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Ontario must pay for surgery to give trans resident both penis and vagina: appeal court
Ontario’s top court has ruled the province must cover the cost of a penile-sparing vaginoplasty for a transgender resident who does not identify as exclusively female or male and who wishes to have both genitalia.
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In a unanimous decision released this week, a three-judge panel of the Ontario Court of Appeal confirmed a lower court’s ruling that the novel phallus-preserving surgery qualifies as an insured service under the Ontario Health Insurance Plan.
The latest ruling is the third unanimous decision in favour of the patient, identified as K.S. in court records.
“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 its regulation,” K.S.’s lawyer, John McIntyre, said in an email to National Post.
The legal battle between K.S., whose sex at birth was male, dates to 2022, when the Ontario Health Insurance Plan (OHIP) refused her request to pay for the cost of surgery at a Texas clinic to construct a vagina while sparing the penis, a procedure this is not available in Ontario, or anywhere else in Canada.
K.S. uses female pronouns but does not identify as either fully female or fully male.
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OHIP argued that, because the vaginoplasty would not be accompanied by a penectomy, the procedure isn’t one specifically listed in OHIP’s Schedule of Benefits and therefore shouldn’t be publicly funded. OHIP also argued that the requested surgery is considered experimental in Ontario and, thus, also ineligible for coverage.
K.S. appealed to the Health Services Appeal and Review Board, which overturned OHIP’s refusal, arguing that “vaginoplasty” should be covered, whether a penectomy, a separate procedure included on the list of publicly funded sex-reassignment surgeries, is performed or not.
OHIP appealed that decision to the Divisional Court but lost again after the panel dismissed the province’s appeal and declared the surgery, which leaves intact a functioning penis, an insured service.
The province’s latest appeal was heard on Nov. 26. The three-judge appeal court panel rejected OHIP’s arguments that the proposed surgery isn’t an insured service because it won’t be accompanied by removal of the penis — a penectomy “neither recommended by K.S.’s health professionals nor desired by K.S.,” according to the court’s written decision.
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 court said.
K.S.’s doctor submitted a request to OHIP for prior funding approval for the surgical creation of a vaginal cavity and external vulva. The request made it clear that K.S. wasn’t seeking a penectomy.
In a letter accompanying the request, her doctor said 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, adding that the Crane Center for Transgender Surgery in Austin, Tx.,”has an excellent reputation” for gender-affirming surgery, “and especially with these more complicated procedures.”
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The appeal court ruled that the divisional court did not err in holding that the requested vaginoplasty is listed in the Schedule of Benefits, with or without an accompanying penectomy.
“The existence of different techniques to perform a vaginoplasty does not affect this conclusion,” the appeal court’s written decision reads. “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,” the court said.
“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.”
The World Professional Association for Transgender Health’s standards of care, the appeal court added, also “expressly refers to ‘penile preserving vaginoplasty’ as a surgical option for some non-binary people and also note that vaginoplasty ‘may include retention of penis and/or testicle.’”
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Ontario has until June 23, 2025, to seek leave to the Supreme Court of Canada.
“As this matter is within the appeal period, it would be inappropriate to comment further,” said a spokesperson for Ontario’s Ministry of the Attorney General.
In dismissing OHIP’s appeal, the court ordered Ontario to pay K.S. $23,250 in costs.
Gender-affirming surgeries at the Texas clinic range from US$10,000 to $70,000, depending on the procedures performed.
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