Via Language Log, “Sex-change surgery and universal grammar”, a post on a decision of the Tax Court that was released earlier this month. The decision addressed the question of whether medical expenditures undertaken in the course of sex reassignment surgery are deductible under the U.S. Tax Code.

Although simmering beneath the surface of the opinion is a barely restrained argument on sexual morality and gender essentialism (although with plenty of snide jabs and confidential asides on the quality of other judge’s arguments tucked away in the footnotes), the concurrences and dissents treat the debate, at least on its face, as a matter of linguistics. The opinion is, overall, a pretty fascinating one, with many potential points of interest, but I liked the angle Language Log pointed out: the kerfuffle over using rules of grammar and logic in statutory construction, i.e., “the dispute about how to interpret disjunction under negation—i.e., how to interpret expressions such as I don’t know anything about linguistics or tax law (with don’t signaling negation and or signaling disjunction).”

Section 213(d)(1)(A) of the Tax Code “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 7.5 percent of adjusted gross income.”

In turn, ‘medical care’ is defined as the amount paid “for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body .” However, medical care does not include cosmetic surgery (or any “similar procedure”), which the Code defines 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.”

In O’Donnabhain v. Commission, the IRS was presenting the losing argument that Gender Identity Disorder (GID) was not a ‘disease,’ as it lacks any known organic basis, was rejected, given that mental disorders without an unknown organic cause have been accepted as a disease for IRS purposes for half a century. The IRS also argued that GID was “social phenomenon” that had been “medicalized,” but this characterization was also rejected in light of the medical evidence presented.

The tax court found for the petitioner and that sex reassignment surgery is in fact a deductible expense under the Tax Code. The IRS had also wanted to deny any deduction for the petitioner’s hormone therapy, arguing that hormone therapy, when intended to alter someone’s appearance, is a “similar procedure” that falls under the cosmetic surgery exclusion. (The court did, however, deny the deductions for the petitioner’s breast augmentation surgery — because petitioner had achieved some breast tissue from the hormone therapy alone, the augmentation was in fact cosmetic.)

Language Log describes the linguistic disagreement present in the opinion:

On the majority’s interpretation, the boldfaced language above means that an appearance-improving procedure doesn’t count as cosmetic surgery if it either promotes proper bodily function or prevents or treats illness or disease. The dissenters, on the other hand, argued that for such a procedure to be excluded from the cosmetic-surgery category, it has to both promote proper bodily function and prevent or treat illness or disease.

Judge Halpern’s concurrence cites to De Morgan’s laws:

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/De_Morgan’s_laws. The rules are:

not (p or q) = (not p) and (not q)
not (p and q) = (not p) or (not q)

According to Halpern, “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,” and therefore, the statute should be interpreted in light of De Morgan’s laws.

In his dissent, Judge Foley responded that “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.” As much as I disagree with the rest of Foley’s opinion, he does have a point here. For more on the validity of Halpern’s reliance on rules of logic to interpret language, read the rest of the post over at Language Log.

There were two further points of minor interest from the O’Donnabhain decision that caught my eye. The first was a citation by the court to Judge Posner, from an opinion of his holding that psychotherapy alone was ineffective:

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 removal of the genitals and the construction of a vagina-substitute out of penile tissue.

I was curious to see the use of the informal “doesn’t” in a judicial opinion — I don’t think I have seen Posner take that tone before, but maybe he uses it as he has here, when he wants to come across as frank and authoritative about a potentially sensitive subject. The second comment was in Judge Holmes’ concurrence, which Halpern referred to somewhat dismissively as a “Brandeis brief.” Homes critiqued the majority’s opinion for deciding more than may have been strictly necessary, stating that:

It is not essential to the holding and drafts our Court into culture wars in which tax lawyers have heretofore claimed noncombatant status.

This struck me as an odd statement to make. Given the structure of our tax code and kinds of deductions provided for, it is impossible to administer our tax system is a way that avoids entering the “culture wars.” Moreover, the medical expenses deduction has often been a lightning rod for controversy; this is hardly the first time there has been a dispute on sensitive social and cultural matters related to it. How could it be otherwise? ‘Medical care’ is not in itself inherently scientific, clinical, and objective, as Holmes seems to imagine. The phrase “promote the proper function of the body” cannot be defined in anything but a normative fashion — for instance, can birth control or abortion be said to be part of “the proper function of the body”? What about gastric bypass surgery?

-Susan