Gender Dysphoria Diagnosis to be Moved Out of Sexual Disorders Chapter of DSM-5

Protest at 2009 APA Annual Meeting (photo Kelley Winters)

Protest at 2009 APA Annual Meeting (photo Kelley Winters)

Dr. Jack Drescher,  a member of the subworkgroup on Gender Identity Disorders of the DSM-5 Workgroup on Sexual and Gender Identity Disorders, confirmed yesterday that the Gender Dysphoria Diagnosis will be removed from the sexual disorders chapter and placed in a separate category in the Diagnostic and Statistical Manual of Mental Disorders:

 GD is supposed to be placed in a chapter of its own, no longer linked with sexual dysfunctions and paraphilias (which will also have chapters of their own)

This reclassification, along with the change in title from Gender Identity Disorder to Gender Dysphoria, is a significant improvement in the diagnostic coding used for access to medical transition care, for trans and transsexual people who need it. Preceding diagnoses of Transsexualism/Gender Identity Disorders were grouped with “psychosexual” disorders in the DSM-III. They were briefly moved to the class of Disorders Usually First Evident in Infancy, Childhood or Adolescence in the DSM-III-R in 1987 but were returned to the sexual disorders chapter in the  DSM-IV, and DSM-IV-TR. Community advocates and supportive medical providers have long raised concern that this placement was clinically misleading and reinforced false stereotypes about gender diversity. Gender identity  is not specifically related to sexuality, sexual orientation or sexual dysfunction. Political and religious extremists have  exploited the sexual disorder grouping in the DSM to sexualize gender diversity and defame trans people as deviant. Trans and transsexual individuals have consequently lost their jobs, homes, families, children, and civil justice.

The DSM-5 working group responsible for sexual and gender diagnoses hinted at a possible change in diagnostic placement in February, 2010, stating

The subworkgroup questions the rationale for the current DSM-IV chapter Sexual and Gender Identity Disorders, which contains three major classes of diagnoses: sexual dysfunctions, paraphilias, and gender identity disorders… Various alternative options to the current placement are under consideration.

The decision to separate the revised Gender Dysphoria category from sexual disorders is consistent with a previous determination by the working group to remove sexual orientation specifiers from the diagnostic criteria. While many shortcomings remain in the proposed Gender Dysphoria diagnosis, this change in placement in the DSM represents forward progress for trans and especially transsexual individuals.

Unfortunately, the DSM-5 Task Force and APA Board of Trustees retained the Transvestic Disorder category in the sexual disorders chapter. Previous known as Transvestic Fetishism, it is grouped with paraphilic diagnoses such as pedophilia and exhibitionism and authored by Dr. Raymond Blanchard of the Toronto Centre for Addiction and Mental Health (formerly called the Clarke Institute of Psychiatry). This punitive and scientifically capricious category maligns many gender variant people, including transsexual women and men, as mentally ill and sexually deviant, purely on the basis of nonconforming gender expression. It is written to promote Blanchard’s unfounded theories of “autogynephilia” and “autoandrophilia” that conflate social and medical gender transition with fetishism. More than 7000 people have signed an online petition, sponsored by the International Foundation for Gender Education (IFGE), calling for the removal of this harmful diagnosis from the DSM.

Copyright © 2012 Kelley Winters, Ph.D., GID Reform Advocates

Third Swing: My Comments to the APA for a Less Harmful Gender Dysphoria Category in the DSM-5

DSM-5

My objective for GID reform in DSM-5 is harm reduction– depathologizing gender identities, gender expressions or bodies that do not conform to birth-assigned gender stereotypes, while at the same time providing some kind of diagnostic coding for access to medical transition treatment for those who need it. I and others have suggested that diagnostic criteria based on distress and impairment, rather than difference from cultural gender stereotypes, offer a path for forward progress toward these goals. This post is an update to my earlier comments to the APA in June, 2011.

