rhiannon g o’donnabhain petitioner v commissioner of internal revenue respondent docket no filed date in p born a genetic male was diagnosed with gender identity disorder a condition recognized in medical reference texts in which an individual experiences persistent psycho- logical discomfort concerning his or her anatomical gender medical professionals who treat gender identity disorder pre- scribe for its treatment in genetic males depending on the severity of the condition i administration of feminizing hor- mones ii living as a female in public and iii after at least a year of living as a female surgical modification of the geni- tals and in some circumstances breasts to resemble those of a female sex reassignment surgery pursuant to this treat- ment regimen p was prescribed feminizing hormones in and continued to take them through in after plastic surgery to feminize facial features p began presenting full time in public as a female in p underwent sex reassignment surgery including breast augmentation surgery p claimed a medical_expense_deduction under sec_213 i r c for the cost of the surgeries transportation and other related expenses and feminizing hormones for the taxable_year r disallowed the deduction held p’s gender identity disorder is a disease within the meaning of sec_213 and b i r c held further p’s hormone therapy and sex reassignment surgery were for the treatment of and treated disease within the meaning of sec_213 and b i r c respectively and consequently the proce- dures are not cosmetic_surgery that is excluded from the definition of medical_care by sec_213 i r c and instead the amounts paid for the procedures are expenses for medical_care that are deductible pursuant to sec_213 i r c held further p’s breast augmentation surgery was directed at improving her appearance and she has not shown that the surgery either meaningfully promoted the proper function of the body or treated disease within the meaning of sec_213 i r c accordingly the breast augmentation surgery is cosmetic_surgery within the meaning of sec_213 i r c that is excluded from the definition of deductible medical_care by sec_213 i r c karen l loewy bennett h klein jennifer l levi wil- liam e halmkin david j nagle and amy e sheridan for petitioner mary p hamilton john r mikalchus erika b cormier and molly h donohue for respondent verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner gale judge respondent determined a deficiency of dollar_figure in petitioner’s federal_income_tax for after conces- sions the issue for decision is whether petitioner may deduct as a medical_care expense under sec_213 amounts paid in for hormone therapy sex reassignment surgery and breast augmentation surgery that petitioner contends were incurred in connection with a condition known as gender identity disorder findings_of_fact many of the facts have been stipulated and the stipulated facts and attached exhibits are incorporated in our findings by this reference the parties have stipulated that this case is appealable to the u s court_of_appeals for the first cir- cuit i petitioner’s background rhiannon g o’donnabhain petitioner was born a genetic male with unambiguous male genitalia however she was uncomfortable in the male gender role from childhood and first wore women’s clothing secretly around age her discomfort regarding her gender intensified in adolescence and she continued to dress in women’s clothing secretly as an adult petitioner earned a degree in civil engineering served on active_duty with the u s coast guard found employment at an engineering firm married and fathered three children however her discomfort with her gender persisted she felt that she was a female trapped in a male body and she continued to secretly wear women’s clothing petitioner’s marriage ended after more than years after separating from her spouse in petitioner’s feelings that she wanted to be female intensified and grew more persistent petitioner concedes that she is not entitled to any deduction for an individual retirement ac- count contribution and respondent concedes that petitioner is entitled to deduct dollar_figure as medical_expenses under sec_213 unless otherwise indicated all section references are to the internal_revenue_code_of_1986 as amended and in effect in the year in issue and all rule references are to the tax_court rules_of_practice and procedure reflecting petitioner’s preference we use the feminine pronoun to refer to her throughout this opinion petitioner and her spouse were divorced in verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports ii petitioner’s psychotherapy and diagnosis by mid-1996 petitioner’s discomfort with her male gender role and desire to be female intensified to the point that she sought out a psychotherapist to address them after inves- tigating referrals petitioner contacted diane ellaborn ms ellaborn a licensed independent clinical social worker licsw and psychotherapist and commenced psychotherapy sessions in date although not a medical doctor ms ellaborn had a mas- ter’s degree in social work and as an licsw was authorized under massachusetts law to diagnose and treat psychiatric illnesses she had specialized training in the diagnosis and treatment of gender-related disorders during petitioner’s psychotherapy ms ellaborn learned of petitioner’s cross-dressing history and of her longstanding belief that she was really female despite her male body ms ellaborn observed that petitioner was very sad and anxious had very low self-esteem had limited social interactions and was obsessed with incongruence between her perceived gender and her anatomical sex issues concerning the in early after approximately weekly individual therapy sessions ms ellaborn’s diagnosis was that peti- tioner was a transsexual suffering from severe gender identity disorder gid a condition listed in the diagnostic and statistical manual of mental disorders 4th ed text revision dsm-iv-tr published by the american psy- chiatric association the dsm-iv-tr states that a diagnosis of gid is indicated where an individual exhibits a strong and persistent desire to be or belief that he or she is the other sex persistent discomfort with his or her anatom- ical sex including a preoccupation with getting rid of pri- mary or secondary sex characteristics an absence of any physical intersex hermaphroditic condition and clini- cally significant distress or impairment in social occupa- tional or other important areas of functioning as a result of the discomfort arising from the perceived incongruence between anatomical sex and perceived gender identity see in reaching her diagnosis ms ellaborn considered and ruled out other causes-so-called co- morbid conditions-of petitioner’s symptoms including psychosis an earlier diagnosis of atten- tion deficit hyperactivity disorder depression and transvestic fetishism transvestic fetishism occurs in heterosexual or bisexual men for whom the cross-dressing behavior is for the purpose of sexual excitement aside from cross-dressing most individuals verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner dsm-iv-tr pincite under the classification system of the dsm-iv-tr a severity modifier-mild moderate or severe- may be added to any diagnosis the term transsexualism is currently used in the dsm-iv-tr to describe gid symptoms that are severe or profound both the dsm-iv-tr and its predecessor the dsm-iv con- tain the following cautionary statement the purpose of dsm-iv is to provide clear descriptions of diagnostic cat- egories in order to enable clinicians and investigators to diagnose commu- nicate about study and treat people with various mental disorders it is to be understood that inclusion here for clinical and research purposes of a diagnostic category does not imply that the condition meets legal or other non-medical criteria for what constitutes mental disease mental disorder or mental_disability iii treatment of gid the world professional association for transgender health wpath formerly known as the harry benjamin inter- national gender dysphoria association inc is an associa- tion of medical surgical and mental health professionals specializing in the understanding and treatment of gid wpath publishes standards of care for the treatment of gid hereinafter benjamin standards of care or benjamin standards the benjamin standards of care were originally with transvestic fetishism do not have a history of childhood cross-gender behaviors dsm- iv-tr pincite petitioner reported to ms ellaborn that she cross-dressed in order to feel more feminine rather than for purposes of sexual arousal a modifier of severe indicates that there are many more symptoms than those required to make the diagnosis or several symptoms that are particularly severe are present or the symptoms result in marked impairment in social and occupational functioning beyond the min- imum threshold required for diagnosis see dsm-iv-tr pincite the gid diagnosis was labeled transsexualism when it first appeared in the third edition of the dsm published in dsm-iii the fourth edition of the dsm published in dsm-iv replaced the transsexualism diagnosis with gid and added the criterion for the diag- nosis that the patient exhibit clinically significant distress or impairment in important areas of functioning the dsm-iv underwent a text revision in resulting in the dsm-iv-tr but there are no material differences in the dsm’s treatment of gid as between the dsm-iv and dsm-iv-tr editions notwithstanding the replacement of the transsexualism diagnosis with gid the terms transsexualism and transsexual are still used generally in psychiatry to refer to severe or profound gid- or a sufferer thereof harry benjamin m d was an endocrinologist who in conjunction with mental health professionals in new york did pioneering work in the study of transsexualism the par- ties have stipulated that the term gender dysphoria was coined by dr norman fisk dr fisk in to describe patients presenting with dissatisfaction and unhappiness with their ana- tomic and genetic sex and their assigned gender the parties have further stipulated that ac- cording to a article by dr fisk transsexualism represents the most extreme form of gen- der dysphoria verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports approved in and have undergone six revisions through date summarized the benjamin standards of care prescribe a triadic treatment sequence for individuals diagnosed with gid consisting of hormonal sex reassignment ie the administration of cross-gender hormones to effect changes in physical appearance to more closely resemble the opposite sex the real-life experience wherein the individual undertakes a trial period of living full time in society as a member of the opposite sex and sex reassignment sur- gery consisting of genital sex reassignment and or nongen- ital sex reassignment more fully described as follows genital surgical sex reassignment refers to surgery of the genitalia and or breasts performed for the purpose of altering the morphology in order to approximate the physical appearance of the genetically other esx sic in persons diagnosed as gender dysphoric non-genital surgical sex reassignment refers to any and all other surgical procedures of non-genital or non-breast sites nose throat chin cheeks hips etc conducted for the purpose of effecting a more masculine appearance in a genetic female or for the purpose of effecting a more feminine appearance in a genetic male in the absence of identifiable pathology which would warrant such surgery regardless of the patient’s genetic sex facial injuries hermaphroditism etc under the benjamin standards an individual must have the recommendation of a licensed psychotherapist to obtain hormonal or surgical sex reassignment hormonal sex reassignment one psychotherapist and surgical sex reassignment requires the recommending psychotherapist for transsexualism for a period of at least years independent of the patient’s claims should have diagnostic evidence recommendations recommendation requires two the the the benjamin standards state that hormonal sex reassign- ment should precede surgical sex reassignment because the patient’s degree of satisfaction with hormone therapy may indicate or contraindicate later surgical sex reassignment of of both parties’ experts agree that administration of cross-gender hormones in genetic males with gid also has a psychological effect producing a sense of well-being and a calming effect to be qualified to recommend hormonal or surgical sex reassignment a psychotherapist must have a master’s degree in clinical behavioral science and at least one of the recommenders for surgical sex reassignment must have a doctoral degree in the field com- petence in psychotherapy as demonstrated by a state license to practice it and specialized competence in sex therapy and gender identity disorders as demonstrated by supervised clinical experience and continuing education verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner the benjamin standards further state that genital sex reassignment shall be preceded by a period of at least months during which time the patient lives full-time in the social role of the genetically other sex the standards pro- vide that breast augmentation surgery may be performed as part of sex reassignment surgery for a male-to-female patient if the physician prescribing hormones and the surgeon have documented that breast enlargement after undergoing hor- mone treatment for months is not sufficient for comfort in the social gender role iv ms ellaborn’s treatment plan for petitioner after diagnosing severe gid in petitioner in early ms ellaborn administered a course of treatment that followed the benjamin standards of care a petitioner’s hormone treatments in date ms ellaborn referred petitioner to an endocrinologist for feminizing hormone therapy and peti- tioner commenced taking hormones in date she remained on feminizing hormones continuously through the taxable_year in issue after beginning hormone therapy petitioner told ms ellaborn that she felt calmer and better emotionally and that she felt positive about her physical changes ms ellaborn viewed petitioner’s positive reactions to hormone therapy as validation of the gid diagnosis petitioner advised her former spouse and children of her gid diagnosis in and respectively b petitioner’s real-life experience in consultation with ms ellaborn petitioner decided to undertake the benjamin standards’ real-life experience ie to present in public as female on a full-time basis in march petitioner attended monthly individual therapy sessions throughout most of petitioner was hesitant about starting hormones and changing her appearance too quickly she was concerned about the impact on her children and coworkers petitioner’s 16-year-old son was living with her at the time and petitioner wished to postpone significant changes in her appearance until after her son had graduated from high school and begun college petitioner also commenced electrolysis treatments to remove body hair in date and continued them through the deductibility of the expenses related to electrolysis is not at issue the children’s reactions were characterized by embarrassment anger denial and with- drawal verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports petitioner legally changed her name from robert donovan to rhiannon g o’donnabhain and arranged to have the gender designation on her driver’s license changed on the basis of her gid diagnosis she underwent surgery to feminize her facial features and with the cooperation of her employer commenced presenting as a female at work around april of that year petitioner informed ms ellaborn that her transition at work went smoothly and that the real- life experience had been incredibly easy ms ellaborn viewed petitioner’s positive response to her real-life experi- ence as further validation of the gid diagnosis c petitioner’s sex reassignment surgery petitioner’s anxiety as a result of having male genitalia persisted however and ms ellaborn concluded that her prognosis without genital surgical sex reassignment sex reassignment surgery was poor in that petitioner’s anxiety over the lack of congruence between her perceived gender and her anatomical sex would continue in the absence of sur- gery and would impair her ability to function normally in society in date ms ellaborn wrote a referral letter to dr toby meltzer dr meltzer a board-certified plastic and reconstructive surgeon with over years’ experience specializing in sex reassignment surgery to secure a place for petitioner on his waiting list after three additional therapy sessions with petitioner in mid-2001 ms ellaborn concluded that petitioner had satis- fied or exceeded all of the benjamin standards’ criteria for sex reassignment surgery including time spent satisfactorily on feminizing hormones and in the real-life experience in date ms ellaborn wrote a second letter to dr meltzer certifying petitioner’s gid diagnosis and satisfaction of the petitioner also carried with her a letter from ms ellaborn explaining the gid diagnosis to be used in the event she was confronted by authorities for using a sex-segregated facility such as a restroom or a changing room ms ellaborn had observed that notwithstanding months of hormone therapy petitioner had distinctly male facial features which interfered with her passing as female ms ellaborn referred petitioner to a plastic surgeon who in date performed procedures designed to feminize petitioner’s facial features including a rhinoplasty nose reshaping a facelift and a tracheal shave reducing cartilage of the adam’s apple petitioner was dissatisfied with the initial results and in date the surgeon performed further surgery to revise the effects of the earlier procedures the surgeon also gave petitioner a botox treatment at that time the deductibility of the foregoing procedures is not at issue in one instance petitioner held a knife and had an urge to cut off her penis verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner formally recommending petitioner benjamin standards’ criteria for sex reassignment surgery and sur- gery another licensed psychotherapist with a doctoral degree in clinical psychology dr alex coleman dr coleman examined petitioner and provided a second recommendation for her sex reassignment surgery as required by the ben- jamin standards dr coleman’s letter to dr meltzer observed that petitioner appears to have significant breast development secondary to hormone therapy the for petitioner anticipating the formal recommendations for her surgery went for a consultation and examination by dr meltzer in date at his offices in portland oregon dr meltzer concluded that petitioner was a good candidate for sex reassignment surgery dr meltzer’s notes of his phys- ical examination of petitioner state examination of her breasts reveal sic approximately b cup breasts with a very nice shape in mid-date petitioner returned to portland and she underwent sex reassignment surgery on date the procedures that dr meltzer carried out included surgical removal of the penis and testicles and creation of a vaginal space using genital skin and tissue the procedures were designed to surgically reconfigure petitioner’s male genitalia to create female genitalia both in appearance and in function by reconstructing the penile glans into a neo-clit- oris making sexual arousal and intercourse possible dr meltzer also performed breast augmentation surgery designed to make petitioner’s breasts which had experienced some development as a result of feminizing hormones more closely resemble the breasts of a genetic female in date dr meltzer performed followup surgery on petitioner to refine the appearance of her genitals and remove scar tissue in date dr meltzer performed further surgery on petitioner’s face designed to feminize her facial features v petitioner’s claim for a medical_expense_deduction during petitioner incurred and paid the following expenses totaling dollar_figure in connection with her hormone therapy sex reassignment surgery and breast augmentation the deductibility of these procedures undertaken in and is not at issue verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports surgery dollar_figure to dr meltzer for surgical procedures including dollar_figure for vaginoplasty and other procedures dollar_figure for breast augmentation and dollar_figure towards a portion of petitioner’s postsurgical stay at dr meltzer’s facility dollar_figure for medical equipment dollar_figure in travel and lodging costs away from home for presurgical consultation and sur- gery dollar_figure to ms ellaborn for therapy dollar_figure for the consultation for a second referral letter for surgery and dollar_figure for hormone therapy these payments were not com- pensated for by insurance or otherwise on her federal_income_tax return for petitioner claimed an itemized_deduction for the foregoing expenditures as medical_expenses which respondent subsequently dis- allowed in a notice_of_deficiency vi expert testimony a petitioner’s expert dr brown petitioner’s expert dr george r brown dr brown is a licensed physician board certified in adult psychiatry by the american board_of psychiatry and neurology dr brown has been a member of the american psychiatric association since and was elected a distinguished fellow of that organization in at the time of trial dr brown was a professor and associate chairman of the department of psychiatry at east tennessee state university and chief of psychiatry at james h quillen veterans affairs medical center in johnson city tennessee dr brown has been an active member of wpath since including serving on its board_of directors and he participated in the development of the benjamin standards of care he has seen approximately gid patients either in a clinical setting or as an academic researcher dr brown has published numerous papers in peer-reviewed medical journals and written several book chapters on topics related to gid including those in the merck manuals one of the most widely used medical reference texts in the world citing its recognition in the dsm-iv-tr standard medical reference texts and world health organization publications dr brown contends that there is general agreement in main- stream psychiatry that gid is a legitimate mental disorder dr brown indicates that there are no biological or laboratory verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner tests that may be used to diagnose gid but notes the same is true of virtually all of the mental disorders listed in the dsm-iv-tr in dr brown’s view proper medical treatment of a person diagnosed with gid includes extended psychotherapy and one or more of the triadic therapies in the benjamin standards dr brown is not aware of any case in which psychotherapy alone was effective in treating severe gid for individuals with severe gid dr brown believes completion of the entire triadic sequence ie through sex reassignment surgery is usually medically necessary to cure or mitigate the distress and maladaption caused by gid in dr brown’s opinion it is also important to the mental health of a male with severe gid to be able to pass convinc- ingly in public as female-that is to be perceived as female by members of the public failure to pass exacerbates the anxieties associated with gid passing includes the use of sex-segregated facilities such as restrooms and locker rooms where a failure to pass can result in public humiliation assault or arrest genetic males with gid sometimes have distinctly male facial features that make it difficult to pass absent surgery to feminize facial features according to dr brown autocastration autopenectomy and suicide have been reported in patients who did not receive appropriate treatment for their gid dr brown rejects the idea that sex reassignment surgery is comparable to cosmetic_surgery or is undertaken to improve one’s appear- ance in view of the social stigma including rejection by family and employment discrimination and the pain and complications typically associated with such surgery more- over dr brown observes normal genetic males generally do not desire to have their penis and testicles removed such a desire is regarded in the psychiatric literature as a likely manifestation of psychosis usually schizophrenia or gid fol- lowed by a range of other less likely explanations in dr brown’s opinion people undergo sex reassignment surgery because of the severity of their gid symptoms and the lack of any other known effective treatment in dr brown’s view the scientific literature demonstrates positive therapeutic outcomes from sex reassignment sur- verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports gery he cites widely used psychiatric reference texts that reach the same conclusion on the basis of a review of petitioner’s medical records and a telephone interview with petitioner dr brown opined that petitioner was properly diagnosed with gid and petitioner’s treatments including sex reassignment surgery were appro- priate and medically necessary b respondent’s expert dr schmidt respondent’s expert dr chester w schmidt jr dr schmidt is a licensed physician board certified in psychi- atry by the american board_of psychiatry and neurology and a member of the american psychiatric association at the time of trial dr schmidt was a professor of psychiatry at the johns hopkins university school of medicine the chief medical director johns hopkins health care and chair of the medical board johns hopkins bayview medical center dr schmidt cofounded the sexual behavior consultation unit of the johns hopkins hospital a clinical teaching and research program devoted to the evaluation and treatment of sexual disorders in since that time he has been active in the clinical and teaching aspects of transsexualism having participated in the evaluation of approximately patients per year diagnosed with gid however he has not directly treated or managed a patient with gid since the mid-1980s and his current clinical activity consists of evaluating new cases of gid dr schmidt’s expert report states