NPR on Deductibility of Sex-Change Operation

NPR yesterday covered the pending Tax Court case of O’Donnabhain v. Commissioner, which raises the issue of whether male-to-female gender reassignment surgery qualifies as a deductible medical expense under § 213 (Transgender Woman, IRS Fight over Tax Deduction, by Tovia Smith):

"The IRS is arguing that gender-reassignment surgery is really no different, conceptually, than a tummy tuck or a Botox injection," said Theodore Seto, a professor at Loyola Law School, Los Angeles. "The argument is: 'Look, she is changing her appearance so as to look better, to be happier with herself. It doesn't treat any underlying problem.'"

But O'Donnabhain accused the IRS of discrimination. She said her surgery was meant to treat a legitimate and widely recognized medical condition. "It's really astonishing that the IRS is taking a position that they get to second-guess the determinations of a taxpayer's medical care providers," said O'Donnabhain's attorney, Karen Loewy. "The medical community gets to decide what is medical care — not the IRS."

But the IRS counters that the medical community is split. While some see sex-reassignment surgery as the closest thing medicine has to a cure for GID, others see the surgery as basically mutilating a person's properly functioning anatomy. "I think the problem doesn't lie in their genitals, it lies in their mind, and we should be working on their mind," says Paul McHugh, a professor of psychiatry at Johns Hopkins University. "We don't do liposuction on people with anorexia nervosa to help them to be more thin. We encourage them to see that this is a misdirection of human interest."

(Hat Tip:  Jeff Kahn.)  For prior TaxProf Blog coverage, see here, here, and here.