The Day of the O’Donnabhain Decision
At just past 3:30 on the day of the O’Donnabhain decision, Tuesday, February 2nd, we heard yelling coming from the legal wing of GLAD’s office. “We won! We won!” Though everyone had been waiting for this decision for 2 ½ years, the news was at first too general, too random. We won? Who is we? And what was won? Had the legal assistants been betting against the development office on the correct spelling of Lady GaGa’s birth name? Had one of GLAD’s attorneys given the legal assistants an hour to find the awkward homonym in the department of justice’s 30 page motion to dismiss in Gill v. Office of Personnel Management? We won? After losing the vote in Maine last November it was too unfamiliar a sound.
Eventually we found the source of the yelling: senior staff attorney, Karen Loewy, sat at her desk reading from the computer screen. “O’Donnabhain!” she said. “We won O’Donnabhain.” The sweet sensation of victory spilled out of Loewy’s office and generated looks of astonishment on the faces of the staff members congregating in the hallway. “Oh… My… God…” someone said. “Everything? Did we win everything?” “I don’t know yet,” Loewy said, still reading, while Gary Buseck, GLAD’s legal director, stood behind her, peering over her shoulder as if her computer were the only potential news feed in the office.
In the hallway, the announcement: “We won O’Donnabhain” was passed from person-to-person with no variation, defying the usual results of the telephone game. There were smiles and tears, then as quickly as the crowd had amassed, it dispersed: public affairs this way, development that way, administration to their offices at the other end of the hallway.
There was a plan. A carefully thought out plan. The plaintiff, Rhainnon O’Donnabhain, had to be called; the AP reporter contacted; the “O’Donnabhain Wins” email pulled up and edited for finer details once the legal team had digested the 140 page decision. The sudden flurry of activity, the mounting pressure to absorb and quickly transmit the news was so much sweeter because it was a win. A just and deserving win, but one that couldn’t be assumed. Thus, the preparation of two versions of every press release, every email to board members and GLAD supporters, and statements to feed inquiring reporters.
GLAD’s legal team finally determined that the decision was a total win. Rhiannon was right in deducting expenses for her sex reassignment surgery and hormone treatments from her taxes back in 2001, and now, thanks to the tax court’s decision, others in the U.S. would be able to do the same without fear of challenges from the IRS. Sweet, sweet victory.
By 8pm the news of the decision had appeared in an AP dispatch to the Boston Herald: “Court Allows Tax Deduction for Woman’s Sex Change.” The press release declaring the win against the IRS was sent out to over 800 media outlets.
Day Two-Teleconferences
As part of the follow-up plan, GLAD had arranged three teleconferences for the next day: a morning conference with GLAD donors, a noon media conference, and a 6pm community conference. GLAD attorneys, Jennifer Levi, Karen Loewy, and Ben Klein attended the conferences and Rhiannon O’Donnabhian would join them for the final community conference moderated by National Center for Transgender Equality’s Mara Keisling.
At noon, reporters from Agence France Press, NPR, Pam’s House Blend, and Keen News Service, among others, joined in on the teleconference. Attorney Karen Loewy introduced the case and explained the scope of the tax court’s decision. Follow-up questions focused largely on whether the IRS would file an appeal and whether the decision would have any influence on how insurance companies handled SRS claims in the future. Loewy explained that the IRS had 90 days to appeal, and though the ruling was unequivocal in its determination that gender identity disorder warranted medical treatment, it was too early to tell what effect this would have on other agencies.
Emails and phone calls of congratulations would come into the office throughout the afternoon from GLAD supporters, sister organizations, and the community. A small office celebration was planned for 5pm.
At 4:30 Rhiannon arrived and was greeted with hugs and congratulations. All of GLAD’s staff gathered in the boardroom for a toast to Rhiannon and GLAD’s legal team. Wearing her trademark dark slacks and white button down blouse, her curls of dark red hair and multiple ear piercings, Rhiannon was both joyous and overwhelmed to be there, toasting the favorable decision after waiting so many years. “I’m at a loss for words,” she would say more than once that evening.
By 6pm GLAD staff had once again dispersed, leaving Rhiannon, attorneys Ben Klein and Jennifer Levi, and Manager of Public Education, Alison Cashin, to take part in the teleconference. NCTE’s executive director, Mara Keisling, and managing director, Stephanie White, were on the line with over 70 callers from around the country. Unfortunately, many had to be turned away.
Keisling began by thanking GLAD for all their work on LGBT rights and transgender rights in particular. She praised Rhiannon for her courage: “She was strong,” Keisling said. “It was not easy, I’m sure, and she has won a huge victory for all of us.” On hearing this, Rhiannon was obviously moved.
Jennifer Levi, GLAD’s Transgender Rights Project Director, returned the praise for NCTE and Keisling’s leadership in Washington D.C. She then expressed how “tremendously proud” she was to work on Rhiannon’s case with attorneys Ben Klein, Karen Loewy, and tax attorneys at Sullivan and Worcester. After detailing the history of the case, Levi introduced Rhiannon to the community: “We wouldn’t be here today,” she said. “Without the courage and conviction of our client, Rhiannon O’Donnabhian.”
Rhiannon introduced herself, then apologized for reading from a prepared text: “This is an affirmation that my cause was a right cause and that I was right in perusing this through the court.” She paused, wiping tears from her eyes. “Now the long wait is over and my brothers and sisters can take a medical deduction for their treatment for gender identity disorder without fear that their medical deduction is going to be denied by the IRS.”
Jennifer Levi explained that the court’s decision went beyond expectations in its agreement that the triadic therapy of the Benjamin standards (the real life test, hormone therapy, and SRS) was the “appropriate” treatment for GID and that surgeries involved in that treatment are not considered cosmetic.
The conference was then opened up for questions. Callers hailed from California, Washington, Arizona, Illinois, Wisconsin and New York, among other states. Questions covered topics such as deductions for flexible spending accounts, whether overseas travel expenses were deductible, and whether other surgeries such as facial feminization surgery or hair removal were deductible. Levi was careful to explain that she was not an accountant and that questions regarding tax codes should be directed to a tax attorney. Regarding other surgeries, she pointed out that if the treatment is “therapeutic in nature” and deemed so by the physician then it should be deductible.
By 7pm the conference came to a close, and two hectic, yet satisfying, days neared their end.
Rhiannon said goodbye to everyone; hugs were exchanged, and she left GLAD’s office.
While walking up Winter Street to catch the Red Line home, a woman came up to Rhiannon and asked her for some change. Without hesitating, she reached into her wallet and pulled out a dollar, giving it to the woman with a smile. As she continued walking towards the T station she shook her head, “That could easily be me,” she said.