The  Gender Dysphoria (GD) criteria proposed by the Sexual and Gender Identity Disorders Work Group for the DSM-5 represent some forward progress on issues of social stigma and barriers to medical transition care, for those who need it. However, they do not go nearly far enough in clarifying that nonconformity to birth-assigned roles and victimization from societal prejudice do not constitute mental pathology. The improvements in the APA proposal so far include a more accurate title, removal of Sexual Orientation Subtyping, rejection of “autogynephilia” subtyping (suggested in the supporting text of the GID category in the DSM-IV-TR), recognition of suprabinary gender identities and expressions, recognition of youth distressed by anticipated pubertal characteristics, and reduced false-positive diagnosis of gender nonconforming children. However, the proposed GD criteria still fall short in serving the needs of transsexual individuals, who need access to medical transition care, or other gender-diverse people who may be ensnared by false-positive diagnosis.

The proposed Gender Dysphoria criteria continue to contradict social and medical transition by mis-characterizing transition itself as symptomatic of mental disorder and obfuscating the distress of gender dysphoria as the problem to be treated. The phrase “a strong desire,” repeated throughout the diagnostic criteria, is particularly problematic, suggesting that desire for relief from the distress of gender dysphoria is, in itself, irrational and mentally defective. This biased wording discourages transition care to relieve distress of gender dysphoria and instead advances gender-conversion psychotherapies intended to suppress the experienced gender identity and enforce birth-assigned roles. The World Professional Association for Transgender Health (WPATH) has stated that, “Such treatment is no longer considered ethical.” (SOC, Ver. 7, 2011)

Transitioned individuals who are highly functional and happy with their lives are forever diagnosable as mentally disordered under flawed criteria that reference characteracterics and assigned roles of natal sex rather than current status. For example, a post-transition adult who is happy in her or his affirmed role, wants to be treated like others of her/his affirmed gender, has typical feelings of those in her/his affirmed gender, and is distressed or unemployed because of external societal prejudice will forever meet criteria A (subcriteria 4, 5 and 6) and B and remain subject to false-positive diagnosis, regardless of how successfully her or his distress of gender dysphoria has been relieved. Once again, the proposed criteria effectively refute the proven efficacy of medical transition care. Political extremists and intolerant insurers, employers, and medical providers will continue to exploit these diagnostic flaws to deny access to transition care for those who need it. The World Professional Association for Transgender Health (WPATH) has affirmed the medical necessity of transition care for the treatment of gender dysphoria. (SOC, Ver. 7, 2011)

The criteria for children are slightly improved over the DSM-IV-TR, in that they can no longer be diagnosed on the basis of gender role nonconformity alone. However, the proposed criteria are unreasonably reliant on gender stereotype nonconformity. Five of eight proposed subcriteria for children are strictly based on gender role nonconformity, with no relevance to the definition of mental disorder. Behaviors and emotions considered ordinary or even exemplary for other (cisgender) children are mis-characterized as pathological for gender variant youth. This sends a harmful message that equates gender variance with sickness. As a consequence, children will continue to be punished, shamed and harmed for nonconformity to assigned birth roles.

A New Distress-based Diagnostic Paradigm.

An international group of mental health and medical clinicians, researchers and scholars, Professionals Concerned With Gender Diagnoses in the DSM, has proposed alternative diagnostic nomenclature based on distress rather than nonconformity (Lev, et al., 2010; Winters and Ehrbar 2010; Ehrbar, Winters and Gorton 2009). These include anatomic dysphoria (painful distress with current physical sex characteristics) as well as social role dysphoria (distress with ascribed or enforced social gender roles that are incongruent with one’s inner experienced gender identity) For children and adolescents, these alternative criteria include distress with anticipated physical sex characteristics that would result if the youth were forced to endure pubertal development associated with natal sex. For those who require a post-transition diagnostic coding for continued access to hormonal therapy, the criteria include sex hormone status. Psychologist Anne Vitale (2010) has previously described this distress as deprivation of characteristics that are congruent with inner experienced gender identity, in addition to distress caused directly by characteristics that are incongruent.