that he has participated in the publication of several peer-reviewed medical journal articles about gid but none has been identi- fied for which he was a listed author and he has never writ- ten a chapter on the subject in a medical reference text in his expert report dr schmidt asserts that the validity of the gid diagnosis remains the subject of debate within the psychiatric profession and that he currently is undecided about its validity however months before submitting see green gender identity disorder in adults in new oxford textbook of psychiatry gelder et al eds oxford univ press green blanchard gender identity disorders in kaplan sadock’s comprehensive textbook of psychiatry sadock sadock eds 7th ed lippincott williams wilkins levine sexual disorders in psychiatry tasman et al eds 2d ed john wiley sons dr schmidt’s report states that he is uncertain that gid is a mental disorder in the light of the heterogeneity of gid patients in terms of presentation personality and motivation and verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner his expert report dr schmidt provided a diagnosis of gid as an expert in a u s district_court proceeding and continued to make the diagnosis regularly through the time of trial as do other practitioners at the johns hopkins sexual disorders clinic he cofounded further dr schmidt states that the gid diagnosis is taught to psychiatrists in training at his and other medical schools and is a condition with which they must be familiar dr schmidt agreed that gid requires treatment he has observed that you can’t walk around day after day being ambiguous about your gender identity it will tear you apart psychologically dr schmidt likewise agreed that untreated gid in males can sometimes lead to autopenectomy autocastration and suicide dr schmidt believes that the benjamin standards of care are merely guidelines rather than true standards of care in that they do not meet the legal threshold of a community standard the departure from which would constitute mal- practice dr schmidt further believes that the benjamin standards enjoy only limited acceptance in american medi- cine generally he is unaware however of any significant disagreement with the benjamin standards within the psy- chiatric profession other than a minority that considers sex reassignment surgery unethical dr schmidt agrees with the benjamin standards’ treatment protocols with the exception that he believes psychotherapy should be mandatory rather than merely recommended for candidates for sex reassign- ment all gid patients at the sexual disorders clinic where dr schmidt practices are advised to become familiar with the benjamin standards of care dr schmidt believes that cross-gender hormone therapy and sex reassignment surgery have recognized medical and psychiatric benefits for persons suffering from gid including reinforcement of an internal sense of consistency and balance in their gender identity dr schmidt has also expressed the view that once a genetic male with gid makes the decision to transition to a female identity everything that reinforces the identity is helpful for psychological well-being however in his opinion a therapist should remain neutral regarding whether a patient should undergo hormone therapy or the the lack of a scientifically supported etiology of the condition verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports surgery because dr schmidt believes there is insufficient scientific evidence of the procedures’ efficacy in treating gid a therapist should accordingly only take a position when there are contraindications to the procedures in his opinion given his view that failure to adhere to the benjamin standards of care would not constitute malpractice and that a therapist should remain neutral regarding the administra- tion of hormone therapy or sex reassignment surgery dr schmidt concludes that the procedures are elective and not medically necessary he acknowledges however that the issue of the medical necessity of sex reassignment surgery is contentious and variable within american medicine finally while noting that there is some evidence that gid may have a neurological cause dr schmidt believes that there is no conclusive scientific proof that gid is the result of a genetic or congenital abnormality c respondent’s expert dr dietz respondent’s expert dr park dietz dr dietz is a licensed physician and board certified in psychiatry by the american board_of psychiatry and neurology like dr brown he is a distinguished fellow of the american psy- chiatric association at the time of trial dr dietz was a clin- ical professor of psychiatry and behavioral sciences at the university of california at los angeles school of medicine dr dietz’ specialty is forensic psychiatry and he has written approximately professional publications mostly on sexual criminal and antisocial behavior from the standpoint of forensic psychiatry in peer-reviewed journals reference text chapters and other media dr dietz was recognized as an expert in forensic psychiatry he was retained by respondent for the purpose of addressing the question of whether gid or transsexualism is a disease or illness it is dr dietz’ opinion that gid is a mental disorder susceptible of a correct or incorrect diagnosis but not a dis- ease or an illness because it has not been shown to arise from a pathological process within the body-a necessary condition for a disease in dr dietz’ view while acknowl- edging that commentators on the subject have advanced pincite dr dietz believes that illness is simply the recognized presence of disease usually as a result of the host experiencing signs or symptoms but sometimes as a result of an incidental finding by a clinician or the observations of a third party verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner least three possible sufficient conditions for the presence of disease namely discomfort dysfunction or pathology dr dietz considers pathology the appropriate sufficient condi- tion thus in dr dietz’ opinion disease is defined as follows to be a disease a condition must arise as a result of a pathological process it is not necessary that this process be fully known or understood but it is necessary that the pathology occur within the individual and reflect abnormal structure or function of the body at the gross microscopic molecular biochemical or neuro-chemical levels citing the cautionary statement in the dsm-iv-tr to the effect that inclusion of a condition in a diagnostic category of the dsm does not imply that the condition meets legal criteria for mental disease dr dietz asserts that the designation of a condition as a mental disorder in the dsm-iv-tr does not indicate that the condition is a disease to be a disease a mental disorder must have a demonstrated organic or biological origin in the individual in his view dr dietz testified that since qualification as a disease under his definition depends upon a demonstration of the condition’s organic origins a condition may be a disease but not known as such pending scientific discoveries concerning its etiology for example panic disorder and obsessive- compulsive disorder are now understood to have an organic basis but their etiology was only discovered as a result of laboratory advances within the last decade or so thus both conditions are diseases under dr dietz’ definition but would not have been recognized as such years ago dr dietz con- firmed that bulimia is psychologically unhealthy but not a disease under his formulation because it has no dem- onstrated organic etiology dr dietz was unable to say whether anorexia is a disease under his definition because he was unfamiliar with the current state of scientific knowl- edge of anorexia’s etiology in dr dietz’ view post-traumatic stress disorder is not a disease as he defines the term but an injury dr dietz agrees that gid is sometimes associated with autopenectomy autocastration and suicide as confirmed by dr dietz bulimia is a mental disorder characterized by binge eating fol- lowed by inappropriate compensatory behaviors to avoid weight gain such as induced vomiting as confirmed by dr dietz anorexia is a mental disorder in which an individual refuses to maintain a minimally normal body weight is phobic regarding weight gain and exhibits a dis- turbance in perception of the shape or size of his or her body verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports i medical expense deductions under sec_213 opinion a in general sec_213 allows a deduction for expenses paid during the taxable_year for medical_care that are not_compensated_for_by_insurance_or_otherwise and to the extent that such expenses exceed percent of adjusted_gross_income in addition sec_213 and provides that certain amounts paid for transportation and lodging respectively may qualify as amounts paid for medical_care under sec_213 if a taxpayer’s travel away from home is primarily for and essential to receiving medical_care b definition of medical_care congress first provided an income_tax deduction for med- ical expenses in see revenue act of ch sec_127 56_stat_825 the original provision was codified as sec_23 of the internal_revenue_code and read as follows sec_23 deductions from gross_income in computing net_income there shall be allowed as deductions x medical dental etc expenses -except as limited under para- graph or expenses paid during the taxable_year for medical_care of the taxpayer the term medical_care as used in this sub- section shall include amounts paid for the diagnosis cure mitigation treatment or prevention of disease or for the purpose of affecting any structure or function of the body at the time the senate committee on finance commented on the new deduction for medical_expenses in relevant part as follows sec_213 provides that amounts paid for a prescribed_drug are treated as amounts paid for medical_care the parties have stipulated that the feminizing hormones petitioner purchased in were a prescribed_drug within the meaning of sec_213 and d but respondent does not stipulate that the hormones were for the treatment of an illness or disease within the meaning of sec_213 the parties have stipulated that if any part of petitioner’s sex reassignment surgery is de- termined by the court to be deductible under sec_213 then petitioner’s travel and lodging costs incurred in connection with her consultation and surgery by dr meltzer are also deductible verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner the term medical_care is broadly defined to include amounts paid for the diagnosis cure mitigation treatment or prevention of disease or for the purpose of affecting any structure or function of the body it is not intended however that a deduction should be allowed for any expense that is not incurred primarily for the prevention or alleviation of a physical or mental defect or illness s rept 77th cong 2d sess 1942_2_cb_504 emphasis added see 12_tc_580 medical_care is defined in broad and comprehensive language but it does not include items which are primarily nondeductible personal living_expenses affd 183_f2d_579 6th cir the core definition of medical_care originally set forth in sec_23 of the code has endured over time and is currently found in sec_213 which provides as fol- lows sec_213 d definitions -for purposes of this section- the term medical_care means amounts paid- a for the diagnosis cure mitigation treatment or prevention of disease or for the purpose of affecting any structure or function of the body thus since the inception of the medical_expense_deduction the definition of deductible medical_care has had two prongs the first prong covers amounts paid for the diag- nosis cure mitigation treatment or prevention of disease and the second prong covers amounts paid for the purpose of affecting any structure or function of the body the regulations interpreting the statutory definition of medical_care echo the description of medical_care in the senate_finance_committee report accompanying the original enactment the regulations state in relevant part e definitions- general i the term medical_care includes the diagnosis cure mitigation treatment or prevention of disease expenses paid for medical_care shall include those paid for the purpose of affecting any structure or function of the body or for transportation primarily for and essential to medical_care ii deductions for expenditures_for medical_care allowable under sec_213 will be confined strictly to expenses_incurred primarily for the prevention or alleviation of a physical or mental defect or illness sec_1_213-1 income_tax regs emphasis added notably the regulations mirroring the language of the finance_committee report treat disease as used in the verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports statute as synonymous with a physical or mental defect or illness the language equating mental defect with dis- ease was in the first version of the regulations promulgated in and has stood unchanged since see t d c b in addition to qualify as medical_care under the regulations an expense must be incurred primarily for alleviation of a physical or mental defect and the defect must be specific a n expenditure which is merely beneficial to the general health of an individual such as an expendi- ture for a vacation is not an expenditure for medical_care sec_1_213-1 income_tax regs given the reference to mental defect in the legislative_history and the regulations it has also long been settled that disease as used in sec_213 can extend to mental dis- orders see eg 50_tc_164 n that mental disorders can be ‘disease’ within the meaning of sec_213 is no longer open to ques- tion 41_tc_877 35_tc_1223 in 62_tc_813 this court reviewed the legislative_history of sec_213 and syn- thesized the caselaw to arrive at a framework for analysis of disputes concerning medical expense deductions noting that the medical_expense_deduction essentially carves a limited exception out of the general_rule of sec_262 that per- sonal living or family_expenses are not deductible the court observed that a taxpayer seeking a deduction under sec_213 must show the present existence or imminent probability of a disease defect or illness-mental or physical and a payment for goods or services directly or proximately related to the diagnosis cure mitigation treatment or prevention of the disease or illness id pincite moreover where the expenditures are arguably not wholly medical in nature and may serve a personal as well as med- ical purpose they must also pass a but for test the tax- payer must prove both that the expenditures were an essen- tial element of the treatment and that they would not have otherwise been incurred for nonmedical reasons id pincite applying the foregoing principles the court in 62_tc_813 concluded that the expenses of the taxpayer’s divorce even though the divorce was rec- ommended by the taxpayer’s psychiatrist and was beneficial to the taxpayer’s mental health verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner c definition of cosmetic_surgery the second prong of the statutory definition of medical_care concerning amounts paid for the purpose of affecting any structure or function of the body was eventually adjudged too liberal by congress the internal_revenue_service relying on the second prong had determined in two revenue rulings that deductions were allowed for amounts expended for cosmetic procedures such as facelifts hair transplants and hair removal through electrolysis because the procedures were found to affect a structure or function of the body within the meaning of sec_213 see revrul_82_111 1982_1_cb_48 hair transplants and hair removal revrul_76_332 1976_2_cb_81 facelifts see also 77_tc_650 hair trans- plants to treat premature baldness deductible under sec_213 in congress responded to these rulings by amending sec_213 to include new subsection d which generally speaking excludes cosmetic_surgery from the definition of deductible medical_care see omnibus budget reconciliation act of publaw_101_508 sec a stat a review of the legislative_history of sec_213 shows that congress deemed the amendment necessary to clarify that deductions for medical_care do not include amounts paid for an elective purely cosmetic treatment h conf rept pincite 1991_2_cb_560 see also cong rec senate_finance_committee report language on omnibus budget reconcili- ation act of were not deductible medical_expenses because the divorce would have been undertaken even ab- sent the taxpayer’s depression the bill as initially passed in the house of representatives did not include a provision ad- dressing cosmetic_surgery this provision originated in the senate the report of the senate fi- nance committee which was informally printed in the congressional record contrasted cos- metic procedures with medically necessary procedures as follows for purposes of the medical_expense_deduction the irs generally does not distinguish between procedures which are medically necessary and those which are purely cosmetic expenses for purely cosmetic procedures that are not medically necessary are in essence voluntary personal expenses which like other personal expenditures eg food and clothing generally should not be deductible in computing taxable_income continued verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports sec_213 defines cosmetic_surgery as follows sec_213 definitions -for purposes of this section- cosmetic_surgery - a in general -the term medical_care does not include cosmetic_surgery or other similar procedures unless the surgery or procedure is necessary to ameliorate a deformity arising from or directly related to a congenital abnormality a personal injury resulting from an accident or trauma or disfiguring disease b cosmetic_surgery defined -for purposes of this paragraph the term cosmetic_surgery means any procedure which is directed at improving the patient’s appearance and does not meaningfully pro- mote the proper function of the body or prevent or treat illness or dis- ease in sum sec_213 provides the general_rule that the term medical_care does not include cosmetic_surgery as defined unless the surgery is necessary to ameliorate deformities of various origins sec_213 then defines cosmetic_surgery as any procedure that is directed at improving the patient’s appearance but excludes from the definition any procedure that meaningfully promotes the proper function of the body or prevents or treats illness or disease there appear to be no cases of precedential value interpreting the cosmetic_surgery exclusion of sec_213 ii the parties’ positions respondent contends that petitioner’s hormone therapy sex reassignment surgery and breast augmentation surgery are nondeductible cosmetic_surgery or other similar proce- dures under sec_213 because they were directed at improving petitioner’s appearance and did not treat an ill- ness or disease meaningfully promote the proper function of the body or ameliorate a deformity although respondent u nder the provision procedures such as hair removal electrolysis hair transplants lyposuction sic and facelift operations generally are not deductible in contrast expenses for procedures that are medically necessary to promote the proper function of the body and only incidentally affect the patient’s appearance or expenses for the treatment of a disfiguring condi- tion arising from a congenital abnormality personal injury or trauma or disease such as recon- structive surgery following removal of a malignancy continue to be deductible al-murshidi v commissioner t c summary opinion construed sec_213 but was decided under sec_7463 and may not be treated as precedent see sec_7463 respondent contends that petitioner’s hormone therapy was a similar procedure within the meaning of sec_213 verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner concedes that gid is a mental disorder respondent contends relying on the expert testimony of dr dietz that gid is not a disease for purposes of sec_213 because it does not arise from an organic pathology within the human body that reflects abnormal structure or function of the body at the gross microscopic molecular biochemical or neurochemical levels respondent further contends that the procedures at issue did not treat disease because there is no scientific proof of their efficacy in treating gid and that the procedures were cosmetic_surgery because they were not medically necessary finally respondent contends that petitioner did not have gid that it was incorrectly diagnosed and that therefore the procedures at issue did not treat a disease petitioner maintains that she is entitled to deduct the cost of the procedures at issue on the grounds that gid is a well- recognized mental disorder in the psychiatric field that falls squarely within the meaning of ‘disease’ because it causes serious clinically significant distress and impairment of functioning since widely accepted standards of care pre- scribe hormone treatment sex reassignment surgery and in appropriate circumstances breast augmentation surgery for genetic males suffering from gid expenditures_for the fore- going constitute deductible medical_care because a direct or proximate relationship exists between the expenditures and the diagnosis cure mitigation treatment or prevention of disease petitioner argues morever petitioner contends because the procedures at issue treated a disease as used in sec_213 they are not cosmetic_surgery as defined in that section iii analysis the availability of the medical_expense_deduction for the costs of hormonal and surgical sex reassignment for a transsexual individual presents an issue of first impression petitioner also argues that the expenditures_for the procedures at issue are deductible be- cause they affected a structure or function of the body within the meaning of sec_213 and were not cosmetic_surgery under sec_213 because they were not directed at improv- ing the patient’s appearance and because they meaningfully promoted the proper function of the body within the meaning of sec_213 given our conclusion discussed herein- after that the expenditures_for petitioner’s hormone therapy and sex reassignment surgery are deductible because they treated disease within the meaning of sec_213 and b we need not resolve the foregoing issues with respect to those expenditures we consider petitioner’s arguments with respect to the breast augmentation surgery more fully infra verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports a statutory definitions determining whether sex reassignment procedures are deductible medical_care or nondeductible cosmetic_surgery starts with the meaning of treatment and disease as used in sec_213 both the statutory definition of medical_care and the statute’s exclusion of cosmetic_surgery from that definition depend in part upon whether an expenditure or procedure is for treatment of disease under sec_213 if an expenditure is for the treatment of disease it is deductible medical_care under sec_213 if a procedure treats disease it is not cosmetic_surgery that is excluded from the definition of medical_care because the only difference between the quoted phrases in these two subparagraphs is the use of the noun form treat- ment versus the verb form treat we see no meaningful distinction between them code provisions generally are to be interpreted so congressional use of the same words indicates an intent to have the same meaning apply 118_tc_226 see also 508_us_152 349_us_232 77_tc_428 consequently the determination of whether something is a treatment of a disease is the same throughout sec_213 whether for purposes of showing that an expenditure is for medical_care under sec_213 or that a procedure is not cosmetic_surgery under sec_213 a showing that a procedure con- stitutes treatment of a disease both precludes cosmetic_surgery classification under sec_213 and qualifies the procedure as medical_care under sec_213 as noted respondent contends that petitioner’s hormone therapy is a similar procedure within the meaning of the sec_213 exclusion from medical_care of cosmetic_surgery or other similar procedures respondent does not contend however that the hormone therapy’s status as a similar procedure within the meaning of sec_213 ipso facto causes the therapy to be excluded from medical_care instead by arguing that the hormone therapy was directed at improving petitioner’s appearance and did not treat an illness or disease respondent concedes that a similar procedure as used in sec_213 is delimited by the definition of cosmetic_surgery in sec_213 b -that is that a similar procedure is excluded from the definition of medical_care if it is directed at improving the patient’s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease the parties have stipulated that petitioner did not undertake hormone therapy or sex reas- signment surgery to ameliorate a deformity arising from or directly related to a personal injury verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner congress’ reuse of the terms treat and disease in defining cosmetic_surgery in sec_213 triggers a second principle of statutory construction given that the phrase treatment of disease as used in the sec_213 definition of medical_care had been the subject of considerable judicial and administrative construction when congress incorporated the phrase into the definition of cos- metic surgery in it had acquired a settled judicial and administrative interpretation commissioner v keystone consol indus inc supra pincite in these circumstances it is proper to accept the already settled meaning of the phrase id therefore the pre-1990 caselaw and regulations construing treatment and disease for purposes of the sec_213 definition of medical_care are applicable to the interpretation of those words as used in the sec_213 definition of cosmetic_surgery b is gid a disease petitioner argues that she is entitled to deduct her expenditures_for the procedures at issue because they were treatments for gid a condition that she contends is a dis- ease for purposes of sec_213 respondent maintains that petitioner’s expenditures did not treat disease because gid is not a disease