Medical Necessity: A Higher Hurdle for Marginalized Taxpayers?

59 Pages Posted: 18 Oct 2018

See all articles by Julia Youngman

Julia Youngman

Washington and Lee University

Courtney Hauck

Columbia Law School; Columbia University, Law School, Students

Date Written: September 27, 2018


Civil rights protection for transgender people—and in particular access to affordable health care—is currently the subject of intense political scrutiny, with a hostile administration chipping away at legal protections. Among other setbacks, a federal district court enjoined regulatory guidelines that were issued in 2016 to clarify that the federal prohibition on sex discrimination in health insurance applies to discrimination on the basis of gender identity and transgender status, and the promulgating agency itself is now reconsidering the guidelines. Without explicit federal protections against discrimination by health insurers and in the face of uneven state law protections, the ability to deduct costs associated with gender transition-related health care that are not covered by insurance on one’s personal income taxes has taken on new significance for the transgender population. This article takes a new look at the 2010 decision of the United States Tax Court in O’Donnabhain v. Commissioner of Internal Revenue, in which the Court held that a transgender taxpayer could deduct certain transition-related medical expenses on her federal income tax return, but not others. This article argues that, while the O’Donnabhain decision may legitimize transition-related treatments as medically appropriate in the insurance context, the Court overreached by considering whether the costs at issue were “medically necessary” and “widely accepted” in the medical community, requirements that the federal tax code does not impose. In so doing, the decision risks imposing an unwarranted burden of proof on transgender people and potentially on other marginalized populations. This article explores the implications of the O’Donnabhain decision for transgender health care in the current political and legal climate, and explores strategies to protect health care rights for transgender people and other marginalized communities, with a focus on the medical deduction for individual federal income taxes.

Keywords: civil rights, transgender, transgender people, medical, medical needs, regulations, state regulations, federal regulations, health care, Affordable Care Act, O’Donnabhain v. Commissioner of Internal Revenue, O’Donnabhain, tax

JEL Classification: K32, K34

Suggested Citation

Youngman, Julia and Hauck, Courtney, Medical Necessity: A Higher Hurdle for Marginalized Taxpayers? (September 27, 2018). Loyola of Los Angeles Law Review, Vol. 51, No. 1, 2018. Available at SSRN:

Julia Youngman (Contact Author)

Washington and Lee University ( email )

204 W Washington St
Lexington, VA 24450
United States
540-458-8328 (Phone)

Courtney Hauck

Columbia Law School ( email )

435 West 116th Street
New York, NY 10027
United States

Columbia University, Law School, Students ( email )

435 West 116th Street
New York, NY 10027
United States

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