Building on this prior work, I propose that gender role component of gender dysphoria, including distress with a current incongruent social gender role and distress with deprivation of congruent social gender expression, can be more concisely described as impairment of social function in a role congruent with a person’s experienced gender identity. I believe it is also important to include other important life functions, such as sexual function in a congruent
gender role. This language would provide a clearer understanding of the necessity of social and medical transition for those who need them.

These alternative criteria acknowledge that experienced gender identity may include elements of masculinity, femininity, both or neither and are not limited to binary gender stereotypes. They also define clinically significant distress and impairment to include barriers to functioning in one’s experienced congruent gender role and exclude victimization by social prejudice and discrimination.

Suggested Diagnostic Criteria for Gender Dysphoria in the DSM-5

I would like to suggest the following diagnostic criteria for the Gender Dysphoria for adults/adolescents and children–

A. Distress or impairment in life functioning caused by incongruence between persistent experienced gender identity and current physical sex characteristics in adults or adolescents who have reached the earlier of age 13 or Tanner Stage II of pubertal development, or with assigned gender role in children, manifested by at least one of the following indicators for a duration of at least 3 months. Incongruence, for this purpose, does not mean gender expression that is nonconforming to social stereotypes of assigned gender role or natal sex. Experienced gender identities may include alternative gender identities beyond binary stereotypes.

A1. Distress or discomfort with one’s current primary or secondary sex characteristics,
including sex hormone status for adolescents and adults, that are incongruent with
experienced gender identity, or with anticipated pubertal development associated with
natal sex.
A2. Distress or discomfort caused by deprivation of primary or secondary sex
characteristics, including sex hormone status, that are congruent with experienced
gender identity.
A3. Impairment in life functioning, including social and sexual functioning, in a role
congruent with experienced gender identity.

B. Distress, discomfort or impairment is clinically significant. Distress, discomfort or
impairment due to external prejudice or discrimination is not a basis for diagnosis.

References

World Professional Association for Transgender Health (2011), Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, http://www.wpath.org/documents/Standards%20of%20Care_FullBook_1g-1.pdf

Lev, A.I., Winters, K., Alie, L., Ansara, Y., Deutsch, M., Dickey, L., Ehrbar, R., Ehrensaft, D., Green, J., Meier, S., Richmond, K., Samons, S., Susset, F., (2010). “Response to Proposed DSM-5 Diagnostic Criteria. Professionals Concerned With Gender Diagnoses in the DSM.” Retrieved December 4, 2010 from: http://professionals.gidreform.org

Winters, K. and Ehrbar, R. (2010) “Beyond Conundrum: Strategies for Diagnostic Harm Reduction,” Journal of Gay & Lesbian Mental Health, 14:2, 130-139, April

Ehrbar, R., Winters, K., Gorton, N. (2009) “Revision Suggestions for Gender Related Diagnoses in the DSM and ICD,” The World Professional Association for Transgender Health (WPATH) 2009 XXI Biennial Symposium, Oslo, Norway, http://www.gidreform.org/wpath2009/

Vitale, A. (2010) The Gendered Self: Further Commentary on the Transsexual Phenomenon, Lulu, http://http://www.avitale.com/

 

Copyright © 2012 Kelley Winters, GID Reform Advocates

 

These Aren’t the Droids You’re Looking For: Gender Diversity, Scapegoating and Erasure in Medicine and Media

Kelley Winters, Ph.D.
GID Reform Advocates
http://www.gidreform.org

On the April 18th broadcast of The Rachel Maddow Show, Dr. Maddow reported an “explosive revelation” that Psychiatrist Robert Spitzer had rescinded his controversial 2001 claim that sexual conversion, or sexual reparative, psychotherapies can change sexual orientation in gay and lesbian people. Quoting an interview of Dr. Spitzer in The American Prospect, Maddow celebrated the historical significance of Spitzer’s reversal for the gay rights movement, calling it,

step one in what we’re now going to see as a real change, a real reckoning, in antigay politics.

