Gender Reassignment and Healthcare

I arrived at FMF this morning and saw this post about taxing cosmetic surgery on Feministe. Naturally, I had a "THEY'RE LIMITING TRANSGENDER RIGHTS!" freak out and spent the day researching the issue.

The Senate Healthcare bill places a 5% tax on any cosmetic surgery.

According to the the Internal Revenue Code of 1986, cosmetic surgery is "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."

Gender reassignment surgery could potentially be classified as cosmetic surgery since the language is vague. Who decides what "proper function of the body" means? Do transgender people treat a disease or illness when they get surgery? Can gender dysphoria be cited as a illness or disease to avoid the new tax?

I contacted the Transgender Law Center and their Legal Director told me that this provision is not an issue. Generally, cosmetic surgery is not interpreted to include gender reassignment surgery. So, the language in the Senate bill shouldn't really pose any problems.

However, there is a case in the US Tax Court that could determine whether gender reassignment surgery is interpreted as cosmetic surgery. Back in 2002, Rhiannon O'Donnabhain and GLAD challenged the IRS's "denial of [O'Donnabhain's] deduction of costs related to her sex reassignment." They're still waiting on a decision. This is the case to watch if you're interested in the issue. Read more about it here.