within the meaning of sec_213 central to his argument is respondent’s contention that disease as used in sec_213 has the meaning postulated by respond- ent’s expert dr dietz namely a condition arising as a result of a pathological process occurring within the individual and reflecting abnormal structure or function of the body at the gross microscopic molecular biochemical or neuro-chemical levels on brief respondent cites the foregoing definition from dr dietz’ expert report and urges it upon the court as the meaning of disease as used in sec_213 namely that a disease for this purpose must have a demonstrated organic or physiological origin in the individual consequently gid is arising from an accident or trauma or a disfiguring disease petitioner has neither argued nor adduced evidence that the foregoing procedures ameliorated a deformity arising from or directly related to a congenital abnormality see sec_213 we consider petitioner’s arguments concerning the breast augmentation surgery more fully infra verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports not a disease because it has no known organic pathology respondent argues however this use of expert testimony to establish the meaning of a statutory term is generally improper e xpert testimony proffered solely to establish the meaning of a law is presumptively improper 243_f3d_1 n 1st cir the meaning of a statutory term is a pure question of law that is exclusively the domain of the judge 133_f3d_92 1st cir see also 365_f3d_65 1st cir 30_f3d_898 7th cir 105_tc_16 affd 98_f3d_194 5th cir closely analogous is s jersey sand co v commissioner 30_tc_360 affd 267_f2d_591 3d cir where this court refused to consider the expert testimony of a geologist concerning the meaning of the term quartzite as used in the internal_revenue_code while the court admitted dr dietz’ expert report and allowed him to testify over petitioner’s objection the use to which respondent now seeks to put his testimony is improper and we disregard it for that purpose the meaning of disease as used in sec_213 must be resolved by the court using settled principles of statutory construc- tion including reference to the commissioner’s interpretive regulations the legislative_history and caselaw precedent as a legal argument for the proper interpretation of dis- ease respondent’s position is meritless respondent cites no authority other than dr dietz’ expert testimony in support of his interpretation and we have found none to the con- trary respondent’s interpretation is flatly contradicted by nearly a half century of caselaw numerous cases have treated mental disorders as diseases for purposes of sec_213 without regard to any demonstrated organic or physio- logical origin or cause see 76_tc_408 the experts all agree and the court accepts for purposes of deciding this case that no or- ganic or biological cause of gid has been demonstrated in contrast the testimony of the other two experts presents specialized medical knowledge concerning the nature of gid these facts bear upon whether gid should be considered to qual- ify as a disease as the court interprets that term dr dietz’ testimony as a forensic psychiatrist is proper and useful regarding other matters such as the state of knowledge concerning organic origins of mental conditions and the court relies on the testimony for certain other purposes as discussed infra verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner jacobs v commissioner t c pincite 50_tc_164 41_tc_877 35_tc_1223 sims v commissioner tcmemo_1979_499 these cases found mental conditions to be diseases where there was evidence that mental health professionals regarded the condition as creating a significant impairment to normal functioning and warranting treatment this court’s discus- sion in fay v commissioner supra pincite is represent- ative while the record is not too clear with respect to the precise nature of the mental conditions of the taxpayer’s children we are satisfied that they both suffered from some sort of learning disability accompanied by emotional stress which prevented or at least interfered with their ability to cope in a normal academic environment while this condition may or may not have been psychiatric it was certainly a mental handicap or defect which we think may be considered a mental disease or defect for purposes of sec_213 it was the type of disorder that the petitioners their expert educational consultants a psychiatrist and the staff of the dld program thought could be mitigated or alleviated or possibly cured by the special attention and individual programing given to the chil- dren at the dld while these mental disorders may not have been severe enough to require psychiatric or psychological treatment they were severe enough to prevent the children from acquiring a normal education without some help and we think any treatment whether rendered by medical people or specially trained educators directly related to the alleviation of such mental disorders so that the recipient may obtain a normal or more normal education qualifies as medical_care under the statute in fischer v commissioner supra pincite there was a similar absence of any discussion of organic or physiological origins in this court’s analysis of the conventional meaning of disease the first question presented is whether petitioner’s son don was suffering from a disease as that term is used in the statute and the applicable regulation given that term its conventional meaning we think the evi- dence is clear that don was suffering from a disease when he entered oxford academy as detailed in our findings the report of the institute of the pennsylvania hospital states that as of that date don had not evolved the usual ‘defense’ or integrating mechanisms necessary for dealing maturely realistically and in an organized fashion with the prob- lems of his environment a psychiatrist who treated don for the dld program refers to the department of language development program a special program at the taxpayer’s children’s school for children with learning disabilities 76_tc_408 verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports almost a year described him as a child with significant neurotic blocks against learning fn ref omitted see also jacobs v commissioner supra pincite taxpayer’s severe depression as evidenced by his psychiatrist’s testi- mony is disease for purposes of sec_213 hendrick v commissioner supra pincite emotional insecurity of child is a disease for purposes of sec_213 sims v commis- sioner supra disease for purposes of sec_213 found although record does not contain a precise characterization of the taxpayer’s son’s condition in medical termi- nology there is ample evidence to support a finding that he suffered from some sort of learning disability accompanied by emotional or psychiatric problems we have also consid- ered a condition’s listing in a diagnostic reference text as grounds for treating the condition as a disease without inquiry into the condition’s etiology in starrett v commis- sioner supra pincite n a reviewed opinion we treated anxiety reaction as a disease for purposes of sec_213 pointing to the condition’s recognition in the amer- ican medical association’s standard nomenclature of dis- eases and operations 5th ed the absence of any consideration of etiology in the caselaw is consistent with the legislative_history and the regulations both treat disease as synonymous with a physical or mental defect which suggests a more colloquial sense of the term disease was intended than the narrower and more rigorous interpretation for which respondent contends in addition in the context of mental disorders it is vir- tually inconceivable that congress could have intended to confine the coverage of sec_213 to conditions with dem- onstrated organic origins when it enacted the provision in because physiological origins for mental disorders were not widely recognized at the time as dr dietz confirmed in his testimony the physiological origins of various well-recog- nized mental disorders-for example panic disorder and obsessive-compulsive disorder-were discovered only about a decade ago moreover dr dietz confirmed that bulimia would not constitute a disease under his definition because bulimia has no demonstrated organic origin nor would post- traumatic stress disorder dr dietz was unable to say whether anorexia would meet the definition because he was verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner uncertain regarding the current state of scientific knowledge of its origins petitioner’s expert dr brown testified without challenge that most mental disorders listed in the dsm-iv-tr do not have demonstrated organic causes thus under the definition of disease respondent advances many well-recog- nized mental disorders perhaps most would be excluded from coverage under section 213-a result clearly at odds with the intent of congress and the regulations to provide deductions for the expenses of alleviating mental defects generally in sum we reject respondent’s interpretation of disease because it is incompatible with the stated intent of the regu- lations and legislative_history to cover mental defects gen- erally and is contradicted by a consistent line of cases finding disease in the case of mental disorders without regard to any demonstrated etiology having rejected respondent’s contention that disease as used in sec_213 requires a demonstrated organic origin we are left with the question whether the term should be interpreted to encompass gid on this score respondent while conceding that gid is a mental disorder argues that gid is not a significant psychiatric disorder but instead is a social construction -a social phenomenon that has been medicalized petitioner argues that gid is a disease for purposes of sec_213 because it is well recognized in main- stream psychiatric literature including the dsm-iv-tr as a legitimate mental disorder that causes serious clinically significant distress and impairment of functioning for the reasons already noted and those discussed below we conclude that gid is a disease within the meaning of sec_213 we start with the two caselaw factors influ- encing a finding of disease in the context of mental condi- tions a determination by a mental health professional that the condition created a significant impairment to normal functioning warranting treatment see 76_tc_408 62_tc_813 50_tc_164 35_tc_1223 or a listing of the condition in a medical reference text see 41_tc_877 both factors involve deference by a court to the judgment of medical professionals verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports as noted in our findings gid is listed as a mental disorder in the dsm-iv-tr which all three experts agree is the pri- mary diagnostic tool of american psychiatry see also 286_f3d_1 1st cir characterizing the dsm-iv as the leading psychiatric diag- nostic manual gid or transsexualism is also listed in numerous medical reference texts with descriptions of their characteristics that are similar to those in the dsm-iv-tr see starrett v commissioner supra even if one accepts respondent’s expert dr schmidt’s assertion that the validity of the gid diagnosis is subject_to some debate in the psychiatric profession the widespread recognition of the condition in medical literature persuades the court that acceptance of the gid diagnosis is the pre- vailing view dr schmidt’s own professed misgivings about the diagnosis are not persuasive given that he continues to employ the diagnosis in practice believes that psychiatrists must be familiar with it and recently gave a gid diagnosis as an expert in another court_proceeding on balance the we recognize that the dsm-iv-tr cautions that inclusion of a diagnostic category therein does not imply that the condition meets legal or other non-medical criteria for what constitutes mental disease mental disorder or mental_disability for purposes of our decision in this case gid’s inclusion in the dsm-iv-tr and its predecessors evidences widespread recognition of the condition in the psychiatric profession indisputably the issue of whether gid is a disease for purposes of sec_213 is for this court to decide and we do so on the basis of a range of fac- tors including gid’s inclusion in the dsm-iv-tr see eg american medical association complete medical encyclopedia random house the dictionary of medical terms 4th ed dorland’s illustrated medical dictionary http www mercksource com pp us cnslhlldorlands gender identity disorder and transsexualism merck manuals online medical library http www merck com mmpe print sec_15 ch203 ch203b html miller-keane encyclopedia and dictionary of medicine nursing and allied health national institutes of health u s national library of med- icine medlineplus medical http nlm nih gov medlineplus ency article html sloane-dorland annotated medical-legal dictionary encyclopedia transsexualism is also listed and described in the international classification of diseases ninth revision clinical modification 6th ed a publication of the american medical association used in the united_states for assigning codes to various diagnoses and procedures similarly various gender identity disorders including transsexualism are listed and described in the international classification of diseases tenth revision a publication of the world health organization that classifies diseases and health related problems respondent stresses on brief that he stipulated that the foregoing publications were medical reference texts but did not stipulate the truth of their contents except where otherwise indi- cated we consider medical reference texts solely for the fact that they recognize gid or transsexualism and treatments for the condition dr schmidt attributed his misgivings in part to the lack of a scientifically supported eti- ology of the condition but as petitioner’s expert dr brown pointed out the same could be said of most mental disorders listed in the dsm verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner evidence amply demonstrates that gid is a widely recognized and accepted diagnosis in the field of psychiatry second gid is a serious psychologically debilitating condi- tion respondent’s characterization of the condition on brief as a social construction and not a significant psychiatric disorder is undermined by both of his own expert witnesses and the medical literature in evidence all three expert wit- nesses agreed that absent treatment gid in genetic males is sometimes associated with autocastration autopenectomy and suicide respondent’s expert dr schmidt asserts that remaining ambiguous about gender identity will tear you apart psychologically petitioner’s expert dr brown likewise testified significant distress and maladaption psychiatric reference texts established as reli- able authority by dr brown’s testimony confirm the fore- going see fed r evid one such text states that gid produces cross-gender identity gender identity contradicted by anatomical sex characteristics in adulthood virtually always causes distress to the indi- vidual cross-gender identity at any age therefore is appropriately regarded as a disorder and a possible reason for clinical intervention green blanchard gender identity disorders in kaplan sadock’s comprehensive textbook of psychiatry sadock sadock eds another psychiatric reference text states that prior to rec- ognition of transsexualism as a disorder deserving medical and psychiatric attention many patients self-mutilated or committed suicide out of despair green gender identity disorder in adults in new oxford textbook of psychiatry gelder et al eds ms ellaborn concluded that petitioner exhibited clinically significant impairment from gid to the extent that she des- ignated petitioner’s condition as severe under the dsm-iv- tr standards her diagnosis was supported by another doc- toral-level mental health professional and by dr brown the severity of petitioner’s impairment coupled with the near universal recognition of gid in diagnostic and other medical reference texts bring petitioner’s condition in line with the circumstances where a mental condition has been deemed a disease in the caselaw under sec_213 third respondent’s position that gid is not a significant psychiatric disorder is at odds with the position of every u s verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports court_of_appeals that has ruled on the question of whether gid poses a serious medical need for purposes of the eighth amendment which has been interpreted to require that pris- oners receive adequate medical_care see 429_us_97 in estelle v gamble supra pincite the u s supreme court held that deliberate indifference to serious medical needs of prisoners constitutes the ‘unneces- sary and wanton infliction of pain’ proscribed by the eighth amendment the u s courts of appeals have accordingly interpreted estelle v gamble supra as estab- lishing a two-prong test for an eighth amendment violation it must be shown that the prisoner had a serious medical need which was met with deliberate indifference by prison officials see eg 222_f3d_99 2d cir applying the eighth amendment test to a pretrial detainee 849_f2d_322 8th cir that concluded severe gid seven of the u s courts of appeals that have considered the question have or transsexualism constitutes a serious medical need for pur- poses of the eighth amendment see 330_f3d_630 4th cir 9_fedappx_793 9th cir cuoco v moritsugu supra 63_f3d_967 10th cir phillips v mich dept of corr 932_f2d_969 6th cir affg 731_fsupp_792 w d mich white v farrier supra 821_f2d_408 7th cir see also 131_f3d_670 7th cir describing gender dysphoria as a profound psychiatric disorder no u s court_of_appeals has held otherwise deliberate indifference requires that a prison official actu- ally know of and disregard an objectively serious condition medical need or risk of harm de’lonta v angelone supra pincite many of the foregoing opinions either found that deliberate indifference had not been shown or remanded to the u s supreme court has also treated transsexualism as a serious medical_condition relying on its listing in the dsm-iii and the american medical association’s encyclopedia of medicine see 511_us_825 two courts of appeals have considered but found it unnecessary to decide whether gid or transsexualism constitutes a serious medical need for purposes of the eighth amendment see 430_f3d_1208 5th cir withdrawing 423_f3d_524 5th cir holding that transsexualism constitutes a serious medical need for eighth amendment purposes 163_f3d_610 d c cir verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner the district_court for further proceedings regarding that point but they reflect a clear consensus that gid constitutes a medical_condition of sufficient seriousness that it triggers the eighth amendment requirement that prison officials not ignore or disregard it in view of gid’s widely recognized status in diagnostic and psychiatric reference texts as a legitimate diagnosis the seriousness of the condition as described in learned trea- tises in evidence and as acknowledged by all three experts in this case the severity of petitioner’s impairment as found by the mental health professionals who examined her the consensus in the u s courts of appeals that gid constitutes a serious medical need for purposes of the eighth amend- ment we conclude and hold that gid is a disease for pur- poses of sec_213 c did petitioner have gid respondent also contends that petitioner was not correctly diagnosed with gid citing his expert dr schmidt’s conten- tions that certain comorbid conditions such as depression or transvestic fetishism had not been adequately ruled out as explanations of petitioner’s condition we find that petitioner’s gid diagnosis is substantially sup- ported by the record ms ellaborn was licensed under state law to make such a diagnosis a second licensed professional concurred as did petitioner’s expert a recognized authority in the field ms ellaborn’s testimony concerning her diag- nosis was persuasive she considered and ruled out comorbid conditions including depression and transvestic fetishism and she believed her initial diagnosis was confirmed by peti- tioner’s experience with the steps in the triadic therapy sequence but see 131_f3d_670 7th cir where the court_of_appeals for the seventh circuit after concluding that the plaintiff inmate had failed to establish that he had gender dysphoria observed in dicta that since treatment for gender dysphoria is protracted and expensive and the eighth amendment does not require that a prisoner be given medical_care that is as good as he would receive if he were a free person the amendment does not entitle a prison inmate to curative treatment for his gender dysphoria id pincite petitioner’s response to the administration of cross-gender hormones is especially persuasive regarding the diagnosis ms ellaborn observed that petitioner’s reaction to the effects of the hormones was essentially positive that is the hormones engendered a sense of well-being and a calming effect in petitioner-a well-documented phenomenon in genetic males suffering from gid who receive feminizing hormones confirmed by both respondent’s and petitioner’s experts by contrast as dr brown observed when feminizing hormones are administered to non-gid- continued verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports absent evidence of a patent lack of qualifications see eg flemming v commissioner tcmemo_1980_583 rejecting diagnosis of cancer and kidney disease by dentist this court has generally deferred in sec_213 disputes to the judg- ment of the medical professionals who treated the patient see eg fay v commissioner t c pincite jacobs v commissioner t c pincite fischer v commissioner t c pincite all three witnesses who supported peti- tioner’s gid diagnosis interviewed petitioner since dr schmidt did not his analysis is entitled to considerably less weight and we conclude that there is no persuasive basis to doubt the diagnosis d whether cross-gender hormones sex reassignment surgery and breast augmentation surgery treat gid cross-gender hormones and sex reassignment surgery our conclusions that gid is a disease for purposes of sec_213 and that petitioner suffered from it leave the ques- tion of whether petitioner’s hormone therapy sex reassign- ment surgery and breast augmentation surgery treated gid within the meaning of sec_213 and b in contrast to their dispute over the meaning of disease the parties have not disputed the meaning of treatment or treat as used in sec_213 and b respec- tively we accordingly interpret the words in their ordi- nary everyday sense see 331_us_1 284_us_552 ‘the legislature must be presumed to use words in their known and ordinary signification’ quoting levy’s lessee v m’cartee pet see also 269_f2d_911 3d cir the words of sec_213 are to be given their normal meaning without striving to read exceptions into them revg in part 30_tc_1093 treat is defined in standard dictionaries as to deal with a disease patient etc in order to relieve or cure webster’s new universal unabridged dictionary to care for or deal with medically or surgically merriam webster’s suffering males for other medical reasons and those males experience impotence widening hips and breast development their response is not a sense of well-being but anxiety verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner collegiate dictionary 11th ed a to care for as a patient or part of the body medically or surgically deal with by medical or surgical means give a medical treatment to b to seek cure or relief of webster’s third new international dictionary the regulations provide that medical_care is confined to expenses_incurred primarily for the prevention or alleviation of a physical or mental defect or illness sec_1 e ii income_tax regs emphasis added a treatment should bear a direct or proximate therapeutic relation to the condition sufficient to justify a reasonable belief the treatment would be efficacious 12_tc_409 in starrett v commissioner t c pincite this court concluded that the taxpayer’s psychoanalysis was a treatment of disease because the tax- payer was thereby relieved of the physical and emotional suffering attendant upon the condition known as anxiety reaction hormone therapy sex reassignment surgery and under certain conditions breast augmentation surgery are pre- scribed therapeutic interventions or treatments for gid out- lined in the benjamin standards of care the benjamin standards are widely accepted in the psychiatric profession as evidenced by the recognition of the standards’ triadic therapy sequence as the appropriate treatment for gid and transsexualism in numerous psychiatric and medical ref- erence texts indeed every psychiatric reference text that has been established as authoritative in this case endorses sex reassignment surgery as a treatment for gid in appro- priate circumstances no psychiatric reference text ha sec_44 see gender identity merck manuals second home edition http www merck com mmhe print sec07 ch104 ch104b html gender identity disorder and transsexualism merck manuals online medical library supra national institutes of health u s national library of medicine medline plus medical encyclopedia supra senagore frey orchiectomy gale encyclopedia of surgery thomson gale the following psychiatric reference texts have been established as learned treatises see fed r evid and endorse the essential elements of the triadic therapy sequence of the benjamin standards including sex reassignment surgery american psychiatric association treatments of psychiatric disorders ch 3d ed american psychiatric pre sec_2001 the benjamin standards of care for treating gender-dysphoric individuals developed by an international group of experts citation omitted and followed by most responsible professionals in the field provides a valuable guide for evaluation and treatment continued verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports been brought to the court’s attention that fails to list or rejects the triadic therapy sequence or sex reassignment sur- gery as the