Gov't witness says transsexuality is not medical

In a court case that could have far-reaching consequences for transsexuals a government witness testified on Aug. 23 that transsexuality has no medical basis. Rhiannon O'Donnabhain is suing the IRS after it refused to allow her to deduct the $25,000 cost of her sex reassignment surgery. The IRS maintains the surgery is cosmetic and not medically necessary. If she wins her case hundreds of transsexuals annually across the country would be able to use the cost of their surgery as a tax deduction. On the witness stand on Aug. 23, testifying for the government was forensic psychiatrist Dr. Park Dietz. According to Dietz to be classified as a disease all disorders, including transsexuality, must have "an underlying pathological process." "There are variations in human nature, and these variations are not diseases," Dietz said on the stand. On cross examination O'Donnabhain's attorney, Bennett Klein, from the Gay and Lesbian Advocates and Defenders disputed his claim and called into question his credibility as a witness. Klein questioned Dietz about his testimony in the 2002 trial of Andrea Yates, a Texas woman who drowned her five children. In that trial Yates had pleaded not guilty by reason on insanity. She was found guilty of murder after Dietz testified she may have seen an episode of "Law & Order" just prior to the children's drownings in which a woman was acquitted by reason of insanity after drowning her children. After Yates was convicted it was learned that no such episode existed, and Yates' conviction was overturned. In federal court in Boston on Aug. 23 Dietz denied Klein's assertion that he had given "false testimony" in the Yates case. Dietz acknowledged that he had made a "mistake," but said his testimony was "erroneous, not knowingly false." GLAD attorney Karen Loewy told the court that there is medical consensus that gender identity disorder is a "legitimate serious medical condition." Rhiannon O'Donnabhain began transitioning in 1996. Five years later, her doctor recommended sex-change surgery, finding it was a medically necessary. A psychologist who examined O'Donnabhain concurred. O'Donnabhain claimed the $25,000 expenses on her 2001 tax return. The IRS denied the deduction in 2003 claiming the procedure was cosmetic, not a medical necessity. O'Donnabhain said she could have paid back the approximately $5,000 she received in her tax refund, but decided to challenge the IRS. The case opens new ground in tax court. The IRS itself has issued at least two separate rulings in other cases. In a 2005 case, the IRS ruled the costs of a woman's gender reassignment surgery and related treatments were not deductible as medical expenses. The IRS cited the section of the tax code that says cosmetic surgery or similar procedures are deductible only when they are needed to improve a congenital abnormality, an accident or trauma, or a disfiguring disease. In a 1983 case, however, the IRS allowed a father to deduct his transportation costs when he accompanied his college-age son to a clinic where he received a sex-change operation. O'Donnabhain now 63, served in the Coast Guard, got married, raised three children and worked as a supervisor at various engineering and construction jobs, before being diagnosed with gender-identity disorder. An estimated 1,600 to 2,000 people a year undergo sex-change surgery in the US, according to the Gay and Lesbian Medical Association. "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," O'Donnabhain said in a statement following the court proceeding. Attorneys were given a Nov. 6 deadline to file briefs to Judge Joseph Gale. He did not indicate when he would issue a ruling.