with the court on November 6. Following that, each side will have seventy-five days to file a response brief (due January 21, 2008), after which the judge will issue a decision.

At the conclusion of today's trial proceedings, Rhiannon O'Donnabhain issued the following statement:

"I'm glad to have had the opportunity to tell my story and it was important for me personally, as a citizen and tax-payer, to have my day in court.

It also was important for the transgender community, my community, to speak in an official forum about what it means to be a transgender person living in this country.

I hope that this case sends a clear message that transgender people deserve dignity, respect, and equal treatment not just for our medical care, but in all aspects of our lives - just as every human being deserves dignity, respect and equal treatment.

I also hope that this case addresses some of the misunderstanding, bias, and prejudice transgender people face in our lives every day. Because what's really at the heart of this case - and my story - is a basic misunderstanding about the critical importance of being able to express my gender identity. It's something everyone should be able to do."

O'Donnabhain Tax Trial Resumes Thursday

The potentially precedent-setting trial, O’Donnabhain v. Commissioner of Internal Revenue, resumes this Thursday, August 23, in Boston.

Rhiannon O'Donnabhain, represented by GLAD, is challenging the IRS over their refusal to allow her a tax deduction for sex reassignment surgery related to her treatment for Gender Identity Disorder.

The trial began on July 23 and recessed on July 27. On Thursday, the IRS will present their final expert witness, and both sides will make closing statements.

Check back here later this week for a post-trial wrap-up.

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.

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).

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.

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.

Fighting for Dignity and Respect

Take a look at more photos from the day

After yesterday's oral argument at the Connecticut Supreme Court, GLAD Attorney Ben Klein and the eight plaintiff couples in the case participated in a press conference on the courthouse steps.

Ben opened by saying: "Today the plaintiffs argued for the right to the same treatment and dignity that all other families get. Under the Connecticut constitution, we believe that they are entitled to the same respect and dignity of any other couple."

Lead plaintiffs Beth Kerrigan and Jody Mock then took the microphone to explain how important it is to them and their children to be able to say that they are married, and how heartened they were to hear one of the Justices bring up that point in court. "We have five year old boys in kindergarten, and they always ask us 'are you married?' And it breaks our heart to have to say the truth, which is that we're not. But we're fighting for that."

12:59

In closing, Ben focused his argument on the fact that marriage is more than the sum of all the tangible rights and benefits associated with the word “marriage.” Rather, the ability to say that you are married is one of the benefits of marriage. There is no adjective or verb associated with the word “civil union” and gay and lesbian couples and families deserve a legal status that let’s them convey to the world that they have access to the same level of equality enjoyed by CT’s other citizens.

Ben also rebutted the state’s argument that the legislature could have rationally believed that civil unions are better because they are more likely to be granted recognition in other states. Ben said that the premise was all wrong. Only a few states have civil unions but all states have marriage recognition laws. No one can prejudge whether a marriage will be respected in whole or in part because the outcome of a marriage recognition analysis might turn on what aspect of marriage someone needs to have recognized, as well as potentially competing public policies. For example, a state may respect a marriage to enforce child support obligations arising from a marriage because the state policy of protecting children surmounts any competing public policy.

12:55

After Ben's return to the podium, Justice Borden revisited the issue of whether the plaintiffs should be considered a suspect class or a quasi-suspect class. Are gays and lesbians politically powerless now? Or do we look at whether they historically have been politically powerless? What lens do we look at in applying that part of the test?

Ben responded that, to answer this, the Court has to look through an historical lens, to reflect the reality that systemic discrimination does not appear in a short timeframe. And also a national lens, because Connecticut citizens are affected by what happens nationally. There have been gains, but gays and lesbians as a group are still subject to the control of the majority, and there is still inequality.

12:43

Attorney Judith Ravel, representing Dorothy Bean, the town clerk who refused to issue marriage licenses to the plaintiff couples, gave a brief statement for her client. Mrs. Bean, she said, did the only thing she could do, which is to follow the instructions of the attorney general.

The Justices didn't question her.

Still, she said with emphasis, "Mrs. Bean got served, and she didn't like it."

12:40

Rosenberg rounded out her statement by saying that changing the defintion of marriage in the state of Connecticut should be a matter for the Legislature.

12:40

Rosenberg advanced several arguments about why limiting marriage to different-sex couples related to a rational state interest, including maintaining the traditional meaning of marriage, promoting consitency with the laws of other states, the possibility that the rights associated with civil union will be recognized by states prohibiting marriage for same-sex couples.

Justice Borden asked whether the state relies at all on the "responsible procreation" argument; Rosenberg responded that although amici raised that argument, the state doesn't rest on it.

Rosenberg began her conclusion by stating that marriage is not a matter of constitutional law for the court to decide; rather, it's a legislative matter that should be decided by the people.