accepted treatment regimen for gid several courts have accepted the benjamin standards as representing once a patient has met readiness criteria for referral as outlined in the benjamin standards of care she must decide on a surgical technique and surgeon becker et al ch sexual and gender identity disorders in the american psychiatric press textbook of psychiatry 3d ed sex reassignment is a long process that must be carefully monitored if the patient is con- sidered appropriate for sex reassignment psychotherapy should be started to prepare the pa- tient for the cross-gender role the patient should then go out into the world and live in the cross-gender role before surgical reassignment after years if these measures have been successful and the patient still wishes reassignment hormone treatment is begun after years of hormone therapy the patient may be considered for surgical reassignment if such a procedure is still desired green in new oxford textbook of psychiatry supra pincite the benjamin standards of care programme includes in addition to ongoing psychiatric or psychological monitoring possibly endocrine therapy and depending on the outcome of the graduated trial period of cross-gender living possibly sex reassignment surgical procedures the philosophy of treatment is to do reversible procedures before those that are irreversible if patients can demonstrate to themselves and mental health experts that they have suc- cessfully negotiated the ‘real life test’ and are adjusting better socially in this new gender role they can be referred for surgery sadock sadock kaplan sadock’s comprehensive textbook of psychiatry 7th ed lippincott williams wilkins when the patient’s gender dysphoria is severe and intractable sex reassignment may be the best solution the first medical intervention in this process is hormone therapy the second major stage in the medical treatment of transsexualism is sex reassignment surgery all major gender identity clinics in north america and western europe require their patients to live full-time in the cross-gender role for some time-usually to years-prior to surgery tasman et al psychiatry 2d ed john wiley sons the treatment of gender identity disorders although not as well-based on scientific evi- dence as some psychiatric disorders has been carefully scrutinized by multidisciplinary commit- tees of specialists with the harry benjamin international gender dysphoria association wpath for over years for more details in managing an individual patient please consult its standards of care citation omitted living in the aspired-to-gender role-working relating conducting the activities of daily living- is a vital process that enables one of three decisions to abandon the quest to simply live in this new role or to proceed with breast or genital surgery citation omitted ideally hormones should be administered by endocrinologists who have a working relationship with a mental health team dealing with gender problems surgical intervention is the final external step respondent offered into evidence a chapter from a psychiatric reference text that respond- ent claimed did not reference the benjamin standards of care namely becker et al supra however a review of the chapter cited particularly pp reveals that the benjamin triadic sequence-cross-gender hormone therapy living in the cross-gender role and sex reas- signment surgery-is discussed without naming the benjamin standards or wpath specifi- cally and endorsed as the appropriate treatment protocol as set out supra note verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner the consensus of the medical profession regarding the appro- priate treatment for gid or transsexualism see gammett v idaho state bd of corr no cv05-257-s-mhw d idaho date memorandum_decision and order houston v trella no 04-cv-01393 d n j date opinion 221_fsupp2d_156 d mass 69_fsupp2d_120 n d d c nonetheless respondent’s expert dr schmidt contends in his report that physician acceptance of the benjamin standards is limited and that the standards are guidelines and are only accepted as more than guidelines by profes- sionals who advocate for hormonal and surgical treatment of gender identity disorder however dr schmidt conceded on cross-examination his prior sworn statement to the effect that he agreed with the benjamin standards except that psychotherapy should be mandatory rather than rec- ommended and was unaware of any significant disagreement with the benjamin standards in the psychiatric field other than those who believe that sex reassignment surgery is unethical a position that dr schmidt characterized as a minority one dr schmidt also acknowledged that all gid patients at the sexual disorders clinic at johns hopkins where he practices are advised to become familiar with the benjamin standards of care and he concedes that cross- gender hormone therapy and sex reassignment surgery have recognized medical and psychiatric benefits for persons suf- fering from gid dr schmidt also observed in his report that most physicians-indeed most psychiatrists-know very little about gid or its treatment and shun gid patients which may explain why the acceptance of the benjamin standards is not broad based in american medicine in any event given his own acceptance of the standards and their use in hi sec_47 dr schmidt cited an article by dr paul mchugh as evidence of the view of sex reassign- ment surgery as unethical and not medically necessary on cross-examination dr schmidt ac- knowledged that the mchugh article was not published in a peer-reviewed medical journal but instead in a religious publication see mchugh surgical sex first things the institute on religion and public life date http www firstthings com index php online edition respondent likewise cites the mchugh article on brief as medical opinion without disclosing the source of its publication dr schmidt also acknowledged previously stating that a surgically created vagina in a bio- logical male with gid creates an internal sense of consistency that is very important in main- taining a balance on a day-to-day basis and not having to bounce back and forth between you know am i male or am i female verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports clinic to the extent dr schmidt is suggesting that the stand- ards have limited acceptance among professionals knowledge- able regarding gid he is unpersuasive the widespread rec- ognition of the benjamin standards in the medical literature in evidence strongly supports the conclusion that the stand- ards enjoy substantial acceptance moreover petitioner’s expert dr brown contends that in the case of severe gid sex reassignment surgery is the only known effective treatment indeed dr brown was unaware of any case where psychotherapy alone had been effective in treating severe gid the u s court_of_appeals for the sev- enth circuit and the highest courts of two states have reached similar conclusions see maggert v hanks f 3d pincite sommers v iowa civil rights commn n w 2d iowa doe v minn dept of pub welfare n w 2d minn respondent also argues that petitioner’s sex reassignment surgery did not treat disease within the meaning of sec_213 because there is insufficient scientific evidence of the surgery’s efficacy in treating gid petitioner’s and respondent’s experts disagree regarding the sufficiency of the scientific proof of the surgery’s efficacy respondent’s expert dr schmidt contends that efficacy beyond patient satisfac- tion has not been demonstrated whereas petitioner’s expert dr brown believes there is ample proof of positive thera- peutic outcomes psychiatric reference texts support dr brown’s position see green gender identity disorder in adults in new oxford textbook of psychiatry gelder et al eds oxford univ press stating follow-up reports on oper- ated favorable and describing a study where transsexual patients were randomly transsexuals are generally quite judge posner wrote in maggert v hanks f 3d pincite the cure for the male transsexual consists not of psychiatric treatment designed to make the patient content with his biological sexual identity-that doesn’t work-but of estrogen therapy designed to create the secondary sexual characteristics of a woman followed by the surgical re- moval of the genitals and the construction of a vagina-substitute out of penile tissue citations omitted see also tasman et al psychiatry 2d ed john wiley sons no one knows how to cure through psychotherapy an adult’s gender problem people who have long lived with profound cross-gender identifications do not get insight-either behaviorally modified or medicated-and find that they subsequently have a conventional gender identity psychotherapy is useful nonetheless citation omitted verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner divided into two groups one receiving surgery promptly and the other having surgery postponed for years the group that received the earlier surgery showed significant improve- ment in a range of psychometric measures and maintained employment the unoperated group showed no improvement in psychological testing and deteriorated in employment green blanchard gender identity disorders in kaplan sadock’s comprehensive textbook of psychiatry sadock sadock eds 7th ed lippincott williams wil- kins outcome studies as a whole suggest that sur- gical sex reassignment produces additional improvements in psychosocial adjustment levine sexual disorders in psychiatry tasman et al eds 2d ed john wiley sons surgery can be expected to add further improve- ments in the lives of patients citation omitted -more social activities with friends and family more activity in sports more partner sexual activity and improved vocational status however even assuming some debate remains in the med- ical profession regarding acceptance of the benjamin stand- ards or the scientific proof of the therapeutic efficacy of sex reassignment surgery a complete consensus on the advis- ability or efficacy of a procedure is not necessary for a deduc- tion under sec_213 see eg dickie v commissioner tcmemo_1999_138 naturopathic cancer treatments deductible crain v commissioner tcmemo_1986_138 holistic cancer treatments deductible but for failure of substantiation tso v commissioner tcmemo_1980_399 navajo sings healing ceremonies deductible revrul_72_593 1972_2_cb_180 acupuncture deductible revrul_55_261 1955_1_cb_307 services of christian science practitioners deductible it is sufficient if the circumstances justify a reasonable belief the treatment would be efficacious havey v commissioner t c pincite that standard has been fully satisfied here the evidence is clear that a substantial segment of the psychiatric profession has been persuaded of the advisability and efficacy of hormone therapy and sex reassignment surgery as treatment for gid as have many courts finally the court does not doubt that as respondent’s expert dr schmidt points out in his report some medical professionals shun transsexual patients and consider cross- verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports gender hormone therapy and sex reassignment surgery unethical because they disrupt what is considered to be a normally functioning hormonal status or destroy healthy normal tissue however the internal_revenue_service has not heretofore sought to deny the deduction for a medical procedure because it was considered unethical by some see eg revrul_73_201 1973_1_cb_140 cost of abortion legal under state law is deductible medical_care under sec_213 revrul_55_261 supra services of christian science practitioners deductible absent a showing of illegality any such ground for denying a medical_expense_deduction finds no support in sec_213 in sum the evidence establishes that cross-gender hor- mone therapy and sex reassignment surgery are well-recog- nized and accepted treatments for severe gid the evidence demonstrates that hormone therapy and sex reassignment surgery to alter appearance and to some degree function are undertaken by gid sufferers in an effort to alleviate the distress and suffering occasioned by gid and that the proce- dures have positive results in this regard in the opinion of many in the psychiatric profession including petitioner’s and respondent’s experts thus a reasonable belief in the procedures’ efficacy is justified see havey v commissioner supra pincite alleviation of suffering falls within the regu- latory and caselaw definitions of treatment see starrett v commissioner supra sec_1_213-1 income_tax regs and to relieve is to treat according to standard dictionary definitions we therefore conclude and hold that petitioner’s hormone therapy and sex reassignment surgery treated disease within the meaning of sec_213 and accordingly are not cosmetic_surgery as defined in that section while our holding that cross-gender hormone therapy and sex reassignment surgery are not cosmetic_surgery is based upon the specific definition of that term in sec_213 our conclusion that these procedures treat dis- ease also finds support in the opinions of other courts that have concluded for various nontax purposes that sex the undisputed evidence is that administration of feminizing hormones to genetic male gid sufferers produces a psychological calming effect in addition to physical changes sex reassign- ment surgery in genetic males uses penile tissue in the newly created vagina in a manner de- signed to make the patient capable of arousal and intercourse verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner reassignment surgery and or hormone therapy are not cos- metic procedures see eg meriwether v faulkner f 2d pincite rejecting in an eighth amendment case the district court’s conclusion that a transsexual inmate’s requested hormone therapy was ‘elective medication’ nec- essary only to maintain ‘a physical appearance and life style’ and noting that numerous courts have expressly rejected the notion that transsexual surgery is properly characterized as cosmetic_surgery concluding instead that such surgery is medically necessary for the treatment of transsexualism 623_f2d_546 8th cir state medicaid plan may not deny reimbursement for sex reassignment surgery on grounds that it is cosmetic_surgery 440_fsupp_383 n d ga to same effect revd on other grounds 625_f2d_1150 5th cir j d v lackner cal rptr ct app sex reassignment surgery is not cosmetic_surgery as defined in state medicaid statute we do not believe by the wildest stretch of the imagination that such surgery can reasonably and logically be characterized as cos- metic g b v lackner cal rptr ct app to same effect davidson v aetna life cas ins co n y s 2d n y sup ct sex reassignment surgery cosmetic_surgery within meaning of medical insurance_policy exclusion sex reassign- ment surgery is performed to correct a psychological defect and not to improve muscle tone or physical appearance it cannot be considered to be of a strictly cosmetic nature but see 249_f3d_755 8th cir denial of reimbursement for sex reassignment surgery proper where state medicaid plan des- ignated sex reassignment surgery as cosmetic_surgery and alternate gid treatments available is not verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports breast augmentation surgery we consider separately the qualification of petitioner’s breast augmentation surgery as deductible medical_care because respondent makes the additional argument that this surgery was not necessary to the treatment of gid in peti- tioner’s case because petitioner already had normal breasts before her surgery because petitioner had normal breasts before her surgery respondent argues her breast augmentation surgery was directed at improving her appearance and did not meaningfully promote the proper function of the body or prevent or treat illness or disease placing the surgery squarely within the sec_213 definition of cosmetic_surgery petitioner has not argued or adduced evidence that the breast augmentation surgery ameliorated a deformity within the meaning of sec_213 accordingly if the breast augmentation surgery meets the definition of in sec_213 it is not medical_care that is deductible pursu- ant to sec_213 cosmetic_surgery for the reasons discussed below we find that petitioner has failed to show that her breast augmentation surgery treated gid the benjamin standards provide that breast augmentation surgery for a male-to-female patient may be performed if the physician prescribing hormones and the sur- geon have documented that breast enlargement after under- going hormone treatment for months is not sufficient for comfort in the social gender role the record contains no documentation from the endocrinologist prescribing peti- tioner’s hormones at the time of her surgery to the extent ms ellaborn’s or dr coleman’s recommendation letters to dr meltzer might be considered substitute documentation for that of the hormone-prescribing physician ms ellaborn’s two letters are silent concerning the condition of petitioner’s presurgical breasts while dr coleman’s letter states that petitioner appears to have significant breast development secondary to hormone therapy the surgeon here dr meltzer recorded in his presurgical notes that petitioner had approximately b cup breasts with a very nice shape thus all of the contemporaneous documentation of the condi- even petitioner conceded in her testimony that she had a fair amount of breast develop- ment from the hormones at the time of her presurgical consultation with dr meltzer verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner tion of petitioner’s breasts before the surgery suggests that they were within a normal range of appearance and there is no documentation concerning petitioner’s comfort level with her breasts in the social gender role dr meltzer testified with respect to his notes that his ref- erence to the very nice shape of petitioner’s breasts was in comparison to the breasts of other transsexual males on feminizing hormones and that petitioner’s breasts exhibited characteristics of gynecomastia a condition where breast mass is concentrated closer to the nipple as compared to the breasts of a genetic female nonetheless given the contem- poraneous documentation of the breasts’ apparent normalcy and the failure to adhere to the benjamin standards’ require- ment to document breast-engendered anxiety to justify the surgery we find that petitioner’s breast augmentation sur- gery did not fall within the treatment protocols of the ben- jamin standards and therefore did not treat gid within the meaning of sec_213 instead the surgery merely improved her appearance the breast augmentation surgery is therefore cosmetic_surgery under the sec_213 definition unless it meaningfully promoted the proper function of the body the parties have stipulated that petitioner’s breast aug- mentation did not promote the proper function of her breasts although petitioner expressly declined to stipulate that the breast augmentation did not meaningfully promote the proper functioning of her body within the meaning of sec_213 we conclude that the stipulation to which she did agree precludes a finding on this record given the failure to adhere to the benjamin standards that the breast aug- mentation surgery meaningfully promoted the proper func- tion of the body within the meaning of sec_213 consequently the breast augmentation surgery is cosmetic_surgery that is excluded from deductible medical_care respondent also argues that the various surgical procedures petitioner underwent to femi- nize her facial features in and demonstrate a propensity for cosmetic_surgery that is relevant in assessing whether petitioner’s hormone therapy and sex reassignment surgery were undertaken for the purpose of improving petitioner’s appearance rather than treating a disease we disagree the deductibility of petitioner’s facial surgery undertaken in years other than the year in issue is not at issue in this case however there is substantial evidence that such surgery may have served the same therapeutic purposes as genital sex reassignment surgery and hormone therapy namely effecting a female appearance in a genetic male both ms continued verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports e medical necessity finally respondent argues that petitioner’s sex reassign- medically necessary which ment surgery was not respondent contends is a requirement intended by congress to apply to procedures directed at improving appearance as evidenced by certain references to medically necessary procedures in the legislative_history of the enactment of the cosmetic_surgery exclusion of sec_213 respondent in effect argues that the legislative history’s contrast of non- deductible cosmetic_surgery with medically necessary proce- dures evidences an intent by congress to impose a require- ment in sec_213 of medical necessity for the deduc- tion of procedures affecting appearance we find it unneces- sary to resolve respondent’s claim that sec_213 should be interpreted to require a showing of medical neces- sity notwithstanding the absence of that phrase in the statute that is so because respondent’s contention would not bar the deductions at issue inasmuch as we are persuaded as discussed below that petitioner has shown that her sex reassignment surgery was medically necessary respondent’s basis for the claim that petitioner’s sex reassignment surgery was not medically necessary is the ellaborn and dr meltzer testified that petitioner had masculine facial features which interfered with her passing as female the expert testimony confirmed that passing as female is important to the mental health of a male gid sufferer and the benjamin standards contemplate surgery to feminize facial features as part of sex reassignment for a male gid sufferer thus we con- clude that the facial surgery does not suggest as respondent contends that petitioner had a propensity for conventional cosmetic_surgery respondent does not make this argument with respect to petitioner’s hormone therapy his own expert dr schmidt effectively concedes the medical necessity of hormone therapy when he argues that sex reassignment surgery is not medically necessary because hormone therapy is one of the alternative successful methods of managing gender identity disorder short of sur- gery respondent relies upon the following excerpts from the report of the senate finance com- mittee issued in connection with the enactment of the cosmetic_surgery exclusion of sec_213 expenses for purely cosmetic procedures that are not medically necessary are in essence vol- untary personal expenses which like other personal expenditures eg food and clothing gen- erally should not be deductible in computing taxable_income e xpenses for procedures that are medically necessary to promote the proper function of the body and only incidentally affect the patient’s appearance continue to be deductible cong rec the senate_finance_committee report is set out more fully supra note we note that the discussion of sec_213 in the conference_report issued with respect to the agreed final version of sec_213 contains no reference to medical necessity or any variant of the phrase see h conf rept pincite 1991_2_cb_560 verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner expert report and testimony of his expert dr schmidt dr schmidt acknowledges in his report that the definition of medical necessity varies according to the defining party dr schmidt never expressly defines the term but he con- cludes that sex reassignment surgery is not medically nec- essary because no community standard of care requires it so that a practitioner’s failure to provide the surgery would not constitute malpractice and in his view a thera- pist should remain neutral regarding the decision to have the surgery-which makes the surgery dr schmidt reasons elective taken together these two factors indicate that the surgery is not medically necessary in dr schmidt’s view respondent has not shown that dr schmidt’s concept of medical necessity is widely accepted and it strikes the court as idiosyncratic and unduly restrictive moreover dr schmidt also expressed the view that sex reassignment sur- gery has recognized medical and psychiatric benefits and is certainly medically helpful dr schmidt conceded in his report that a significant seg- ment of those physicians who are knowledgeable concerning gid believes that sex reassignment surgery is medically nec- essary ranging from those who believe such surgery is gen- erally medically necessary in treating gid to those who think it is medically necessary in selected cases as noted peti- tioner’s expert dr brown believes that sex reassignment sur- gery is often the only effective treatment for severe gid and a number of courts have concurred dr brown therefore believes the surgery is medically necessary for severe gid see also sadock sadock supra when the patient’s gender dysphoria is severe and intractable sex reassignment may be the best solution several courts have also concluded in a variety of contexts that sex reassignment surgery for severe gid or transsexualism is medically necessary see meriwether v faulkner f 2d pincite pinneke v preisser f 2d pincite sommers v iowa civil rights commn n w 2d pincite doe v minn dept of pub welfare petitioner’s expert dr brown disagrees with the view that a therapist should remain neu- tral regarding the decision to undergo sex reassignment surgery believing that a patient experi- encing the distress of gid is not well equipped to make a decision on irreversible surgery in dr brown’s opinion the therapist should counsel patients towards less invasive treatments until they have proven ineffective and the surgery appears to be the only effective alternative left verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports n w 2d pincite davidson v aetna life cas ins co n y s 2d pincite the mental health professional who treated petitioner con- cluded that petitioner’s gid was severe that sex reassign- ment surgery was medically necessary and that petitioner’s prognosis without it was poor given dr brown’s expert testimony the judgment of the professional treating peti- tioner the agreement of all three experts