Neither Nor, But Preferentially, Both

"K.S. is pleased with the Court of Appeal's decision, which is now the third unanimous ruling confirming that her gender affirming surgery is covered under Ontario's Health Insurance Act and the regulations."

John McIntyre, lawyer

 

"[K.S., who is in her early 30s], has experienced significant gender dysphoria since her teenage years, as well as physical, mental and economic hardships to transition her gender expression to align with her gender identity."

"The existence of different techniques to perform a vaginoplasty does not affect this conclusion. It was open to the drafters of the Schedule of Benefits to describe each specifically listed service in broad or narrow terms."

"Here the description chosen, 'vaginoplasty', is broad enough to encompass different techniques."

"As the [Health Services Appeal and Review] Board put it, a vaginoplasty without a penectomy is an insured service because it is still a vaginoplasty, a specifically listed service."

Ontario Court of Appeal 

The Ontario Court of Appeal is seen in Toronto   Photo by Colin Perkel /The Canadian Press

 

A transgender resident of Ontario who identifies neither as exclusively female nor male and whose wish it is to have both genitalia in nature assigned to either a man or a woman, has had her wish granted by Ontario's top court. And now the Ontario Health Insurance Plan (OHIP) has no choice but to cover the cost involved in a penile-retention vaginoplasty for this resident of Ontario, thanks to a unanimous decision by a three-judge panel of the Ontario Court of Appeal which confirmed a lower court's ruling that found the novel phallus-preserving surgery qualifies as an insured service under OHIP.

 

K.S., identified at birth as a male, had embarked on a legal battle with OHIP in 2022, when the provincial health insurer refused her application for a funding request to undergo surgery at a Texas clinic which specializes in constructing vagina, and sparing the penis. This is a medical procedure not available anywhere in Canada, much less in the province of Ontario. While making use of female pronouns, K.S. identifies as neither fully female nor fully male.

 

Because the proposed vaginoplasty would not be paired by a penectomy, OHIP argued the procedure, not specifically listed in its Schedule of Benefits, was not eligible for public funding. The requested surgery, OHIP argued, is furthermore considered experimental in Ontario, which also makes it ineligible for coverage. Dissatisfied with the ruling, K.S. applied to the Health Services Appeal and Review Board. In its turn the Board overturned the OHIP refusal of coverage with the argument that 'vaginoplasty' should be covered, irrespective of whether a penectomy as a separate procedure was included. 

 

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

 

OHIP lost once more after appealing that decision to the Divisional Court, when the panel dismissed the province's appeal, declaring the surgery an insured service. Now, finally, the latest appeal saw the Appeal Court panel reject OHIP's arguments turning down the proposed surgery because it it is not recognized as an insured service, since removal of the penis will not accompany it. 

The original request to OHIP for prior funding approval for the surgical creation of a vaginal cavity and external vulva was submitted by K.S.'s physician; a request that clearly ssated K.S. did not wish a penectomy. Her doctor stated that because K.S. is "not completely on the 'feminine end of the spectrum", it was important for her to have a vagina while maintaining her penis. The Crane Center for Transgender Surgery in Austin Texas, "has an excellent reputation" for gender-affirming surgery, "and especially with these more complicated procedures".

 

The Appeal Court added that the World Professional Association for Transgender Health standards of care "expressly refers to 'penile preserving vaginoplasty' as a surgical option for some non-binary people", and also notes that "vaginoplasty 'may include retention of penis and/or testicle'." In finding for the plaintiff, the court ordered Ontario to compensate K.S.'s costs of $23,250. A financial burden that will include the cost of gender-affirming surgeries at the Texas clinic that range from $20,000 to $70,000 (U.S.), dependent on procedures undertaken.