Sadly, Dr. Maddow only told half of the story. For four decades, Robert Spitzer has played pivotal roles in mental health policies, not only on sexual orientation, but on gender diversity as well. This week, Rachel Maddow and other journalists turned a blind eye to Dr. Spitzer’s failure to retract a lifetime of trans psychopathologization, stereotyping gender identities and expression that differ from assigned birth roles as mental disease. This omission speaks to the marginal status of trans people within the GLbt rights movement and progressive media, as much as Spitzer’s omission speaks to trans marginalization by mental health policymakers. Shifting stigma from one oppressed class to a more oppressed class is not real change.

At the 1973 annual meeting of the American Psychiatric Association, Robert Spitzer played a central role in arguing for declassification of same-sex orientation as mental illness:

In the past, homosexuals have been denied civil rights in many areas of life on the ground that because they suffer from a ‘mental illness’ the burden of proof is on them to demonstrate their competence, reliability, or mental stability.

This led to the gradual deletion of sexual orientation categories from the Diagnostic and Statistical Manual of Mental Disorders (DSM) between 1973 and 1987. The DSM is published by the American Psychiatric Association and remains the medical and cultural definition of mental disorder in North America. As Chairman of the DSM-III and DSM-III-R Task Forces and chief editor of the diagnostic manual, Spitzer oversaw removal of the last major vestige of gay diagnosis, “Ego-dystonic Homosexuality,” from version III-R.

However, while depathologizing same-sex orientation, Dr. Spitzer simultaneously directed a massive expansion of trans-pathology diagnoses in the DSM. In 1980, a new category of Gender Identity Disorders (GID), including a Transsexualism (TS) diagnosis, was added to the class of Psychosexual Disorders in the DSM-III. The TS coding was paradoxical and controversial for many trans people. Many community advocates and medical providers agreed (and do today) that some kind of diagnostic coding was necessary to facilitate access to medical and/or surgical transition care for those trans and transsexual people who needed it.  On the other hand, defining a medical transition coding as a mental illness, rather than a treatable medical condition, contradicted access to hormonal and/or surgical transition care and encouraged gender conversion, or gender-reparative, psychotherapies– unsubstantiated treatments attempting to change gender identity and shame trans and TS people into the closets of their assigned birth roles.  Vulnerable trans and gender nonconforming youth were targeted and institutionalized as a consequence of diagnostic criteria based on nonconformity to birth-assigned stereotypes.

In the DSM III-R, Dr. Spitzer’s Task Force expanded the diagnostic criteria for children to emphasize gender role nonconformity for birth-assigned girls, including “persistent marked aversion to normative feminine clothing” (whatever that means).  Even more damaging, a new category was added, Gender Identity Disorder of Adolescence or Adulthood, Nontranssexual Type (GIDAANT), to psychopathologize for the first time the gender identities of trans people who did not need access to medical transition care.

The disorder of Transvestism in the DSM-III was renamed “Transvestic Fetishism” in the DSM-III-R, to further stigmatize crossdressing or gender nonconformity by birth-assigned males as sexual obsession. This change served to sexualize a diagnosis that did not clearly require a sexual context in its diagnostic criteria.  The DSM-IV Casebook, edited by Dr. Spitzer in 1994, went even further in pathologizing gender nonconformity, recommending a Transvestic Fetishism diagnosis for a self-accepting bigender male, whose crossdressing was not necessarily erotically motivated and whose primary distress was his spouse’s intolerance.