that untreated gid can result in self-mutilation and suicide and as conceded by dr schmidt the views of a significant segment of knowledgeable professionals that sex reassignment surgery is medically necessary for severe gid the court is persuaded that petitioner’s sex reassignment surgery was medically nec- essary iv conclusion the evidence amply supports the conclusions that peti- tioner suffered from severe gid that gid is a well-recognized and serious mental disorder and that hormone therapy and sex reassignment surgery are considered appropriate and effective treatments for gid by psychiatrists and other mental health professionals who are knowledgeable con- cerning the condition given our holdings that gid is a dis- ease and that petitioner’s hormone therapy and sex reassignment surgery treated it petitioner has shown the existence of a disease and a payment for goods or services directly or proximately related to its treatment see jacobs v commissioner t c pincite she likewise satisfies the but for test of jacobs which requires a showing that the procedures were an essential element of the treatment and that they would not have otherwise been undertaken for nonmedical reasons petitioner’s hormone therapy and sex reassignment surgery were essential ele- ments of a widely accepted treatment protocol for severe gid the expert testimony also establishes that given the risks pain and extensive rehabilitation associated with sex reassignment surgery the stigma encountered by person sec_56 when weighing dr brown’s and dr schmidt’s opposing views on whether sex reassignment surgery is medically necessary we consider that dr brown is widely published in peer-reviewed medical journals and academic texts on the subject of gid whereas dr schmidt is not accord- ingly there is a reasonable basis to conclude that dr brown’s views are more widely recognized and accepted in the psychiatric profession verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner who change their gender role and appearance in society and the expert-backed but commonsense point that the desire of a genetic male to have his genitals removed requires an explanation beyond mere dissatisfaction with appearance such as gid or psychosis petitioner would not have under- gone hormone therapy and sex reassignment surgery except in an effort to alleviate the distress and suffering attendant to gid respondent’s contention that petitioner undertook the surgery and hormone treatments to improve appearance is at best a superficial characterization of the circumstances that is thoroughly rebutted by the medical evidence petitioner has shown that her hormone therapy and sex reassignment surgery treated disease within the meaning of sec_213 and were therefore not cosmetic_surgery thus petitioner’s expenditures_for these procedures were for med- ical care as defined in sec_213 for which a deduction is allowed under sec_213 to reflect the foregoing and concessions by the parties decision will be entered under rule reviewed by the court colvin cohen thornton marvel wherry paris and morrison jj agree with this majority opinion halpern j concurring i substantially agree with the majority i write separately to offer one comment on the majority’s rationale for disallowing petitioner’s deduction for her breast augmentation surgery and to offer additional comments on positions taken in other side opinions i breast augmentation surgery i am satisfied with the majority’s decision to disallow a deduction for petitioner’s breast augmentation surgery on the ground that it did not fall within the treatment protocols of the benjamin standards majority op p for me that petitioner failed to prove her doctors adhered to the ben- jamin standards requirement that they document her breast- engendered anxiety is sufficient to find that the surgery did not fall within those standards the majority’s added reason the breasts’ apparent normalcy majority op p i find verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports superfluous and potentially misleading in particular the observation of dr meltzer petitioner’s surgeon in his pre- surgical note that petitioner’s breasts were of a very nice shape was not an aesthetic judgment but rather a clinical observation relating to the shape of her breasts in compari- son to the breasts of other transsexual males on feminizing hormones moreover dr meltzer testified that the surgery was different from the surgery he would perform on a biological female i t was to give her a female looking breast which is quite different from a male breast in response to a question from the court he testified that the primary purpose of the breast surgery was not to improve petitioner’s appearance but to assign her to the appropriate gender his medical notes should not be taken out of con- text ii statutory interpretation a introduction we face a task that is not unusual for us that is inter- preting the internal_revenue_code and we employ a set of tools canons of construction and the like that are familiar to both us and the parties my colleagues raise arguments in support of respondent that he did not make because they are not addressed by the majority i use this opportunity to address some of them b sex reassignment surgery treatment and mitigation for the sake of argument i accept the distinction judge gustafson draws between the words treat and mitigate nevertheless his argument that sex reassignment surgery only mitigates and does not treat gid rests on a subtle mis- understanding of that disease for judge gustafson petitioner’s disease was the delu- sion that she was a female gustafson op note judge gustafson cannot fathom that someone with a healthy male body who believes he is female is not sick of mind yet the record suggests that the disease is more than that a clearly the issues before us are important to respondent his opening brief is pages long and his answering brief i sec_72 pages long between them the two briefs show a total of eight attorneys assisting the chief_counsel in whose name the briefs are filed i assume that re- spondent made all the arguments that he thought persuasive verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner biological male who is convinced he is a woman but does not exhibit clinically significant distress or impaired functioning fails to satisfy at least one precondition set forth in dsm-iv- tr for a diagnosis of gid simply put the delusion itself is not the disease instead for someone suffering from severe gid like petitioner the medical problem-the disease-is the symptoms for a significant part of the medical community sex reassignment surgery is an accepted approach to elimi- nating a sufficient number of those symptoms so that a diag- nosis of gid will no longer hold and if the diagnosis will no longer hold then the patient is cured petitioner’s expert george r brown m d was of the opinion that sex reassignment surgery does not change the patient’s belief that his or her psychological gender does not match his or her biological sex nevertheless he was of the opinion that by virtue of petitioner’s hormone therapy and sex reassignment surgery she was cured of her gid which due to the severity and long-standing nature of her condition would not have been possible without hormones and sex reassignment surgery he testified that by cured he meant that the symptoms of the disorder were no longer present for an extended period she was cured he testified because when he examined her in date to prepare his expert testimony she no longer met the criteria for a diag- nosis of gid for instance he testified she had been free for a long time of clinically significant distress or impairment resulting from a misalignment of her body and her psycho- logical sex indeed his explanation comports with a consider- ation of the diagnostic criteria in dsm-iv-tr cited by the majority majority op p for gid in discussing the diag- nostic features of gid dsm-iv-tr states to make the diag- nosis of gid there must be evidence of clinically significant distress or impairment in social occupational or other important areas of functioning dr brown seems to have concluded that petitioner was cured according to the notion discussed above that a disease is characterized by an identifiable group of signs or symp- toms and when those signs or symptoms once present are see discussion of that precondition in the immediately following paragraph the principal meaning of disease in the american heritage dictionary of the english lan- guage 4th ed is a pathological condition of a part organ or system of an organism continued verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports no longer present in sufficient degree or severity to charac- terize diagnose the disease the patient is free of the dis- ease ie she is cured whether in fact petitioner was free of clinically significant distress or impairment there may have been some disagreement among the doctors has no effect on the force of dr brown’s argument if petitioner could be cured then she could be treated and as the majority makes clear we do not ground decisions as to med- ical care on the efficacy of the treatment majority op pp judge gustafson has failed to convince me that we should understand the verb to cure in any but the way dr brown uses it c the intent of congress judge goeke rejects surgery as a treatment for gid because of his contextual reading of the statute i believe that the word ‘treat’ in the context of the cosmetic_surgery exclusion implies that for expenses for any procedure to be deductible the procedure must address a physically related malady goeke op p judge goeke like judge gustafson how- ever fails to provide any convincing support for his position judge goeke’s contextual argument relies heavily on his discerning congressional purpose from the report of the senate_finance_committee discussed by the majority majority op note and quoted by judge goeke goeke op p in the light of the report language that he quotes judge goeke argues the senate_finance_committee report indicates that congress intended to allow deductions only for cosmetic_surgery to correct physical maladies resulting from disease or physical disfigurement goeke op p i disagree in general with judge goeke’s reliance on the report given the unambiguous language of sec_213 and i disagree in particular with the inference he draws from the report resulting from various causes such as infection genetic defect or environmental stress and characterized by an identifiable group of signs or symptoms emphasis added in rebuttal to dr brown respondent’s expert chester w schmidt jr m d disagreed with dr brown’s use of the word cure in connection with petitioner since she continued to suffer from psychiatric disorders but he did not dispute that someone who presents no symptoms of a disease would be considered cured of that disease judge gustafson seems to concede that if gid is curable then it is treatable a ny proce- dure that does ‘cure’ a disease necessarily ‘treats’ it gustafson op note verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner in 108_tc_54 we set forth the well-established and well-understood rules for construing a provision of the internal_revenue_code in construing a provision of the internal_revenue_code our task is to give effect to the intent of congress and we must begin with the statutory language which is the most persuasive evidence of the statutory purpose 310_us_534 ordinarily the plain meaning of the statutory lan- guage is conclusive 489_us_235 where a statute is silent or ambiguous we may look to legisla- tive history in an effort to ascertain congressional intent 481_us_454 59_f3d_1571 11th cir however where a statute appears to be clear on its face we require unequivocal evidence of legislative purpose before construing the statute so as to override the plain meaning of the words used therein 83_tc_742 see 90_tc_498 and cases there cited the word treat is found in sec_213 only in the definition of cosmetic_surgery in sec_213 it forms part of the expression does not prevent or treat illness or disease and nothing in the definition indicates that the expression excludes surgical treatments for mental illness or mental disease the language of sec_213 is sufficiently plain that in searching the legis- lative history of the provision for a contradiction i would keep firmly in mind the supreme court’s injunction in 489_us_235 ordinarily the plain meaning of the statutory lan- guage is conclusive i would also keep in mind that as quoted above where a statute appears to be clear on its face we require unequivocal evidence of legislative purpose before construing the statute so as to override the plain meaning of the words that provision on its face is ambiguous only to the extent that to give meaning to the term other similar procedures in sec_213 the word surgical probably should be inferred before the word procedure sec_213 would then read cosmetic_surgery defined -for purposes of this paragraph the term ‘cosmetic surgery’ means any surgical procedure which is directed at improving the patient’s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease without the inferred surgical the set of procedures constituting cosmetic_surgery would seem to encompass every procedure surgical or not doing nothing other than improving the patient’s appearance apparently leaving other similar procedures an empty set empty be- cause all procedures directed at improving appearance would already be in the set labeled cos- metic surgery verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports used therein campbell v commissioner supra pincite here there is no such evidence the paragraph of the senate_finance_committee report on which judge goeke relies does not adequately illuminate subparagraph b of sec_213 because it discusses disease only in the context of the amelioration of a disfiguring disease in subparagraph a of that section the report does not even mention that according to the definition of cosmetic_surgery a procedure that prevents or treats illness or disease will not be classified as cosmetic_surgery under sec_213 the senate_finance_committee report is far from unequivocal evidence of legislative purpose contrary to that to be inferred from the plain language of sec_213 i would stick with the plain language and read treat and illness or disease to have their ordinary meanings d the plain language of the provision judge foley takes both the majority and respondent to task for not adhering to the plain language of sec_213 the plain language he argues compels the conclu- sion that for surgery directed at improving appearance to escape classification as cosmetic_surgery under sec_213 it must both meaningfully promote the proper function of the body and prevent or treat illness or disease the reference to disfiguring disease in subpar a of sec_213 is also clear on its face that term is the object of the verb to ameliorate which is different from the verb to treat to treat a disease is to seek to cure it to ameliorate a disfiguring disease is seek to reduce the effects of a disease now gone for example consider dermal abrasion to erase scars left by a severe case of adolescent acne indeed h conf rept pincite 1991_2_cb_560 which accompanied the omnibus budget reconciliation act of publaw_101_508 sec a stat adding sec_213 and which postdates the senate_finance_committee report describes the senate amendment adding sec_213 in the exact terms of the statute the senate amendment provides that expenses paid for cosmetic_surgery or other similar pro- cedures are not deductible medical_expenses unless the surgery or procedure is necessary to ameliorate a deformity arising from or directly related to a congenital abnormality a personal injury resulting from an accident or trauma or disfiguring disease for purposes of this provi- sion cosmetic_surgery is defined as any procedure which is directed at improving the patient’s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease n b the term disease is used twice in two different contexts and as the majority notes ma- jority op note there is no reference to medical necessity judge foley does not put it that way ie stating what cosmetic_surgery is not but that must be what he means because he writes thus if petitioner’s procedures are ‘directed at im- proving appearance’ and ‘ do not meaningfully promote the proper function of the body’ they are cosmetic_surgery without regard to whether they treat a disease foley op p i assume he would concede that a procedure directed at improving appearance that both meaning- verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner he further argues that even if not cosmetic_surgery within the meaning of sec_213 petitioner’s sex reassign- ment surgery and related procedures i assume the hormone therapy may be other similar procedures under sec_213 i believe that judge foley is wrong on his first count and that with respect to his second count neither the sex reassignment surgery nor the hormone therapy falls within the class of other similar procedures i agree with judge foley that sec_213 sets forth a two-part test a procedure is cosmetic_surgery if it is directed at improving appearance and does not mean- ingfully promote the proper function of the body or prevent or treat illness or disease because the second part of the test contains two expressions separated by or that part of the test contains a disjunction ie a compound proposition that is true if one of its elements is true importantly how- ever the second part of the test contains not just a disjunction ie p or q but rather the negation of a disjunction ie not p or q judge foley errs because he assumes that the expression not p or q is equivalent to the expression not p or not q thus he redefines cos- metic surgery such that a procedure ‘directed at improving the patient’s appearance’ is cosmetic_surgery if it either does not ‘meaningfully promote the proper function of the body’ or does not ‘prevent or treat illness or disease ’ foley p judge foley simply disregards the rules of grammar and logic in favor of a part of the legislative_history that is silent as to the interpretative question he fashions in formal logic there is a set of rules de morgan’s laws relating the logical operators and and or in terms of each other via negation e g http en wikipedia org wiki delmorgan’sllaws the rules are not p or q not p and not q not p and q not p or not q the first of the rules would appear to govern the disjunction in sec_213 which is of the form not p or q its equivalent is of the form not p and not q which sub- stituting the relevant words is does not meaningfully pro- mote the proper function of the body and does not prevent or fully promotes function and treats a disease is not cosmetic_surgery verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports treat illness or disease the two-part test of sec_213 for determining whether a procedure is cosmetic_surgery could then equivalently be rewritten a procedure is cosmetic_surgery if it is directed at improving appearance and does not meaningfully promote the proper function of the body and does not prevent or treat illness or disease the second expression is true only if the procedure neither mean- ingfully promotes the proper function of the body nor pre- vents or treats illness or disease if one of the alternatives is true however then the expression is false and the test is flunked so that the procedure is not cosmetic_surgery that of course contradicts judge foley’s reading of the statute but i believe the better view is to presume that congress is careful in its drafting and drafts in accordance rather than in conflict with the rules of grammar and logic found finally judge foley argues that the similar procedures referred to in sec_213 are delimited only by the exceptions found in that provision and not the exceptions to the definition of cosmetic_surgery in sec_213 that reading seems wrong does judge foley suggest that even similar procedures that meaningfully promote the proper function of the body and prevent or treat illness or disease are not deductible medical_care that cannot be correct as i noted earlier if we infer the word surgical before the word procedure in the sec_213 definition of cosmetic_surgery then the term other similar procedures in sec_213 is given meaning i would argue that other similar procedures refers to nonsurgical appearance-enhancing procedures such as hormone therapy the deductibility of which is tested by applying first the exceptions in sec_213 then those in sec_213 petitioner’s sex reassignment surgery is excluded from the class of other similar proce- dures principally because it is surgical her hormone therapy is excluded because as the majority finds it treats her disease i assume that judge foley would concede that other similar procedures like cosmetic sur- gery must be directed at improving appearance if not it is difficult to imagine what boundaries congress had in mind for other similar procedures verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner e medical necessity without deciding whether sec_213 requires a showing of medical necessity the majority nonetheless finds that petitioner’s sex reassignment surgery was medically nec- essary majority op p apparently the majority is pre- paring for a perhaps different view of the statute by the court_of_appeals judge holmes’ brandeis brief 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 93_tc_529 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-reassign- ment surgery but not her breast-augmentation surgery i also agree with the majority that gid is a mental disorder and therefore a disease under sec_213 but i disagree with the majority’s extensive analysis concluding that sex reassignment is the proper treatment-indeed medically nec- essary 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 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 208_us_412 in which he persuaded the court to uphold a statute setting a maximum ten- hour workday for women black’s law dictionary 9th ed see 93_tc_529 verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports 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 for such psychiatrists gender follows sex is a funda- mental part of human nature and is not easily amenable to change those who take this view look at transsexual per- sons 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 short- hand way of saying that a transsexual person’s gender ie characteristic way of feeling or behaving and conventionally labeled either masculine or feminine is strongly perceived by her as mismatched to her sex ie biological characteris- tics this too is highly contested territory-gender being for a longer discussion on the definitions of gender versus sex see meyer the theory of verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner thought by many particularly feminists to be entirely some- thing society imposes on individuals to such theorists transsexualism is likewise a social construct the medical profession need not direct the gender dissatisfied to sur- gery 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 j lesbian stud suggesting srs be proscribed as crime against humanity see also id pincite citing raymond the transsexual empire teachers college press 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 eg blanchard typology of male-to- female transsexualism archives sexual behav cohen-kettenis gooren transsexualism a review of etiology diagnosis and treatment j psycho- somatic res summarizing research lawrence clinical and theoretical parallels between desire for limb amputation and gender identity disorder archives sexual behav 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 eg 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 archives sexual behav 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 j am psychoanalytic assn 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 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 verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports not effectively contested by the commissioner that the rea- son 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 hor- mone therapy is simply the correct treatment of the dis- order i profess no expertise in weighing the merits of biodeter- minism 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 cer- tainly agree that these standards express the consensus of wpath-the organization that wrote them and has seen six revisions of them over the last years but the consensus of wpath is not necessarily the consensus of the entire med- ical community the membership of wpath is limited con- sisting 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 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 verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner the benjamin standards provide a valuable guide t he patient may be considered for surgical reassign- ment 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 dis- orders is not as well-based on scientific evidence as some psy- chiatric 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 pro- ceed with breast or genital surgery see majority op note 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-gen- erally accepted standards of care-make no mention of the benjamin standards even the benjamin standards them- selves 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 dis- orders sixth version 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 date available at http www tgender net taw wpathmednecofsrs pdf last visited see apa practice guidelines http www psych org mainmenu psychiatricpractice practiceguidelinesl1 aspx last visited date verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports date but it also comprehensively addresses other problems it feels should be solved for example genital reconstruction is not required for social gender recognition and such surgery should not be a prerequisite for document or record changes changes to documentation are important aids to social functioning and are a necessary component of the pre-surgical