Originally published on Forbes.com.
The nature of gender and sexuality, violence against women and the humane treatment of prisoners. The First Circuit decision in the case of Michelle Kosilek is such a perfect storm of white hot controversial issues that ignite passionate response , that you might find it hard to believe that there is a tax element buried in there, but there is. I may well be the only tax blogger who noticed it, so I feel duty bound to point it out. For my regular readers I’ll give you the high points of the decision and a nutshell of some of the non-tax issues that are involved. I should note at the outset that it borders on impossible to write about these issues without at least appearing to take a stand and thereby outraging somebody. I sometimes try to do it anyway which has the effect of outraging everybody.
What’s It All About?
Michelle Kosilek is serving a life sentence at the Massachusetts Correctional Institution in Norfolk for the 1990 murder of Cheryl McCaul, whom Michelle, then Robert, had married. Michelle has been receiving treatment for gender identity disorder. There has been counselling and hormone treatment, but the state balked at the final step of sex reassignment surgery. My friend Julia Scotti, a comedian, inspirational speaker and transgender activist explains that issue this way:
The term ‘transgender’ is very broad. I’ve known trans women who have simply done the necessary hormone therapy and live happy, productive lives without ever undergoing a surgeon’s knife. I’ve known trans men who have had top surgery only and also live happily as males. And there are people like me who have had the ‘Full Monty’ so to speak, and have undergone Gender Reassignment. I guess what I’m saying is that the decision is up to the individual and Michelle obviously feels that she needs it.
As to whether or not the state of Massachusetts should provide it is another matter altogether. If you believe (as I do and the medical community does), that the causes of transgenderism are physical, then Michelle’s case is valid and it should be treated as any other medical condition. To deny her medical care trivializes her and the entire trans population because it implies that our issue is not a legitimate, but rather the rantings of some oddballs who like to ‘dress up’. It reduces the dignity a great many people to the level of a cheap joke and a ‘wink wink’ kind of hypocrisy.
Eighth Amendment
The case is about the Eighth Amendment, cruel and unusual punishment. The principle is that if the state deprives someone of their liberty as punishment for a crime, it has a duty to take care of and protect them , since they can’t take care of themselves. This principle ends up being a source of outrage, since prisoners can end up having rights to things – meals, housing of a sort and medical care – that law abiding citizens don’t have as a matter of right . The leading Supreme Court decision in that area is Farmer v Brennan which concerned a transgender prisoner housed in the general male population of a federal prison who was repeatedly raped.
Prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement. They must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must protect prisoners from violence at the hands of other prisoners.
There was actually enough consensus around the notion that it is a major human rights abuse to allow prisoners to be routinely sexual assaulted that in 2003 Congress unanimously passed the Prison Rape Elimination Act. Despite unanimous enactment, the devil being in the details, implementation remains controversial. You can read about that on the website of Just Detention International (Full disclosure, I chair JDI’s audit committee). Under Farmer v Brennan, though, prison officials only get in trouble under the eighth amendment for “deliberate indifference” which is a much lower standard than say negligence.
Violence Against Women
As it turns out, there is even more controversy. Michelle is currently incarcerated in a men’s prison. Corrections officials argue that after sex reassignment surgery that would not be appropriate, but there is a problem with the alternative. At MCI-Framingham, the women’s prison, there are no single-occupancy cells. Many of the MCI-Framingham inmates are victims of domestic violence, so being housed with a woman, who while a man, murdered a spouse raises issues about their right to feel safe. This controversy in its more general form (Another example would be the Michigan Womyn’s Music Festival) is probably one of the most vitriolic disputes on the internet and in some academic and activist circles. Michelle Goldberg did a piece on it in the New Yorker this summer.
Litigation
The way the most recent round of litigation has run is that Massachusetts Department of Corrections which has provided some level of treatment for GID denied the sex reassignment surgery. Judge Mark Wolf, federal district of Massachusetts, ruled the denial was an eighth amendment violation. A panel of the First Circuit upheld Judge Wolf’s decision 2 to 1. Now we have the full circuit overruling Judge Wolf 3 to 2. I can’t but hope that the Supremes get this since it will give Antonin Scalia a chance to reminisce about the single sex high school we both attended, many, many years apart.
Where’s The Tax Beef?
Having framed the controversies, likely to the satisfaction of no one, I will now give you the tax significance of the decision, which is a win for the overwhelming majority of the transgender community that is not incarcerated. For background we need to go the 2010 Tax Court decision in the case of Rhiannon O’Donnabhain. Ms. O’Donnabhain had deducted costs associated with transition. The IRS had, in the eighties, issued a ruling that, at least implicitly, recognized sex reassignment surgery as a valid medical expense. A subsequent law change denied medical deductions for “cosmetic surgery”. That was used as the basis to deny Ms. O’Donnabhain a deduction.
Ms. O’Donnabhain prevailed in Tax Court. It was an interesting question as to why the IRS bothered to fight this. An IRS insider told me that they were ready to settle the case for half the deduction, but word came from on high to fight it. A Republican administration pushing a religious right agenda into tax administration. Imagine that. Tax Court was a stupid place to pick the fight and with Gay and Lesbians Advocates & Defenders (GLAD) backing Ms. O’Donnabhain, they were up against a formidable opponent. In an unusual move the IRS issued an Action on Decision (AOD 2011-3) acquiescing on O’Donnabhain.
I would not rule out a future administration shifting course on that. If they do, however, I think the Kosilek decision could be used against that future IRS. This seems counter-intuitive, since Kosilek is clearly a loss for incarcerated people seeking sexual reassignment surgery. If a prisoner is diagnosed as needing SRS, a Department of Corrections will always be able to find some physician somewhere to argue that the SRS is not required and when the judicially recognized deference to corrections official on security matters is thrown in will be able to win, if this decision sticks. A prisoner is entitled to medical care, but not necessarily the medical care that the prisoner prefers. It’s different in the free world, if you can afford the procedure (and you would not be concerning yourself about tax deductions, if you could not) you are the one who gets to decide which doctor to listen to and all the judges involved in this case have agreed that SRS is a valid medical procedure. That’s what I see as the positive aspect of this case for the transgender community.