In 2001, Robert Spitzer tacked to the political right on sexual orientation, presenting a paper entitled,”Can Some Gay Men and Lesbians Change Their Sexual Orientation? 200 Participants Reporting a Change from Homosexual to Heterosexual Orientation,” to the Annual Meeting of the American Psychiatric Association. It was published in the Archives of Sexual Behavior two years later. Spitzer promoted sexual conversion, or sexual-reparative, psychotherapies as “a rational choice” and affirmed their efficacy, stating,

there is evidence that change in sexual orientation following some form of reparative therapy does occur in some gay men and lesbians.

Moreover, Spitzer denied mounting evidence that sexual-reparative psychotherapies cause harm and even criticized the American Psychiatric Association for denouncing the practice as unethical.  At the same time, he revealed his bias on gender diversity and gender conversion therapies, describing “a greater sense of masculinity in males, and femininity in females,” as a therapeutic “benefit.”

By 2003, Dr. Spitzer’s statements had drawn a firestorm of dissent from GLB communities and supportive mental health professionals. Wayne Besen, founder of Truth Wins Out, characterized Spitzer’s study as,

just the latest attempt by the political religious right to gain legitimacy for their arguments by teaming up with a supposedly unbiased scientist.

Indeed, antigay extremists, including the National Association for Research & Therapy of Homosexuality (NARTH), embraced the Spitzer paper as mainstream endorsement of their sexual-reparative psychotherapies:

These results would seem to contradict the position statements of the major mental health organizations in the United States, which claim there is no scientific basis for believing psychotherapy effective in addressing same-sex attraction. Yet Spitzer reports evidence of change in both sexes…

Spitzer’s response to mounting criticism of his scientific rigor was to backpedal from his “rational choice” position, clarifying, “Of course no one chooses to be homosexual and no one chooses to be heterosexual.” At the very same time, however, he doubled down on his characterization of trans people as mentally defective.

2003 APA Annual Meeting

Sexual and Gender Identity Disorders symposium from the 2003 APA Annual Meeting. From the left, Drs. Karasic (speaking), Hill, Winters, Moser, Drescher, Spitzer (front), and Fink.

In May, 2003, Dr. Spitzer and I presented papers to a symposium entitled, “Sexual and Gender Identity Disorders: Questions for the DSM-V” at the Annual Meeting of the American Psychiatric Association. The only trans person and non-clinical scholar in the session, I sat on the left side of the stage table with presenters advocating reform of the Gender Identity Disorder (GID) and paraphilia diagnoses in the DSM-5. At the far right end of the table, Spitzer joined former APA President Dr. Paul Fink in defending the status quo. Spitzer wasted no time in invoking the worn stereotype of disordered gender identity:

Children normally develop a sense of gender identity. It is not taught—it just happens. I would argue that by itself, the failure to develop a gender identity that is congruent with biological gender is a dysfunction.

He continued, plodding down a path of cave-man essentialism:

In all cultures, young boys want to play with boys, Young girls want to play with girls… If you are interested in evolutionary psychology, you ask yourself could that have some survival value? The answer is yes. Thousands of years ago when men were more likely to be in hunting and women were more likely to be in the nurturing role, if you were a young boy you would do better if you spent your time with other boys with whom, when you were older, you would go to the hunt.

And Spitzer didn’t stop there, adding,  “…in all cultures, gender is recognized as a dichotomy.”

This could not be further from the truth. Global human history holds a great many indigenous cultures with more than two recognized sex and gender roles.  These include Tahitian and Hawaiian Mahu, Madagascar Sekrata, Hindu Tantric and Hijra Sects, Islamic Xanith, Khawal, and Sufi traditions and numerous Native American, or First Nation, Two Spirit traditions, and many others.

At the 2003 APA Meeting, Dr. Spitzer disparaged gender variant identities and expressions as pathological if they did not serve functions that he termed, “expected.” In my 2008 book, Gender Madness in American Psychiatry: Essays from the Struggle for Dignity, I questioned his evolutionary speculations,

who gets to decide what is ‘expected’? From whose perch of social privilege is American psychiatry to pass judgment upon the evolutionary worthiness of a class of people who have survived since human antiquity?