process id pincite claims of medical necessity as they affect public- record rules at least suggest the possibility that wpath is medicalizing its advocacy and even wpath’s method of identifying candidates for srs-the method we describe and effectively endorse today- is very much contestable a leading article admittedly ten years old at this point but still oft cited concluded on this topic that u nfortunately studies evaluating the indispen- sability of components of the currently employed procedures are nonexistent cohen-kettenis gooren supra pincite ii the majority reasons that o’donnabhain’s hormone therapy and srs treat a disease and so their costs are deductible expenses of medical_care it then adds a coda to the opinion holding that these treatments are medically nec- essary majority op p a the best way of framing the question of deductibility is to view the medical-expense provisions in the code as creating a series of rules and exceptions sec_262 creates a gen- eral rule that personal expenses are not deductible sec_213 and d then creates an exception to the general_rule for the expenses of medical_care if they exceed a par- ticular percentage of adjusted_gross_income sec_213 then creates an exception to the exception for cosmetic sur- gery and sec_213 then creates a third-order exception restoring deductibility for certain types of cosmetic_surgery to show how this works in practice consider reconstructive breast surgery after a mastectomy this is a personal_expense ie not incurred for profit in a trade_or_business etc but such surgery affects a structure of the body under verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner sec_213 and so is medical_care but it’s presump- tively cosmetic_surgery under sec_213 because as reconstructive surgery it is directed at improving the patient’s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or dis- ease it is nevertheless deductible cosmetic_surgery under sec_213 because it is necessary to ameliorate a deformity arising from or directly related to a dis- figuring disease i agree with the majority’s holding that o’donnabhain’s gid is a disease until the collapse of psychiatry into the waiting arms of neurology is complete courts must of neces- sity rely on the listing and classification of disorders in the dsm but once this point is made we need not go further into a discussion of the proper standards of care or opine on their effectiveness our precedent as the majority correctly points out allows for the deductibility of treatments that are highly unlikely to survive rigorous scientific review see eg dickie v commissioner tcmemo_1999_138 naturopathic cancer treatments tso v commissioner tcmemo_1980_399 navajo sings as cancer treatment see also revrul_55_261 1955_1_cb_307 services of christian science practitioners subsequent modifications irrelevant the key question under sec_213 is whether the treatment is therapeutic to the involved see 50_tc_164 individual this is essentially a test looking to the good-faith subjec- tive motivation of the taxpayer there is no doubt that o’donnabhain meets it with regard to her hormone therapy and srs the fluidity of changes in the dsm from edition to edition suggests that the nosology of men- tal disorders is far from being as precise as for example the nosology of diseases caused by bacteria or vitamin deficiencies i’m therefore somewhat sympathetic to if ultimately unpersuaded by because of the great weight of precedent the commissioner’s effort to change our interpretation of disease in sec_213 to mean only maladies with a demonstrated or- ganic cause i must however note the commissioner’s alternative argument that negative myths and ig- norance that permeate social thinking in the united_states regarding transgendered persons and the many laws and legal situations that are highly discriminatory for persons with gid mean that the suffering experienced by gid patients is primarily inflicted by an intolerant soci- ety resp br pincite at least compared to the elevated status of the berdache in some native american cultures the kathoey in thailand the indian hijra and the fa’afafine in the south pacific as the commissioner anthropologically concludes id pincite it is not effective advocacy to denigrate the people whose government one is representing verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports b it is the majority’s next step in the analysis-its reading of the definition of cosmetic_surgery in sec_213 b - that i cannot join if it had reasoned simply that to treat illness in sec_213 meant the same low standard that it does in sec_213 -a subjective good-faith therapeutic intent on the part of the patient-and stopped we wouldn’t be doing anything controversial in the absence of any regulation there would be no reason to demur because as the majority carefully points out the phrase medical necessity is nowhere in the code majority op p nor of course is medical necessity consistent with the lib- eral construction of sec_213 both by us and by the irs the deductibility of navajo sings and christian science prayer did not depend on their medical necessity the phrase occurs in only one place in what is not even the most relevant legislative_history majority op note that should have been enough to dispense with the commissioner’s argument on this point but the majority tacks on an extra section onto its opinion concluding that srs and hormone therapy for transsexual persons are medically necessary avoidance would have been the sounder course because medically necessary is a loaded phrase construing it puts us squarely and unnecessarily in the middle of a serious fight within the relevant scientific community and the larger battle among those who are deeply concerned with the proper response to transsexual persons’ desires for exten- sive and expensive surgeries as the majority thoroughly explains the theory that srs is the best-and perhaps the only-treatment for gid has been extensively promoted dr brown o’donnabhain’s expert wit- ness summed up the theory-srs is medically necessary to cure or mitigate the distress and maladaption caused by gid majority op p for governments or insurers to exclude coverage thus becomes perceived as discrimination or an unjust deference to stereotypes of transsexual persons acceptance of srs as medically necessary has become a cause not only for those with gid but for a wider coalition as well see jeffreys supra our discussion of the science is though weak even by the low standards expected of lawyers tucked into a footnote is verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner our opinion on the relative merits of the scientific conclusions of dr brown o’donnabhain’s witness in favor of the medical necessity of srs and dr schmidt the commissioner’s wit- ness who was opposed majority op note the reasoning in that footnote in favor of dr brown’s opinion is that he is more widely published than dr schmidt but dr schmidt was chair of the sexual disorders work group that drafted part of the dsm-iv on which the majority relies and is a longtime psychiatry professor at johns hopkins and a founder of its sexual behavior consultation unit i think it fair to take judicial_notice that johns hopkins is a well- regarded medical institution the majority also criticizes dr schmidt for citing a reli- gious publication see majority op note it’s true that one of the sources dr schmidt cited was an article by the former chairman of johns hopkins’ psychiatry department in first things but it is inadequate if we’re going to weigh in on this debate to imply that johns hopkins’ conclusion was based merely on an essay in a religious publication first things like commentary and a host of other general- interest but serious periodicals seeks out the small subset of specialists who can write well essays by such people don’t aspire to be original research but they are often based on original research and so was the first things article by dr mchugh which summarized the research of a third member of the hopkins psychiatry department dr jon meyer meyer reter sex reassignment archives gen psychiatry in the study dr meyer followed up with former johns hopkins gender identity clinic patients unlike authors of previous studies meyer included both unoperated gid patients and post-srs patients in his study- allowing him to compare the well-being of the operated and unoperated patients using patient interviews he issued ini- tial and followup adjustment scores for both the operated and unoperated patients both the operated and unoperated sub- jects’ mean scores improved after the followup period but there was no significant difference between the improvement it is not quite accurate to label first things any more than commentary a religious publi- cation given the breadth of the subject matter and lack of sectarian slant in what it publishes dr schmidt could’ve just as easily cited the same conclusion by the same author in an essay in the american scholar mchugh psychiatric misadventures am scholar the american scholar is untainted by any connection with religion verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports of each group the operated group failed to demonstrate clear objective superiority over the unoperated group-in other words srs didn’t provide any objective improvement to the gid patients issues public opinion and social there are numerous other clues that the picture of sci- entific consensus that the majority presents is not quite right consider where the surgeries are currently performed srs was for many years primarily undertaken in research hospitals that had gender identity clinics these clinics would conduct research on srs and evaluate its effectiveness johns hopkins under the leadership of dr john money opened the first u s gender identity clinic in money schwartz in transsexualism a case study in medical sociology in transsexualism and sex reassignment green money eds after johns hopkins took the lead other univer- sity-based clinics jumped at the opportunity to research transsexualism and perform srs but the first research clinic to perform and study srs was also the first to cut it off the meyer study had found no significant difference in adjustment between those who had srs and those who didn’t and in light of that study johns hopkins announced in that it would no longer perform srs no surgery for transsexuals newsweek date pincite after the hopkins clinic closed the other university-based clinics either closed or ended their university affiliations denny supra stanford for example in spun off its university- affiliated clinic to a private center that performed srs but didn’t conduct research levy two transsexuals reflect on university’s pioneering gender dysphoria program stan- ford rep date extremely dr money wa sec_5 for an overview of the gender clinics see denny the university-affiliated gender clinics and how they failed to meet the needs of transsexual people transgender tapestry summer available at http www ifge org article59 phtml last visited date studies see witte john money helped create studies on gender identity associated press date available at http www boston com news globe obituaries articles johnlmoneylhelpedlcreatelstudieslonlgenderlidentity last visited date but there is now a consensus that some of his most noteworthy work was unethical and in some respects fraudulent see colapinto the true story of john joan rolling stone date pincite kipnis diamond pediatric ethics and the surgical assignment of sex j clinical ethics winter influential identity gender in the university of minnesota ucla vanderbilt uva stanford and duke were among the more prominent university-based gender identity clinics conducting research denny supra note verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner such eventually all university-based research clinics stopped the practice of srs id today srs in the united_states is primarily the purview of a few boutique surgery practices while surgeons-including o’donnabhain’s-are undoubtedly skilled in their art they do not have the capacity to conduct research on the medical necessity of srs like the research hospitals their practices use the benjamin standards but do not seem to conduct peer-reviewed studies of their efficacy it is true that the meyer piece has been the subject of lively controversy but it is certainly the case that it prompted hopkins to get out of the srs business and over the next few years every other teaching hospital also left the field denny supra if we needed to opine on the medical necessity of srs some sensitivity to that academic con- troversy particularly the problem of how to set up a proxy control group for those undergoing sex reassignment as well as some sensitivity to defining and measuring the effective- ness of surgery would have to be shown i do not believe we should have addressed the issue there is however a related cluster of problems that judges and lawyers have had to solve-questions of the med- ical necessity of srs in eighth amendment prisoner cases erisa litigation and medicaid and medicare reimbursement some research hospitals stanford among them will perform srs on a referral basis-but the clinical research on srs at these hospitals has been shut down levy two transsexuals reflect on university’s pioneering gender dysphoria program stanford rep date there has been at least one study that reached a different conclusion using a somewhat simi- lar methodology see mate-kole et al a controlled study of psychological and social change after surgical gender reassignment in selected male transsexuals brit j psychiatr there have also been numerous studies without controls or the sort of quasi-controls that meyer used that report transsexual persons generally satisfied with the results of srs such studies are as problematic as would be drug studies without double-blind control groups the question is further complicated by the possibility that different types of transsexuals see blanchard typology of male-to-female transsexualism archives sexual behav will experience different outcomes as might female-to-male transsexuals compared to male-to-female transsexuals see generally cohen-kettenis gooren supra pincite my point is not to pick meyer over mate-kole but only to suggest the problem is much more complicated than the majority lets on it is certainly beyond the competence of tax judges the feelings on both sides may cause the controversy to slip out of science altogether and land in the politics of the apa as it prepares the next edition of the dsm see carey psychia- try’s struggle to revise the book of human troubles n y times date at a1 describ- ing petition campaigns to affect membership of drafting group and disputes among transgendered persons about whether gid should even be classified as a disorder verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports the majority correctly cites the decisions of seven circuit courts that have concluded gid constitutes a serious medical need for purposes of the eighth amendment majority op p while confirming that gid is a profound psychiatric dis- order see eg 131_f3d_670 7th cir no circuit_court has in this area held that srs- or even the less-invasive hormone therapy-is a medically necessary treatment for gid at least one has even empha- sized that there is no right to any particular type of treat- ment such as estrogen therapy 821_f2d_408 7th cir citing 792_f2d_958 10th cir in which the court refused to hold that a prison’s decision not to provide a self-injuring prisoner with estrogen violated the eighth amendment as long as some form of treatment for gid was provided 633_fsupp_351 d kan finding prison officials were not constitutionally required to provide pris- oner with specific treatment requested of hormones and srs judge posner’s summary of the gid-prisoner cases is instruc- tive does it follow that prisons have a duty to administer if the prisoner requests it srs to a prisoner who unlike maggert is diagnosed as a genuine transsexual the cases do not answer yes but they make the question easier than it really is by saying that the choice of treatment is up to the prison the implication is that less drastic and not incidentally less costly treatments are available for this condition maggert f 3d pincite citations omitted the medical necessity of srs shows up in erisa litigation as well see eg 313_f3d_758 2d cir mario a female-to-male transsexual sued for reimbursement of the cost of his sex-reassignment sur- gery from his employer’s erisa-governed health insurance plan the plan_administrator denied his claim for lack of medical necessity based on an investigation that included the following r esearch on the issue of transsexualism inquiry into the policies of other employers and insurance carriers concerning coverage of gender reassign- ment procedures consultation with medical centers having specialized knowledge of transsexualism and sexual reassignment surgeries and con- sultation with medical personnel employed by the plan_administrator including a psychiatrist retained by the plan_administrator dr ivan fras dr fras opined that the surgical removal of healthy organs for no verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner purpose other than gender dysphoria would fall into the category of cos- metic surgery and would therefore not be medically necessary on the basis of her investigation the plan_administrator employee con- cluded that there was substantial disagreement in the medical community about whether gender dysphoria was a legitimate illness and uncertainty as to the efficacy of reassignment surgery id pincite the plan administrator’s srs-lacks-medical- necessity conclusion survived de novo review by the second circuit medicare’s administrator-the centers for medicare and medicaid services-has weighed in on the issue by denying reimbursement for srs on the following basis because of the lack of well controlled long term studies of the safety and effectiveness of the surgical procedures and attendant therapies for transsexualism the treatment is considered experimental moreover there is a high rate of serious complications of these surgical procedures for these reasons transsexual surgery is not covered fed reg date the legal issues presented in each of these clusters of cases differ from the legal question-are o’donnabhain’s proce- dures deductible under sec_213 -that we face in this case but i think they illustrate the majority’s overreach in finding srs medically necessary iii i do not think that highlighting what i think is the incor- rect interpretation of the code by the majority is enough o’donnobhain carefully argued in the alternative and it is to those alternative arguments that i now turn a i start back at the beginning with sec_213 which defines medical_care to include not just amount sec_11 some cases hold that states cannot categorically exclude sex-change operations from med- icaid coverage 623_f2d_546 8th cir j d v lackner cal rptr ct app g b v lackner cal rptr ct app doe v minn dept of pub welfare n w 2d minn over time these decisions have been over- taken by regulation or statute see eg 249_f3d_755 8th cir upholding regulation overturning pinneke as reasonable until recently minnesota was the only state in which medicaid paid for srs price min- nesota using medicaid funding to pay for sex-change operations wash times date at a4 but four years ago it joined the rest of the states minn stat ann sec 256b subd 3a west verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports paid for the diagnosis cure mitigation treatment or prevention or disease but also amounts paid for the pur- pose of affecting any structure or function of the body the commissioner actually stipulated that all three procedures o’donnabhain received that are at issue here-hormone treatment srs and breast augmentation-meet this alter- nate definition of medical_care this should have obviated the need to wade into the dis- putes about classification etiology and diagnosis of o’donnabhain’s gid the majority does cite one sentence from the applicable regulation for the proposition that med- ical care is confined to expenses ‘incurred primarily for the prevention or alleviation of a physical or mental defect or ill- ness ’ majority op p quoting sec_1_213-1 income_tax regs but that sentence doesn’t apply to the second type of medical care-lest it be somehow read to over- turn even the irs’s settled opinion that procedures as diverse as abortion revrul_73_201 1973_1_cb_140 vasectomies id and face lifts revrul_76_332 1976_2_cb_81 qualify as medical_care because they affect a structure or function of the body that’s what the first sentence of sec_1 e ii income_tax regs says is there therefore the expenses o’donnabhain incurred qualify as medical_care under sec_213 but are they nondeductible cosmetic_surgery little doubt that b at improving under sec_213 it is a necessary condition for characterization as cosmetic_surgery that a procedure be directed appearance o’donnabhain urges us to find that her procedures were directed at resolving or reducing the psychological distress at feeling herself trapped in a body of the wrong sex the commissioner says that may be true but the procedures involved obviously changed her appearance patient’s the here’s what the commissioner stipulated petitioner’s sex reassignment surgery affected structures or functions of petitioner’s body petitioner’s prescription hormone therapy affected structures or functions of petitioner’s body and petitioner’s breast augmentation surgery af- fected structures or functions of petitioner’s body the sentence quoted by the majority is in context aimed at distinguishing expenses aimed directly rather then remotely at preventing or alleviating illness it is immediately followed by a list of expenses that are per se medical-care expenses and which includes surgery and pre- scription drugs like hormones that o’donnabhain received verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner there is no regulation helping us to apply this language we need to use the traditional judicial tools to do so this first requires us to parse the meaning of directed at and improving directed at as a phrase is nowhere else in the code and is not a specialized legal or tax term but it has a common meaning of focused at or concentrating on improving is likewise a word in ordinary use meaning to enhance or make more desirable webster’s third new international dictionary the legislative_history of the provision which the majority quotes lists some of the procedures that congress aimed at including in the presumptively nondeductible category under the provision procedures such as hair removal electrolysis hair transplants lyposuction sic and facelift operations generally are not deductible in contrast expenses for procedures that are medically nec- essary to promote the proper function of the body and only incidentally affect the patient’s appearance or expenses for the treatment of a dis- figuring condition arising from a congenital abnormality personal injury or trauma or disease such as reconstructive surgery following removal of a malignancy continue to be deductible majority op note the list isn’t in the code itself so it’s not quite right to hold we must apply the maxim of ejusdem generis but it is helpful in suggesting the meaning of the key words that did make it into law without more specific guid- ance from the secretary in the form of a regulation i would conclude that directed at improving reflects two concepts the first is that the subjective motivation of the patient his focus is important and it is his primary motivation that is most important the second is that the notion of improving suggests a baseline from which something is improved-all the procedures in the committee’s list are those commonly recognized by the average observer in our society as improving appearance in a way that a biological man’s taking female hormones and undergoing extensive genital surgery do not i also concur with the majority that the breast surgery did not treat disease i therefore end up in the same place as the majority o’donnabhain’s hormone treatment and srs established a biological baseline of a new sexual appearance for her it was of course foreseeable and she intended to change her appearance but i also agree with her as the majority does that her purpose was to relieve the pathological anxiety or verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports distress at being biologically male or alternatively at not feeling masculine majority op note hormones and srs are i would hold as a general matter in such cases directed at treating gid in this sense and do not so much improve appearance as create a new one but surgery the breast-augmentation is different o’donnabhain’s new baseline having been established through hormones i would hold that that surgery was directed at improving-in the sense of focused on changing what she already had-her already radically altered appear- ance denying the deduction for this procedure while allowing it for the hormones and srs also seems a reasonable distinction-breast surgery is likely one of the commonest types of cosmetic_surgery and if not undergone after cancer surgery or trauma or the like highly likely to be within the common public meaning of that phrase that leaves only the question of whether o’donnabhain’s breast-augmentation surgery meets one of the exceptions to the nondeductibility of cosmetic_surgery listed in subsection d a this is easy-o’donnabhain never argued her breasts were deformed by a congenital abnormality a per- sonal injury resulting from an accident or trauma or dis- figuring disease i therefore respectfully concur with majority’s result if not its reasoning goeke j agrees with this concurring opinion goeke j concurring in the result only although i concur in the result reached by the majority i respectfully disagree with the majority’s analysis of sec_213 whether and to what extent deductions shall be allowed depends upon legislative grace and only as there is clear provision therefor can any particular deduction