CHIMERA: Phallus/Vagina

"[The Divisional Court erred in finding that a phallus-preserving vaginoplasty was] specifically listed [as an insured service, and that it erred in failing to find that treatments] generally accepted within Ontario as experimental [are excluded from Ontario Health Insurance Plan [OHIP] coverage]."

"Charter values] have no role to play in determining whether penile-preserving vaginoplasty is] specifically listed [in the OHIP schedule of benefits or whether it is excluded because it is experimental."

Ontario public-health insurer, Ontario Health Insurance Plan

 

"Vaginoplasty is a relatively common gender-affirming surgery with approximately 200 Ontarians seeking the surgery annually."

"[But capacity isn't meeting demand, leaving most trans and gender-diverse patients to seek surgery out of province, with much of the follow-up care left to primary-care providers] with little experience in gender-affirming care."

LGBTQ researchers

 

"Despite two unanimous decisions in K.S.'s favour, OHIP has applied for leave to appeal [which is not automatically granted], and we are now in the process of replying to its motion for leave."

"There is nothing further of substance to report at this time."

John McIntyre, lawyer for K.S. 

Ontario Health Insurance Plan officials argue that a vaginoplasty without penectomy is experimental and therefore not eligible for public coverage. Photo by Getty Images

K.S. is a nonbinary Ontario resident who feels himself qualified under OHIP to have what is considered an experimental surgery not available in Canada, to be paid for through the province's health insurer. The Government of Ontario feels otherwise. What K.S. is opting for is surgery that would leave his original male genitalia intact while creating a vaginal cavity, that he feels is more expressive of his sexuality, neither male or female.

The surgery to which K.S. aspires, to suit his non-binary condition, involves constructing a 'neovagina' (vaginal cavity) without having his penis surgically removed. According to a study, about 200 people in Ontario annually undergo a penectomy, the resulting vaginal canal to complete the surgery being created with the use of penile and scrotal tissue. When the penis is left intact, the canal can be built with tissue grafted from other body parts as well as scrotal tissue.

OHIP in 2022 refused the patient identified in court records as K.S., funding request for surgery to be paid at a gender-reassignment clinic located in Texas. His doctor stated that retention of K.S.'s penis while seeking construction of a vagina is important for the simple reason that the patient is "not completely on the 'feminine' end of the spectrum", although he uses a female name and female pronouns. 

 

It is OHIP's contention that vaginoplasty minus penectomy is not listed among sex-re-assignment procedures in its schedule of benefits. When informed that the procedure is not eligible for public coverage, K.S. appealed the denial by OHIP to a tribunal. OHIP responded with the use of a Toronto surgeon's opinion concluding "current expert opinion would widely agree that the penile preservation vaginoplasty is experimental", rendering it ineligible for public funding.

The review board responded by overturning the OHIP refusal to fund the process; their argument that "vaginoplasty should be interpreted as including the penile-preserving technique", adding that vaginoplasty and penectomy are listed as separate services but a vaginoplasty need not necessarily include removal of the penis. The three-member Divisional Court panel held unanimously that vaginoplasty minus penectomy is "specifically listed" as an insurable service and the exclusion of experimental treatments have no application.

Denying the procedure for K.S. would infringe on the patient's Charter-protected rights, according to the Divisional Court ruling; insisting that a transgender or nonbinary person assigned male at birth "remove their penis to receive state funding for a vaginoplasty would be inconsistent with the values of equality and security of the person".

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