In the May, 2006, issue of Congressional Quarterly Researcher, Robert Spitzer debated UC San Francisco psychiatrist Dan Karasic on the question of GID as a mental illness. Spitzer used his most defamatory language to date to argue that well adjusted post-transition adults should continue to be regarded as mentally ill, so long as they deviate from their birth-assigned sex roles:

Granted that hormone therapy or surgery may now be the only treatment that we can now offer the adult with GID… But surely something remains profoundly wrong psychologically with individuals who are uncomfortable with their biological sex and insist that their biological sex is of the opposite sex. The only diagnosis that is appropriate for such cases is GID.

In issues of social discrimination, historic context matters. Cisgender GLB people had every right to their outrage at Spitzer’s 2001 attack on their dignity. This week, they had cause to celebrate his retraction. Wayne Besen noted that,

Spitzer just kicked out the final leg from the stool on which the proponents of ‘ex-gay’ therapy based their already shaky claims of success.

Perhaps, but trans and especially transsexual people are not celebrating. Dr. Spitzer and like-minded policymakers in American Psychiatry have long kicked the the legs from under our human legitimacy, and the rush to his redemption in progressive media has cast our issues aside once again.

We too have been injured by Robert Spitzer’s role in perpetuating defamatory stereotypes of mental “dysfunction” and deviance. Trans people continue to lose our jobs, homes, children, families, dignity and civil justice because of these stereotypes and continue to face predatory gender conversion psychotherapies. These stereotypes lie behind every extremist political campaign that demeans our most basic civil rights as “bathroom bills.” These stereotypes lie behind military discrimination and government policies that still malign us as “mentally unfit.” These stereotypes convince parents and school officials to dismiss trans youth as “confused” or going through “a phase.” Trans communities have waited more than two decades for a retraction or an apology from Dr. Spitzer. and we are still waiting.

Copyright © 2012 Kelley Winters, GID Reform Advocates

A Taxing Question of Medical Necessity

Kelley Winters, Ph.D.
GID Reform Advocates
www.gidreform.org

Many trans and especially transsexual Americans were relieved this week by the U.S. Tax Court decision to reverse earlier IRS positions and allow costs of hormonal and surgical transition care to be deducted as medical expenses. The ruling concluded:

Petitioner has shown that her hormone therapy and sex reassignment surgery treated disease within the meaning of section 213 and were therefore not cosmetic surgery. Thus petitioner’s expenditures for these procedures were for “medical care” as defined in section 213(d)(1)(A), for which a deduction is allowed under section 213(a).

However, this recognition of the legitimacy of medical transition came at a cost to the dignity of transsexual women and men. It relied on the flawed diagnostic nomenclature of Gender Identity Disorder (GID) in the Diagnostic and Statistical Manual of Mental Disorders (DSM) and its implication of mentally “disordered” gender identity. Paradoxically, this case fueled opposition to medical transition access, based on the current wording of the very same GID classification and its more virulent companion diagnosis of Transvestic Fetishism. While the Tax Court decision underscored the utility of some kind of diagnostic coding for those who need access to hormonal or surgical transition care, it also illustrated the urgency of reforming the GID diagnosis and removing the Transvestic Fetishism category in the next revision of the DSM, published by the American Psychiatric Association (APA).

Ms. Rhiannon O’Donnabhain underwent corrective genital surgery in 2001 and claimed a tax deduction for surgical and hormonal treatment expenses as well as the cost of a breast augmentation procedure. Her courageous nine year battle with the IRS to affirm the medical legitimacy of her transition care took a tortuous off-again, on-again path among the potholes of politics and prejudice.

Although the IRS initially issued a full refund to Rhiannon, a tax examiner denied her deduction in July, 2002. He declared her surgical and hormonal care to be “cosmetic” and therefore excluded as a deductible medical expense under section 231(d)(9) of the Internal Revenue Code. She appealed, represented by Gay and Lesbian Advocates and Defenders (GLAD). Attorney Karen Loewy argued that,

Any notion that medical treatment for a transgender person is purely cosmetic is based on misunderstanding and prejudice, not medical science.

