Scarce Health $$ To Preserve 'Quality of Life'

"The Charter-protected right to security of the person safeguards individual dignity and autonomy. [Requiring a transgender or non-binary person born male] to remove their penis to receive state funding for a vaginoplasty would be inconsistent with the values of equality and security of the person."

"Such an interpretation would force transgender, non-binary people like 'K.S.' to choose between having a surgery [penectomy] they do not want, and which does not align with their gender expression, to get state funding on the one hand, and not having gender-affirming surgery at all on the other."

"Such a choice would reinforce their disadvantaged position and would not promote their dignity and autonomy."

Justice Brees Davis, Ontario Provisional Court

The surgery, which is not available anywhere in Canada, involves creating a vaginal canal, or opening, without removing the penis. Photo by Getty Images

In Ontario, the Ontario Health Insurance Plan the purpose of which is to provide life-saving surgeries paid for through tax dollars to preserve the lives of residents, has now been ordered by an Ontario court ruling to pay for a resident's surgery for constructing a vagina, and at the same time leaving the penis intact. This was an unanimous decision by a three-member panel of judges at the provincial Divisional Court. And this ruling could very well serve to expand access to a new "bottom surgery" for individuals who identify as non-binary (neither fully male nor fully female).

The individual in question identified only as 'K.S.' has, since 2022, been immersed in a legal battle with the Ontario Health Insurance Plan which had denied the funding request revolving around a penile-preserving vaginoplasty surgery at a specialized clinic in Austin Texas; a surgery considered 'experimental' not recognized or available anywhere in Canada. The process involves the creation of a vaginal canal, leaving the penis intact for 'K.S.', born male, identifying as female.

 

The surgical request was denied on the basis that the procedure is not one included on the OHIP list of sex-reassignment procedures, therefore not an insured service.The decision was appealed by the applicant, to Ontario's Health Services Appeal and Review Board, on the basis that forcing the penis removal would invalidate 'her' identity, similar to an illegal act of conversion therapy. Of concern to the applicant was the risk of complications and urinary incontinence from urological rerouting, along with risk of orgasm dysfunction. 

When the appeal board overturned OHIP's decision OHIP appealed to the Division Court with the argument the review board erred in its ruling of the procedure eligible for public funding. The court responded that the appeal board's decision was consistent with the World Professional Association for Transgender Health standards of care. An Association that is given undeserved credit, and recently now the recipient of a scathing review by a massive British report into gender-affirming care.

 

K.S. is fighting for public funding of a surgery previously argued to be 'experimental' by the Ontario government. (Submitted through counsel)