be allowed 292_us_435 as a general_rule personal living or family_expenses are not deductible sec_262 as an exception to that general_rule petitioner relies on sec_213 which allows a deduction for expenses paid for medical_care sec_213 defines deductible medical_care to include the diagnosis cure mitigation treatment or prevention of disease or for verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner the purpose of affecting any structure or function of the body we have consistently construed the medical_expense_deduction narrowly for over years 44_tc_39 magdalin v commissioner tcmemo_2008_293 this case turns on whether petitioner’s claimed deductions are barred by the exclusion in sec_213 if medical deductions are construed narrowly it follows that statutory exclusions from medical deduction should be construed broadly this case presents the question whether the cost of surgery to alter nondisfigured healthy tissue is deductible when the surgery is performed to address a mental disorder or disease sec_213 provides cosmetic_surgery - a in general -the term medical_care does not include cosmetic_surgery or other similar procedures unless the surgery or procedure is necessary to ameliorate a deformity arising from or directly related to a congenital abnormality a personal injury resulting from an accident or trauma or disfiguring disease b cosmetic_surgery defined -for purposes of this paragraph the term cosmetic_surgery means any procedure which is directed at improving the patient’s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease the majority opinion relies on two of the last four words to the exclusion of the rest of sec_213 in allowing a deduction for petitioner’s genital surgery by concluding that petitioner suffered from a disease and that the genital surgery in question treated that disease the definition of cosmetic_surgery in subparagraph b begins with surgery directed at improving the patient’s appearance the transformation of petitioner’s genitals was not directed at improving petitioner’s appearance but rather was functional the authorities cited in the majority opinion for the proposition that genital surgery to treat gid is not cosmetic_surgery support this conclusion see eg 849_f2d_322 8th cir given the factual findings supporting the medical purpose of such surgery it is therefore deductible as medical_care under sec_213 and is not excluded by sec_213 because it is not cos- metic surgery on that basis i concur in the majority’s allowing petitioner a deduction for genital surgery verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports similar procedure under having concluded that petitioner’s genital surgery is not cosmetic i would reject the notion that it is nevertheless excluded as a sec_213 such a reading would negate the import of the definition of cosmetic_surgery in subparagraph b rather i believe similar procedures in subparagraph a refers to procedures directed at improving appearance that are not necessarily considered surgical accordingly petitioner’s hor- mone therapy is not a similar procedure under sec_213 because it was in support of petitioner’s genital surgery and was not directed at improving petitioner’s appearance on the other hand botox injections would be an example of a similar procedure in my view i disagree with the majority opinion because it leaves open the possibility that expenses for surgery directed solely at altering physical appearance may nevertheless be deductible if it is intended to alleviate mental pain and suffering i do not read the word in the context of sec_213 to include physically altering a patient’s appear- ance to relieve extreme mental distress therefore i would hold that the breast surgery is excluded cosmetic_surgery under sec_213 as a matter of law and to this extent i agree with judge gustafson’s concurring in part and dis- senting in part opinion treat i would read the statute in conformity with the legislative_history i believe that the word treat in the context of the cosmetic_surgery exclusion implies that for expenses for any procedure to be deductible the procedure must address a physically related malady if surgery to relieve mental suf- fering without a physical nexus is deductible a line is crossed from physical to mental treatment a court should not cross that line in applying sec_213 any expansion of the medical_expense_deduction should be addressed by con- gress because it is not clear that surgery which does not address a physical condition is deductible under sec_213 the majority holds that the line on deductibility for mental conditions has been crossed in general and that evolving mental diagnoses are considered diseases for purposes of sec_213 i think this argument overlooks the nature of the exclusion in paragraph the standard for deduct- ibility under sec_213 is inherently more generous verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner than that in subsection d congress enacted sec_213 in response to irs interpretations of medical_care as including procedures that permanently altered any struc- ture of the body even if the procedure was considered to be an elective purely cosmetic treatment as the majority points out majority op note the impetus for sec_213 was the senate the senate_finance_committee report stated under the provision procedures such as hair removal electrolysis hair transplants lyposuction sic and facelift operations generally are not deductible in contrast expenses for procedures that are medically nec- essary to promote the proper function of the body and only incidentally affect the patient’s appearance or expenses for the treatment of a dis- figuring condition arising from a congenital abnormality personal injury or trauma or disease such as reconstructive surgery following removal of a malignancy continue to be deductible there is no indication that the exclusion of surgery directed at improving appearance omits surgery related to helping a person feel differently about himself or herself even if such a change in feelings relieves mental suffering the above- quoted language from the senate_finance_committee report indicates that congress intended to allow deductions only for cosmetic_surgery to correct physical maladies resulting from disease or physical disfigurement as opposed to cosmetic sur- gery on healthy tissue the report uses malignancy as an example of a disease which can cause a deformity requiring cosmetic_surgery which would be deductible accepting that the alteration of physical appearance can be a remedy to address a mental illness the question remains whether deductions for such treatment are barred by a spe- cific legislative mandate i would hold that the breast sur- gery in this case is not medically necessary as that term is applied in deciding whether an expense is excluded under sec_213 the nuances of feminine appearance are virtually without bounds and expenses for efforts to conform petitioner’s entire body to a feminine ideal are indistinguish- able from excluded expenses regardless of petitioner’s mental health in other contexts there is little question that deductions for breast augmentation or facial reconstruction surgery apart from physical disease or disfigurement or physical abnor- mality would be barred by sec_213 the issue is verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports whether congress intended to allow deductions for those sur- geries if done to relieve a mental disease or illness i remain unconvinced that congress intended to permit deductions for such surgery directed at appearance and not directed at physical disfigurement or physical dysfunction or physical disease to accept that deductibility is possible under dif- ferent facts is to entertain that all forms of cosmetic_surgery will be deductible medical_expenses if the surgery addresses or relieves mental suffering caused by a recognized mental disorder i do not agree that the statute read in its entirety permits such deduction holmes j agrees with this concurring in the result only opinion foley j concurring in part and dissenting in part pre- occupied with establishing whether gender identification dis- order gid is a disease respondent and the majority fail to correctly explicate and apply the statute in allowing deduc- tions relating to petitioner’s expenses the majority has per- formed on congressional intent interpretive surgery even more extensive than the surgical procedures at issue-and respondent has dutifully assisted this judicial trans- formation of sec_213 is more than cosmetic i the majority does not adhere to the plain language of sec_213 sec_213 provides in part cosmetic_surgery - a in general -the term medical_care does not include cosmetic_surgery or other similar procedures unless the surgery or procedure is necessary to ameliorate a deformity arising from or directly related to a congenital abnormality a personal injury resulting from an accident or trauma or disfiguring disease b cosmetic_surgery defined -for purposes of this paragraph the term cosmetic_surgery means any procedure which is directed at improving the patient’s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease emphasis added i concur with the majority’s conclusion that petitioner’s breast augmentation surgery is cos- metic surgery but disagree with the majority’s reasoning ie conclusion that failure to strictly adhere to the benjamin standards constitutes failure to treat gender identification disorder and interpretation of the statute verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner the majority states that sec_213 excludes from the definition any procedure emphasis added that pro- motes bodily function or treats a disease see majority op p the statutory definition however prescribes what is included not excluded from the definition of cosmetic sur- gery the statute sets forth a two-part test a procedure is cosmetic_surgery if it is directed at improving appearance and does not meaningfully promote proper bodily function or prevent or treat illness or disease part two of the test is disjunctive not conjunctive a procedure directed at improving the patient’s appearance is cosmetic_surgery if it either does not meaningfully promote the proper function of the body or does not prevent or treat illness or disease thus if petitioner’s procedures are directed at improving appearance and do not meaningfully promote the proper function of the body they are cosmetic_surgery with- out regard to whether they treat a disease the majority does not address either of these prongs but instead asserts that these prongs are irrelevant if the procedures treat a disease see majority op note the majority’s analysis proceeds as if the statute employs and rather than or between the meaningfully promote the proper function of the body and prevent or treat illness or disease prongs respondent appears to agree with this interpretation in lieu of a plain reading of the statute in essence the majority and respondent engage in reconstruc- tion rather than strict construction of sec_213 according to their interpretation a procedure will be treated as cosmetic_surgery only if it meets all three prongs ie it is directed at improving appearance does not promote proper bodily function and does not prevent or treat illness or dis- ease simply put the fact that a procedure treats a disease is not sufficient to exclude the procedure from the definition of cosmetic_surgery indeed to adopt the majority’s reasoning and its accompanying conclusion the court must ignore that congress in sec_213 specifically provides that the term medical_care will include cosmetic_surgery or other while use of the conjunctive ‘and’ in a list means that all of the listed requirements must be satisfied use of the disjunctive ‘or’ means that only one of the listed requirements need be satisfied kim statutory interpretation general principles and recent trends crs re- port for congress updated date verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports similar procedures if the surgery or procedure is necessary to ameliorate a deformity arising from or directly related to a disfiguring disease emphasis added if any proce- dure that treats a disease ie as the majority broadly inter- prets that phrase see majority op p is automatically carved out from the definition of cosmetic_surgery then the sec_213 specific exclusion relating to procedures that ameliorate a deformity arising from a disfiguring dis- ease is superfluous see 534_us_19 stating that it is ‘a cardinal principle of statutory construction’ that ‘a statute ought upon the whole to be so construed that if it can be prevented no clause sentence or word shall be superfluous void or insignificant ’ quoting 533_us_167 congress in sec_213 readily acknowledges that certain proce- dures which treat disease may be cosmetic and ensures that these procedures will nevertheless be deemed medical_care if they ameliorate a deformity sex reassignment surgery srs and the accompanying procedures did not make the list judge halpern asserts that this analysis disregards the rules of grammar and logic and that de morgan’s laws dic- tate the majority’s holding halpern op p if there is a negation of the conjunction or de morgan’s laws convert or to and judge halpern’s mechanical application of de morgan’s laws is not prudent simply put congressional intent is not subservient to de morgan’s laws courts dealing with statutes that contain the negation of a conjunction have employed interpretive principles to ensure adherence to con- gress’ plain language in short sec_213 must be this tension between congress’ plain language and de morgan’s laws was evident in the in- terpretation of a property forfeiture statute which contained the negation of a conjunction ie without the knowledge or consent see u s c sec_881 710_fsupp_46 e d n y cf 911_f2d_870 2d cir rather than applying de morgan’s laws and interpreting the statu- tory language to mean without the knowledge and without the consent the district_court fol- lowed legislative intent adhered to a plain reading and interpreted the language to mean without the knowledge or without the consent united_states v liberty ave supra pincite the court held under normal canons of statutory construction the court must give effect to congress’ use of the word or by reading the terms knowledge and consent disjunctively if congress had meant to require a showing of lack of knowledge in all cases as sug- gested by the government it could have done so by replacing or with and id to apply de morgan’s laws and ignore the plain language of the statute would have been impru- dent because as one commentator accurately opined we have no way of telling whether the drafters of the statute intended that de morgan’s rules apply or not solan the language of verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner interpreted with cognizance of the fact that this section was enacted by a congress intent on limiting deductions for procedures directed at improving appearance and that augustus de morgan was not a member of the 101st con- gress ii the legislative_history provides no support for the deduction of petitioner’s expenses the lack of unanimity among my colleagues may suggest that sec_213 is ambiguous and thus resort to legisla- tive history may be appropriate see 123_tc_219 affd 137_fedappx_373 1st cir the sparse legislative_history accompanying the enactment of sec_213 is quite illuminating there is certainly no indication that congress sought to pre- serve a deduction for expenses relating to srs and the accom- panying procedures to the contrary the legislative_history states that congress intended to preserve deductions relating to expenses for procedures that are medically necessary to promote the proper function of the body and only incidentally affect the patient’s appearance or expenses for treatment of a disfiguring condition arising from a congenital abnormality personal injury or trauma or disease such as reconstructive surgery following removal of a malignancy cong rec emphasis added expenses relating to srs and the accompanying procedures again did not make the list iii even if not cosmetic_surgery petitioner’s procedures may be similar to cosmetic_surgery sec_213 provides that the term ‘medical care’ does not include cosmetic_surgery or other similar procedures unless the surgery or procedure is necessary to ameliorate a deformity arising from or directly related to a congenital abnormality a personal injury resulting from an accident or trauma or disfiguring disease emphasis added assuming arguendo that the majority’s analysis of sec_213 is correct petitioner must nevertheless establish that srs and the accompanying procedures are not similar to cos- judge sec_45 sec_52 see generally id pincite discussing how courts have dealt with statutes containing the negation of and and or verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports metic surgery the majority does not expound on this issue but states by arguing that the hormone therapy was directed at improving peti- tioner’s appearance and did not treat an illness or disease respondent con- cedes that a similar procedure as used in sec_213 is delimited by the definition of cosmetic_surgery in sec_213 b -that is that a similar procedure is excluded from the definition of medical_care if it is directed at improving the patient’s appearance and does not meaning- fully promote the proper function of the body or prevent or treat illness or disease majority op note emphasis added this analysis of the statute is simply wrong the term similar procedures is not delimited by the definition of ‘cosmetic surgery’ in sec tion d b while it is arguable that it could be defined in this manner that is not what the statute provides cosmetic_surgery is defined in sec_213 but there is no statutory or regulatory guidance regarding what constitutes similar procedures respondent who has the authority to promulgate guidance defining latitude regarding his litigation position inexplicably conceded this issue with respect to the hormone therapy treatment and apparently failed to make this contention with respect to the srs similar procedures and has broad sec_213 provides a potentially broad disallow- ance of expenses relating to procedures intended to improve a taxpayer’s appearance-a disallowance so broad that con- gress provided exceptions set forth in sec_213 to ensure that certain procedures which address deformities were deemed medical_care the parties have stipulated that petitioner’s procedures did not ameliorate a deformity even if srs and the accompanying procedures fail to meet the defi- nition of cosmetic_surgery it is arguable that these proce- dures are similar to cosmetic_surgery not medical_care and thus not deductible iv congressional activity rather than respondent’s litiga- tion laxity should determine deductibility apparently respondent but not congress readily concedes that a procedure ie directed at improving appearance but not meaningfully promoting proper bodily is excluded from the definition of cosmetic_surgery if it treats function verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner a disease in addition respondent but not congress appears to concede that if petitioner’s procedures fail to meet the defi- nition of cosmetic_surgery these procedures also fail to qualify as similar procedures see majority op note in short respondent fails to adhere to the plain meaning of the statute if respondent is comfortable however with his cur- rent interpretation of the statute and the accompanying liti- gating position i offer a word of advice- katy bar the door wells vasquez kroupa and gustafson jj agree with this concurring in part and dissenting in part opinion gustafson j concurring in part and dissenting in part i concur with the result of the majority opinion to the extent that it disallows a medical_care deduction under sec_213 for breast enhancement surgery but i dissent to the extent that the majority allows a deduction for genital sex reassign- ment surgery petitioner is the father of three children from a marriage that lasted years although physically healthy he was unhappy with his male anatomy and became profoundly so to the point of contemplating self-mutilation mental health professionals diagnosed him as suffering from gender identity disorder gid with their encouragement he received medical procedures in years before the year at issue here he received injections of female hormone sec_1 and under- went facial surgery and other plastic surgery and then in the year at issue he paid a surgeon about dollar_figure to remove his genitals fashion simulated female genitals and insert breast implants after these procedures petitioner passed as female and became happier she claimed an income_tax deduction for the cost of this sex reassignment surgery srs the question in this case is whether sec_213 allows this deduction in the year at issue petitioner received dollar_figure of hormone injections the majority allows that deduction along with the deduction for genital sex reassignment surgery i assume that the hor- mone injections are similar to cosmetic_surgery and should therefore be disallowed under sec_213 but i do not further address this de_minimis deduction consistent with petitioner’s preference i use feminine pronouns to refer to petitioner in her post-srs state however this convention does not reflect a conclusion that petitioner’s sex has changed from male to female verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports i non-issues the surgical procedures involved in this case are startling and to avoid distraction from the actual issues it is expe- dient to affirm what is not at issue here neither the tax col- lector nor the tax_court sits as a board_of medical review as if it were reconsidering validating or overruling the med- ical profession’s judgments about what medical_care is appro- priate or effective for what medical conditions likewise nei- ther the tax collector nor the tax_court passes judgment on the ethics of legal medical procedures since otherwise deductible medical_expenses are not rendered non-deductible on ethical grounds see eg revrul_73_201 1973_1_cb_140 cost of legal abortion held deductible under sec_213 rather we decide only a question of deductibility for income_tax purposes in sec_213 congress created a deduction for medical_care thereby implicitly but nec- essarily importing into the internal_revenue_code principles that rely in part on the judgments of the medical profession medical_care that is given pursuant to medical consensus might later prove to have been unfortunate or even disas- trous such as thalidomide prescribed for morning sickness but an eventual discovery that the care was ill advised would not affect the deductibility of that care for income_tax pur- poses to determine deductibility under sec_213 we determine whether a procedure is medical_care as defined in that statute not whether we would or would not endorse it as appropriate care neither the irs nor the tax_court was appointed to make such medical endorsements consequently i accept the majority’s conclusions based on expert medical testimony describing medical consensus that gid is a serious mental condition that petitioner suf- fered from it that the medical consensus favors srs for a gid patient like petitioner that srs usually relieves the patient’s suffering to some significant extent and that srs was pre- scribed to and performed on petitioner in accord with pre- vailing standards of medical_care the majority opinion acknowledges that in the psychiatric community there is a minority view that srs is unethical and not medically necessary majority op note citing testimony referring date http www firstthings com index php online edition majority op p see also holmes op pts i b and ii b however if psychiatry has an intramural dispute about srs it will not be arbitrated by persons trained in tax law surgical sex first things to paul mchugh verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner however congress did not cede to doctors the authority to grant tax deductions as the majority acknowledges majority op p medical experts do not decide the interpretation of the terms in sec_213 rather statutory interpretation is the domain of the courts although informed by medical opinion on the medical matters pertinent to medical exper- tise the court alone performs the judicial task of deter- mining the meaning of a statute and applying it to the facts of the case before us on the basis of the record before us my disagreement with the majority concerns the interpretation and application of sec_213 by which congress delib- erately denied deductibility for cosmetic_surgery or other similar procedures ii m edical care cosmetic_surgery and other similar procedures in sec_213 as a general_rule personal living or family_expenses are not deductible sec_262 as an exception to that general_rule congress enacted in a deduction for expenses paid for medical_care sec_213 but in congress carved out and declared non-deductible cosmetic_surgery or other similar procedures sec_213 we decide today whether srs is deductible medical_care or instead is non- deductible cosmetic_surgery or other similar procedures whether and to what extent deductions shall be allowed depends upon legislative grace and only as there is clear provision therefor can any particular deduction be allowed 292_us_435 emphasis added this case therefore requires us to deter- mine whether there is clear provision for the deduction of srs expenses i conclude that sec_213 is anything but clear in allowing such a deduction a the language of sec_213 the definition of deductible medical_care in sec_213 and the definition of non-deductible cosmetic_surgery in the exception in subsection d b must be con- strued in tandem the subsection reads in part as follows emphasis added sec_213 definitions -for purposes of this section- the term medical_care means amounts paid- verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports a for the diagnosis cure mitigation treatment or prevention of disease or for the purpose