In November, 2004, the IRS reversed the examiner’s decision and allowed Rhiannon to deduct her surgical expenses as medically necessary and professionally prescribed. However, political extremist groups responded by pressuring the Bush Administration to deny tax deductions for all medical transition care. They based their arguments on the same psychiatric classification of GID that GLAD cited to win the appeal. The following month, Rev. Louis Sheldon, chairman of the Traditional Values Coalition (TVC), wrote IRS Commissioner Mark Everson:

[B]y giving this tax deduction, your agency will be encouraging other mentally disturbed individuals to consider such surgery as an unneeded surgical procedure for what is a troubled mind–not a troubled body.

The IRS caved to political pressure in October, 2005. IRS Branch Chief Thomas Moffitt issued a Memorandum of Chief Counsel Advice that reversed the decision of the appeals officer and once again denied Rhiannon’s deduction of medical transition expenses. Moffitt demeaned Rhiannon with maligning pronouns of her assigned birth sex and concluded,

In light of the Congressional emphasis on denying a deduction for procedures relating to appearance in all but a few circumstances and the controversy surrounding whether GRS is a treatment for an illness or disease, the materials submitted do not support a deduction.

Astonishingly, Moffit based his ruling, not on respected medical literature, but on a political magazine called First Things, published by the Institute on Religion and Public Life. He cited an article by psychiatrist Paul McHugh, known for employing false stereotypes of mental pathology to terminate gender confirming surgeries at John Hopkins Hospital in the 1970s . McHugh mocked post-operative transsexual women as “caricatures” and invoked the current classification of mental disorder to discredit medical transition care:

Once again I concluded that to provide a surgical alteration to the body of these unfortunate people was to collaborate with a mental disorder rather than to treat it.

Finally, Chief Moffit erected an addition political barrier, unprecedented for other minorities, to transsexual citizens seeking equal treatment under the tax code:

Only an unequivocal expression of Congressional intent that expenses of this type qualify under section 213 would justify the allowance of the deduction in this case.

Civil justice advocates were outraged at such tactics by the Bush Administration. Professor Lynn Conway noted,

To deny such people medical deductions for the medical correction of their bodies – people who often face extreme financial and employment difficulties during their transitions – is unfair and inhumane. The claim that such people require a special “act of Congress” before being treated fairly exudes not only ignorance and intolerance, but also open Executive Branch hostility towards gender variant people.

Berkeley tax attorney Donald Read commented in the San Francisco Chronicle

The IRS should not allow religious views to impact the administration of our tax laws… We all should be concerned about the politicization of the IRS, not only against gay and transgender people, but in all its forms.

Rhiannon’s suit was heard by the U.S. Tax Court in July, 2007. She was again represented by the GLAD legal staff as well as co-counsel from the Boston firm of Sullivan & Worcester.

Senior IRS attorney John Mikalchus repeated the party line from the TVC and Paul McHugh that transition in itself represents psychopathology, citing the current GID diagnosis. He stated that surgery, hormones and other transition treatments do not cure cross-gender identification but “reinforce” it.

Mikalchus also invoked the second gender diagnosis of Transvestic Fetishism, speculating that many transsexual women seeking corrective transition surgeries are afflicted with a paraphilic sexual preoccupation with dressing as women. The APA fueled this false stereotype with publication of the DSM-IV in 1994, where TF was expanded to specifically include transsexual women who are attracted to other women. Mikalchus further belittled Rhiannon with the term, “autogynephilia,” an unsupported derogatory theory promoted by Toronto sexologist Raymond Blanchard, associating male-to-female transition with a narcissistic sexual arousal at “the thought or image of oneself as a woman.” Dr. Blanchard was largely responsible for the current Transvestic Fetishism diagnosis in the DSM-IV. As chairman of the APA’s Paraphilias Subcommittee for the pending DSM edition, he has recently proposed expanding the TF diagnosis with the title, Transvestic Disorder, and adding “Autogynephilia” as a diagnostic specifier.