Justice Borden wondered about the analysis applied to the Virginia Military Institute case; Justice Norcott identified it as the McLaurin analysis, which may fall somewhere in between an intermediate analysis and strict scrutiny.

Justice Borden continued to ask whether Rosenberg thought it was important for all children, including the children of same-sex couples, to say that their parents are married. He also asserted that there is a good amount of evidence pointing to the equal parenting abilities of same-sex and different-sex couples.

In response, Rosenberg revisited her idea that the plaintiffs' feelings about the word marriage - valid as they may be - didn't lend themselves to a legal argument, and that that may be an issue for the Legislature.

12:20

Rosenberg resumed her remarks by arguing that rational basis--the "model of judicial restraint"--is the appropriate standard in this case.

Justice Borden, who had a similar dialogue with Ben, asked Rosenberg how she would balance between the Glucksberg cautionary tale (against overly broad definitions of marriage) and Lawrence's cautionary tale (against overly narrow defnitions of marriage).

Rosenberg responded that this case will change the definition of marriage in a radically different way than either of those cases.

Borden led Rosenberg to a discussion of the idea that, even in Goodridge, Justice Marshall acknowledged that the Massachusetts Supreme Judicial Court acknowledged that it was, in fact, changing the defnition of marriage.

12:00

The Justices adjourned for their morning recess.

Just before leaving, they questioned Rosenberg about the level of scrutiny required for a suspect class argument, which she identified as strict scrutiny. But she maintained that the case was not about sexual orientation discrimination, since nothing prohibits gay men and lesbians from marrying a member of the opposite sex--they just choose not to do so.

Justice Borden questioned whether that was a realistic argument, if sexual orientation is a central part of their identity. And Justice Palmer, clearly troubled by the logic, responded that he thought it was a facile approach to a suspect class claim.

11:50

The justices began their questioning of Rosenberg by asking about the harms caused by marriage inequality. How, asked Justice Palmer, does the difference between civil union and marriage not stigmatize those relagated to civil unions? Appellate Judge Harper asked about how the denial of a marriage licence does not count as a constitutional harm.

Rosenberg maintained that, although she respects the plaintiff couples' feelings that they are stigmatized by not having access to marriage, those feelings do not go to the legal question at hand, i.e., whether the Legislature is required to use the word "marriage." She continued to say that there is nothing in the civil union law that is intended as derogatory for same-sex couples, and in fact civil unions indicate a step forward.

Justice Palmer asked if this "step forward" is the reason the defendants claim the plaintiffs can't satisfy the "political powerlessness" component of a suspect class argument. Justice Norcott interjected that, "if gay and lesbian folks in Connecticut had true political power, they'd have passed the bill across the street (in the legislative building), and we wouldn't be here."

11:35

The justices continued their rigorous questioning to Ben about the standard of scrutiny required by plaintiff's claims, based on being members of a suspect class (status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny).

Attorney Jane Rosenberg, assistant attorney general for the state began her opening statement on behalf of two defendants, the commissioner of the Department of Public Health, and the Department of Public Health. She began by talking about how Connecticut has been a leader in promoting civil rights, and stated that, after granting the rights and benefits of marriage to same-sex couples under a different name, the question remaining for the Court is "what's left?"

11:00

Borden asked about the argument of marriage as a "fundamental right."

Judge Harper asked if the plaintiffs differentiate the fundamental right to marriage and the right to marriage for same-sex couples.

Ben responded that there is no fundamental right to same-sex marriage; the plaintiffs seek the fundamental right to marriage.

Judge Harper responded that same-sex couples are not precluded from marriage, only precluded from same-sex marriage.

Ben argued that defining marriage as only between a man and a woman simply because it's always been between a man an a woman, is circular reasoning. You determine the right to marry by the attributes of that right, not by a traditional definition. The fundamental nature of the right is not dependent upon the gender of the two parties; it's the relationship of two legal equals by mutual consent, taking responsibility for each other, and protected by the state. As in Griswold, same-sex couples have the same interests in entering into those loving bonds that different-sex couples do.

10:40

Justice Borden suggested that civil unions are inclusive, rather than exclusive, in that they grant rights and privileges of a status that did not exist before.

Ben acknowledged that civil unions are a step forward, but that they don't comport with equality under the Connecticut constitution. The Court's role, Ben argued, is to figure out whether the Legislature drew the line in the right place, cutting same-sex couples off short of full marriage.

Borden refocused his questioning on the argument that civil unions are unconstitutional. The premise of cases the plaintiff's cite, such as Plessy v. Ferguson, was based on race. Analogies to those cases have to rest on an underlying premise that there is an illegal classification.

Ben responded that the classifications in the case are both sex and sexual orientation. Since sex and race both are invidious classifications, cases like Loving are applicable.