of affecting any structure or function of the body cosmetic_surgery - a in general -the term medical_care does not include cosmetic_surgery or other similar procedures unless the surgery or procedure is necessary to ameliorate a deformity arising from or directly related to a congenital abnormality a personal injury resulting from an accident or trauma or disfiguring disease b cosmetic_surgery defined -for purposes of this paragraph the term cosmetic_surgery means any procedure which is directed at improving the patient’s appearance and does not meaningfully pro- mote the proper function of the body or prevent or treat illness or dis- ease thus in medical_care was defined in subsection d a with two alternative prongs-first a list of five modes of care for disease ie diagnosis cure mitigation treatment or prevention and second care that affect s any structure or function of the body petitioner contends that srs is not directed at improving the patient’s appearance for pur- poses of sec_213 respondent contends that it is and the majority concludes majority op note that it need not resolve the issue on this basis however judge goeke’s concur- rence would allow a deduction for the genital srs because it was not directed at improving petitioner’s appearance but rather was functional goeke op p his concurrence thus right- ly discerns that sec_213 distinguishes improving appearance from promot ing proper function emphasis added but there is no basis for the conclusion that srs is functional petitioner’s srs did not involve any attempt to confer female reproduc- tive function no one undertaking to promote sexual function would perform a penectomy and a castration on a healthy male body on the contrary srs drastically terminates a male patient’s functioning sexuality srs did not change petitioner into a function ing female but removed his salient male characteristics and attempted to make him resemble a woman-ie by petitioner’s lights to improve the patient’s appearance the majority shows that the srs surgeon does try to salvage as much as possible some possibility for subsequent sexual re- sponse majority op p and observes that srs alter s appearance and to some degree function majority op p emphasis added but the majority makes no finding that peti- tioner proved that any identifiable portion of the srs expense can be allocated to restoration of function on our record petitioner’s srs must be said to have been directed at improving appearance rather than promoting function and it is therefore within the definition of cosmetic_surgery judge holmes’s concurrence on the other hand attempts no analysis of function versus appearance but rather proposes a different distinction not explicit in the statute he would hold that srs did not so much improve petitioner’s male appearance as create a new female one holmes op p emphasis added this ingenious distinction if accepted might well undo the disallowance of deductions for cosmetic_surgery since plastic surgery is often mar- keted and purchased on the grounds that it supposedly creates a new appearance but in fact any surgery that gives the patient a new appearance has thereby improved the patient’s former appearance and is cosmetic_surgery under sec_213 the five terms employed to define medical_care for income_tax purposes in were bor- rowed from the definitions of drug and device added in to the federal trade commis- sion act by the federal trade commission act amendments of ch sec_4 52_stat_114 currently codified pincite u s c sec_55 d the same five terms currently appear in virtually identical definitions of medical_care in u s c sec 1191b a a for verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner in the concepts of both these prongs were narrowed in subsection d b for the purpose of creating a limited exception to the new disallowance of cosmetic_surgery or other similar procedures that is appearance-improving procedures were declared to be non-deductible cosmetic sur- gery but the definition given for that term provides a two- prong exception these appearance-improving procedures are nonetheless deductible under d b ie are not cosmetic_surgery if they meaningfully promote the proper function of the body ie not if they affect any structure or func- tion of the body as more broadly allowed in d a and are nonetheless deductible under d b if they prevent or treat disease ie not if they provide diagnosis cure miti- gation treatment or prevention of disease as more broadly allowed in d a two features of this statutory language that are virtually overlooked in the majority opinion should be noted first sec_213 disallows deductions for cosmetic sur- gery or other similar procedures emphasis added that is expenses for a procedure that falls outside cosmetic_surgery as defined in subsection d b may still be disallowed if the procedure is similar to cosmetic_surgery congress thus enacted this disallowance in such a way that splitting hairs in order to find a procedure not to be within the spe- cific definition of cosmetic_surgery in d b may not and should not save the day for its deductibility rather deduct- ibility must be denied under d a if the non- cosmetic_surgery procedure is nonetheless similar to cosmetic sur- gery second assuming that subsection d b permits deduct- ibility if not both but only one of its prongs is satisfied ie if a procedure only prevent s or treat s it must be noted purposes of group_health_plans under erisa and u s c sec 300gg-91 a for pur- poses of requirements relating to health_insurance_coverage they also appear in definitions of drug and device in u s c sec g b and h and in the definitions of radiologic procedure and radiologic equipment in u s c sec and they appear in their verb forms in u s c sec_247d-6d i a defining qualified pan- demic or epidemic product and u s c sec r restricting statements about die- tary supplements they appear as adjectives and gerunds along with therapeutic and reha- bilitative in sec_7702b defining qualified_long-term_care_services thus this fivefold list is not unique to the internal_revenue_code the majority like the parties interprets subsection d b to permit deductibility if a pro- cedure does not meaningfully promote but does prevent or treat and the majority evaluates the expenses only under that second prong to determine whether the procedures at issue here continued verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports that this second prong in subsection d b has only two terms- prevent and treat -from among the list of five possible modes of medical_care in subsection d a i now turn to the significance of that wording b the different terminology of subsections d a and d b as is noted above medical_care is defined in subsection d a by five terms-ie diagnosis cure mitigation treatment or prevention some of these terms do have some overlapping shades of meaning and it seems likely that when this medical_care deduction was first enacted in congress simply intended to enact a broad definition of med- ical care and therefore chose terms to convey that breadth without particular intention about the potential distinctive meanings of those terms the distinctive meanings would have been irrelevant under the general provision that allowed the deduction if any of these modes of care was pro- vided that is if a medical procedure was a treatment but not a mitigation or was a mitigation but not a treat- ment the expense would be deductible nonetheless under sec_213 however we consider here the very different and specific congressional intent years later in when congress enacted subsection d to disallow deductions for cosmetic_surgery congress provided an exception to this new dis- allowance and allowed a deduction in the case of an other- wise cosmetic procedure if it prevent s or treat s illness or disease sec_213 emphasis added according to this subsection an otherwise cosmetic procedure will yield a deduction if it prevent s or treat s disease-ie two modes of care missing from this short list of deductible modes of care in subsection d b as we have already noted are three of the five terms in subsection d a including mitigation the congress was thus under- do treat disease but see the opinion of judge foley interpreting the definition in subsection d b to disallow deductions for appearance-improving procedures unless a procedure both meaningfully promote s the proper function of the body and prevent s or treat s disease the majority does not undertake to demonstrate that srs meaningfully promote s the proper function of the body and if the statute requires that both prongs be satisfied then srs must therefore be non-deductible in this partial dissent however i assume arguendo that only one prong need be satisfied and i show that even so contrary to the majority’s conclusion srs does not prevent or treat gid and therefore cannot be deductible even under the majority’s one- prong analysis verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner taking to provide a limited exception to its new disallowance and in so doing it was selective in choosing from the vocabu- lary at hand under the wording congress adopted if an otherwise cosmetic procedure mitigates a disease but cannot be said to treat or prevent it then under the plain terms of the statute one would have to conclude that the expense of that procedure is non-deductible congress provided that to be deductible an otherwise cos- metic procedure must prevent or treat a disease petitioner did not argue and the majority does not hold that srs pre- vents gid rather srs is offered only to persons who already suffer from the disorder for whom prevention would come too late so the contention must be that srs treats gid iii the meaning of treat in sec_213 the majority implicitly holds that prevent or treat in sec_213 is equivalent to or is shorthand for diagnos e cure mitigat e treat or prevent in sub- section d a and that no narrow meaning should be ascribed to treat admittedly it is possible to use the word treat in a loose manner that could include merely amelio- rating the effects of a disease in that loose sense one could say that srs treats gid by mitigating the unhappiness of the sufferer treatment and mitigation do appear side by side as modes of care in d a reflecting different shades of meaning of the more general word care and thus to some extent they are synonymous if they were such close synonyms as to be equivalent in meaning or if treat included mitigate then the absence of mitigate in d b would not be significant however ascribing this broad or loose meaning to treat disease is untenable under sec_213 where treat must be distinguished from mitigate and where the direct object is disease not patient or symptom as i now show by way of comparison the absence of cure from sec_213 is apparently not sig- nificant because of the relationship of treat and cure treat is a broader word that includes cure that is although not everything that treats a disease undertakes to cure it any pro- cedure that does cure a disease necessarily treats it verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports a to yield a deduction an appearance-improving proce- dure must treat disease as opposed to effecting mitigation subsection d b does not provide that appearance- improving procedures are deductible if they prevent treat or mitigate a disease but rather if they prevent or treat disease the majority’s leading definition of treat majority op p taken from webster’s new universal unabridged dictionary is to deal with a disease patient etc in order to relieve or cure and the same dictionary’s definition of mitigate is- to lessen in force or intensity as wrath grief harshness or pain mod- erate to make less severe to make a person one’s state of mind disposition etc milder or more gentle mollify appease a usage note observes that the central meaning of miti- gate is ‘to lessen’ or ‘make less severe’ thus the two words treat and mitigate are by no means identical consequently a question directed toward treatment of a disease may ask using language from webster’s did the procedure deal with the disease or it may ask using lan- guage from 12_tc_409 emphasis added d id the treatment bear directly on the condition in question but a question about mitiga- tion may ask using language from webster’s did the procedure make the disease less severe or lessen pain and a comment that is framed in terms of mitiga- tion may speak of mitigation of the effects of his injury and disability pols v commissioner tcmemo_1965_222 24_tcm_1140 emphasis added our opinion in 41_tc_877 includes such usage of both these terms in starrett we held that psy- chiatric expenses were clearly ‘amounts paid for the diag- nosis cure mitigation treatment ’ and ‘prevention’ of a spe- cific ‘disease’ and we upheld the taxpayer’s argument that he underwent psychoanalysis- for the diagnosis of his emotional condition cure of a specific emotional disease classified as anxiety reaction mitigation of the effects upon him of such disease treatment of the underlying causes of his anxiety reaction and thereby the prevention of further suffering therefrom id emphasis added verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner when treat and mitigate are distinguished rather than being blended treatment addresses underlying causes and mitigation lessens effects i conclude that this distinction between treat and mitigate is critical to determining whether srs treats gid so as to render srs expenses deductible b to yield a deduction an appearance-improving proce- dure must treat disease as opposed to treating a patient or a symptom if the parties and the majority have in effect defined treat so broadly as to nearly encompass mitigate they may have done so by overlooking the fact that in sec_213 the object of the verb treat is disease the breadth of the dictionary definitions cited by the majority majority op p is attributable in part to the fact that one may treat a disease or a patient or a symptom con- sequently a general definition of treat that is not con- fined-as sec_213 is confined-to treatment of a disease should and will reflect shades of meaning appropriate for treatment of symptoms which shades of meaning overlap more with mitigate for that reason these general dic- tionary definitions are not very illuminating in this instance where the question is whether to treat disease is or is not the same as to mitigate disease as a part of medical_care one could treat a patient with palliative care or could treat his painful symptoms with morphine both of which could also be said to mitigate and the expenses of which would be deductible under sec_213 -all the while leaving his disease un- treated strictly speaking when congress intends to enact a provi- sion that turns on treatment of patients or on treatment of symptoms it knows how to do so but it did not do so see sec_168 emphasis added see also sec_5214 u s c sec u s c sec u s c sec 2151b-3 u s c sec 225g u s c secs u s c secs 238b 256e 280e 280g-6 280h-3 290dd-2 291o 300d-41 1320b-8 see u s c sec b c emphasis added see also u s c secs u s c secs 285o-4 d 300cc-3 1395i-3 1396r focusing on treatment of symptoms judge halpern emphasizes halpern op p emphasis added that petitioner’s expert pronounced petitioner cured even though petitioner’s belief about her sex was un- changed in the sense that the symptoms of the disorder were no longer present eg she had been free for a long time of clinically significant distress or impairment and judge halpern continued verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports in sec_213 which allows deductions for proce- dures that treat disease emphasis added if a procedure is said to treat disease then the treat- ment will bear directly on the condition in question havey v commissioner supra pincite or will deal with the disease as in webster’s other medical_care may be mitiga- tion but not treatment in defining cosmetic_surgery congress aimed to deny deductions that had previously been allowed if in the amended statute congress had allowed deductions for appearance-improving procedures that prevent treat or mitigate a disease then that broader exception might have undermined the intended limiting effect of the new disallow- ance the majority’s interpretation of subsection d b treats the statute as if congress had enacted that imaginary broader exception and its loose interpretation invites arguments for the deduction not only of gid patients’ srs expenses but also of the cosmetic_surgery expenses of any psychiatric patient who is or claims to be pathologically unhappy with his body in any event congress did not pro- vide that an appearance-improving procedure will nonethe- less be deductible if it merely mitigates a disease loose equates a removal of symptoms with a cure of the disease and therefore a treatment of the disease halpern op pp however when treatment of symptoms makes a psychiatric pa- tient content with his delusion he has not been cured and his disease has not been treat ed for purposes of sec_213 see diagnostic and statistical manual of mental disorders body dysmorphic dis- order bdd 4th ed text revision dsm-iv-tr the essential feature of body dysmorphic disorder historically known as dysmorphophobia is a preoccupation with a defect in appearance the defect is either imagined or if a slight physical anomaly is present the individual’s concern is markedly excessive the preoccupation must cause significant distress or impairment in social occupational or other important areas of functioning the entry for bdd in dsm-iv-tr is not in the record but the majority refers to dsm-iv-tr which all three experts agree is the primary diagnostic tool of american psychiatry majority op p and states that the u s supreme court has relied on a listing in the dsm in treating something as a serious medical_condition majority op note and i take judicial_notice of the bdd entry see eg 562_f3d_325 ndollar_figure 5th cir 979_f2d_396 6th cir whether bdd is a disease and whether cosmetic_surgery purportedly prescribed for it could be treat ment under sec_213 are questions yet to be litigated-if the majority’s broad interpretation of sec_213 prevails verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner c a looser interpretation of treat disease is not warranted in sec_213 the structure of subsection d b shows deliberate restriction in its terminology congress enacted sec_213 to restrict medical_care deductions by explicitly denying such deductions for cosmetic_surgery and similar procedures its terms must be under- stood by reference to that announced purpose consistent with that purpose subsection d b reflects as i have shown a narrowing of both prongs of the subsection d a definition of d a ’s affect any structure or function of the body was narrowed to become meaningfully promote the proper function of the body in d b and subsection d a ’s diagnosis cure mitigation treatment or prevention of disease was nar- rowed to become prevent or treat disease in d b where congress was explicitly setting out to shut down deductions for cosmetic_surgery the restricting language it employed can hardly be taken as careless or unintentional medical_care -ie sub sec_2 the stricter interpretation of subsection d b is con- sistent with d a because the particular question in this case is whether srs falls within the definition of cosmetic_surgery for which expenses are disallowed in subsection d b the majority gives short shrift to subsection d a subsection d a shows the sorts of exceptional procedures for which congress meant to preserve deductions-ie procedures that are nec- essary to ameliorate a deformity arising from or directly related to a congenital abnormality a personal injury resulting from an accident or trauma or disfiguring dis- ease -and thus illuminates the congressional purpose someone like petitioner who suffers from gid has no deformi- ties that are addressed by srs he has no congenital abnor- mality he has suffered no accident or trauma or dis- figuring disease there is thus no indication that congress explicitly intended to carve out from its new disallowance an exception that would reach srs expenses the wording choices in the statute that limit deductibility must be taken verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports at face value in order to vindicate the undisputed congres- sional purpose the majority not only ignores those implications of sub- section d a for the purpose of the statute but also ren- ders much of d a surplusage by its unduly loose interpretation of subsection d b subsection d a provides that even if a procedure is cosmetic_surgery as defined in d b its expenses will be deductible if inter alia the procedure ameliorate s a deformity arising from or directly related to disfiguring disease however if surgical procedures that mitigate the effects of disease thereby fall outside the definition of cosmetic_surgery ie because they are deemed to treat disease in the broad sense then subsection d a would describe an empty set when it refers to cosmetic_surgery that ameliorate s a deformity arising from disfiguring disease if the procedure ameliorate s and if to ameliorate is to treat then the procedure would not be cosmetic_surgery in the first place anything that ameliorates would be deductible because of the definition in d b and the allowance in d a would have no effect on the other hand if treat disease in subsection d b is given its precise meaning not excluding from cosmetic_surgery a procedure that only mitigates the effects of disease then d a would operate to allow a deduction for cosmetic_surgery that does not treat a disfiguring dis- ease but rather ameliorates deformities arising from it thus only the precise meaning of treat disease in d b har- monizes with the allowance in d a broader usage of the word treat by doctors does not affect its significance in sec_213 it appears that doctors sometimes use the word treat in this loose sense so that they discuss srs as a treatment for gid see majority op pt iii d however as the majority indicates majority op p the meaning of statutory terms is within the judicial province and we do not generally accept expert opinion on the meaning of statutory terms in testimony in this case doctors manifestly used the terms care and treatment almost interchangeably without par- ticular attention to whether it is the patient the symptoms verdate 0ct date jkt po frm fmt sfmt v files odonna sheila o’donnabhain v commissioner or the disease that is being addressed in sec_213 how- ever care is a general term of which treatment is a mode distinct from mitigation and deductible care is directed to disease or illness not to the patient or her symptoms there is thus no indication that doctors’ usage of these words respects the distinctions that are important in sec_213 with the foregoing understanding of the purpose and oper- ation of sec_213 i now address the question whether srs treats gid iv srs does not treat gid for purposes of sec_213 for the gid patient there is a dissonance between on the one hand his male body ie his male facial appearance his male body hair his male body shape his male genitalia his male endocrinology and the y chromosomes in the cells of his body and on the other hand his perception of himself as female the male body conflicts with the female self- perception and produces extreme stress anxiety and unhappiness one could analyze the gid patient’s problem in one of two ways his anatomical maleness is normative and his per- ceived femaleness is the problem or his perceived femaleness is normative and his anatomical maleness is the problem if one assumes option then one could say that srs does treat his gid by bringing his problematic male body into simulated conformity as much as is possible with his authentic female mind however the medical consensus as described in the record of this case is in stark opposition to the latter characteriza- tion and can be reconciled only with option petitioner’s male body was healthy and his mind was disordered in its female self-perception gid is in the jurisdiction of the psy- chiatric profession-the doctors of the mind-and is listed in that profession’s definitive catalog of mental disorders see dsm-iv-tr pincite when a patient presents with a healthy male body and a professed subjective sense of being female the medical profession does not treat his body as an anomaly as if it were infected by the disease of an alien maleness rather his male body is taken as a given and the patient becomes a psychiatric patient because of his dis- verdate 0ct date jkt po frm fmt sfmt v files odonna sheila united_states tax_court reports ordered feeling that he is female the majority concludes majority op p emphasis added that gid is a serious mental disorder -ie a disease in petitioner’s mind-and i accept that conclusion a procedure that changes the patient’s healthy male body in fact that disables his healthy male body and leaves his mind unchanged ie with the continuing misperception that he is female has not treated his mental disease on the con- trary that procedure has given up on the mental disease has capitulated to the mental disease has arguably even changed sides and joined forces with the mental disease in any event the procedure did not in the words of havey v commissioner t c pincite bear directly on the condition in question did not deal with the disease per webster’s did not treat the mental disease that the thera- pist diagnosed rather the procedure changed only peti- tioner’s healthy body and undertook to mitigat e the effects of the mental disease even if srs is medically indicated for the gid patient-even if srs is the best that medicine can do for him-it is an otherwise cosmetic procedure that does not treat the mental disease sex reassignment surgery is therefore within cosmetic_surgery or other similar procedures under sec_213 and the expense that petitioner incurred for that surgery is not deductible under sec_213 wells foley vasquez and kroupa jj agree with this concurring in part and dissenting in part opinion f verdate 0ct date jkt po frm fmt sfmt v files odonna sheila