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. 

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)