Despite these barriers, the Tax Court ultimately rejected the IRS portrayal of transition as pathological and its associated medical care as “cosmetic.” On February 2, 2010, the Court ruled that Rhiannon’s hormonal and surgical transition treatments –

were for the treatment of disease within the meaning of § 213(d)(1)(A) & (9)(B), I.R.C. and thus not “cosmetic surgery” excluded from the definition of deductible “medical care” by § 213(d)(9)(A), I.R.C. [paraphrased]

A 69 page majority opinion, authored by Judge Joseph Gale, once again reversed the IRS denial and allowed Rhiannon to deduct her expenses for hormonal medications and corrective genital surgery (although it denied a deduction for her breast augmentation expenses). Their decision rested upon an interpretation of the GID diagnosis as “a serious, psychologically debilitating condition,” rather than a demeaning indictment of “disordered” gender identity. Although political extremists and the IRS attempted to exploit conflicting and ambiguous language in the current GID nomenclature, the GLAD legal team and expert witness Dr. George Brown successfully clarified that severe persistent distress with current physical sex characteristics (often termed anatomical dysphoria) is the true focus of medical transition treatment. In spite of the shortcomings of the current Gender Identity Disorder and Transvestic Fetishism diagnoses, they persuaded the Court that the necessity and efficacy of these treatments in relieving this debilitating distress is well established. Jennifer Levi, Director of GLAD’s Transgender Rights Project, noted,

In this landmark ruling, the Tax Court affirmed the consensus position of the medical establishment that transition-related medical care is essential for many transgender people.

However, the political fragility of this ruling and the contradictory role of the GID and TF diagnoses in establishing the medical necessity of transition treatments are underscored by the dissenting opinion (p. 119-139) of Judge David Gustafson. Joined by four other judges, he opposed allowing a deduction for transition surgeries, stating:

One could analyze the GID patient’s problem in one of two ways: (1) His anatomical maleness is normative, and his perceived femaleness is the problem. Or (2) his perceived femaleness is normative, and his anatomical maleness is the problem. If one assumes option 2, 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 characterization and can be reconciled only with option 1: Petitioner’s male body was healthy, and his mind was disordered in its female self- perception.

In its present form, the diagnostic criteria and supporting text of the GID diagnosis can all too easily be inferred in Gustafson’s second context of “disordered” gender identity, in contradiction to the medical necessity of hormonal and surgical transition treatments. If the intention of the Internal Revenue Service was to punish transsexual people for nonconformity to their assigned birth roles, the American Psychiatric Association, inadvertently or not, handed them blunt instruments of oppression with the current GID and TF diagnoses. Rhiannon herself said it best,

It’s a Catch-22. I have to accept the stigma of being labeled as having a disorder [or] a mental condition … in order to get benefits. I haven’t liked this diagnosis from the very beginning. But I’ve got to play the game.

This week, on February 10, the American Psychiatric Association is scheduled to release draft diagnostic criteria for the Fifth Edition of the DSM for public review. In the DSM-V, the APA has an opportunity to correct the shortcomings and ambiguities of the GID diagnosis that pose barriers to civil justice and access to medical care: (1) clarifying distress as the diagnostic focus rather than nonconformity to assigned birth sex roles; (2) excluding from diagnosis those who suffer no distress or impairment with their bodies or ascribed social gender; (3) clarifying that transition is therapeutic and not pathological; and (4) removing maligning pronouns and terms that disrespect the affirmed identities of transitioned individuals. The APA also has an opportunity to remove the Transvestic Fetishism category that is purely punitive and defamatory to many transwomen.

An American hero in the struggle for dignity and equality, Rhiannon O’Donnabhain deserves better from mental health policymakers. We all do.

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