Ontario wins court case for public funding of gender-affirming surgery

An Ontario man has successfully secured public funding for specialized gender-affirming surgery that the provincial health insurer argued was “experimental” after a years-long legal battle.

A prospective patient identified only as KS in documents filed with the Provincial Health Services Appeals and Review Board (HSARB) requested coverage under the Ontario Health Insurance Plan (OHIP) for a penis-sparing vaginoplasty, a procedure that creates a vagina. it is performed surgically while preserving the genital organ.

Since 2023, KS has been dealing with a series of complaints to the review board after OHIP refused to close the operation. On April 10, the latest appeal launched by OHIP was rejected by the Divisional Court of the Superior Court of Ontario.

KS, whose identity is protected by a publication ban, identifies as non-binary. It is predominantly feminine and uses pronouns, but does not conform to the gender binary. KS's reason for seeking this procedure is because it suits her personality – and because the provincial insurer's previous rejection of her request made her feel “less than”.

“There were a few times where I had to excuse myself,” KC previously told CTV News Toronto. “Trans or non-binary people don't have to get that permission to live.”

After Wednesday's decision, KS said he was “ecstatic” about the decision.

“I've been waiting for this day for years!!,” she said in a statement through her lawyer. “Even though I know OHIP still has time to appeal this, I'm excited for this day because it's a very important milestone.”

For two years, KS tried to shut down the operation. Currently, the procedure is offered by only a small number of private clinics in Canada, and there are no peer-reviewed studies on the results of the technique.

KS's surgery, which will be performed at the Crane Center for Transgender Surgery in Austin, Texas, will bring her body back in line with her identity and end years of suffering through gender dysphoria, she said.

CTV News Toronto reached out to the Ontario Ministry of Health for comment, but did not hear back by press time.

A series of appeals

KS was first denied coverage for the procedure in 2022, when OHIP said it was not an uninsurable service.

She successfully overturned the decision on appeal to the HSARB, citing in part that she wanted a penectomy-free vaginoplasty to affirm her non-binary identity and end the gender dysphoria she had felt since adolescence.

At the same hearing, OHIP called Dr. Yona Krakowski, a reproductive medicine surgeon at Women's College Hospital, who, although she supports patient autonomy, considers vaginoplasty without a penectomy to be experimental by many surgeons.

However, KC's assertion that the procedure she sought was similar to that used with some vaginoplasty in the province was enough to sway the panel's ruling in her favor.

But the legal battle didn't end there – OHIP launched its appeal and the case went back to the Divisional Court. At the latest hearing in February, the insurer argued that HSARB erred in deeming the operation covered by insurance, again describing the procedure as experimental and asking for a review and therefore not eligible for coverage.

On Wednesday, a three-judge panel of the Divisional Court unanimously found that HSARB did not err in its decision, dismissed OHIP's claim and ordered the insurer to pay $20,000 in legal costs. The board was correct in its interpretation, Judge Breese Davis wrote in the decision, that it was consistent with the nation's statutory values ​​of equality and safety, while OHIP was the opposite.

“Such an explanation does not allow transgenders, K.S. such as forcing non-binary people to choose an operation that they don't want (penectomy) and to choose one that doesn't match their gender expression in order to receive government funding, on the one hand, affirming non-gender-surgery at all, on the other. Such a choice reinforces their disadvantage and does not promote their dignity and autonomy,” Judge Breese Davis wrote in the decision, commenting on OHIP's “inconsistent” interpretation of the benefit schedule.

If OHIP funding for vaginoplasty were to be limited, the ruling said the list of covered services would be drafted differently.

Further, the court ruled that HSARB's conclusion that the term vaginoplasty included the procedure was consistent with the standards of care of the World Professional Association for Transgender Health (WPATH), the leading body on gender-affirming medical and surgical care, specifically providing individualized treatment. K.S. Plans in place at the time of applying for funding.

“This is an important victory for the transgender and non-binary communities. “Gender care is medically necessary and should be funded by OHIP,” John McIntyre, KS' legal representative at the February hearing, said in a written statement to CTV News Toronto. after the decision.

“We hope that OHIP will decide to accept the court's decision so that KS can continue to operate, as it has been trying to do for years, rather than seeking leave to appeal.”

KS and McIntyre hope the ruling will encourage Canadian clinics to begin offering similar procedures, which in turn will allow for more data collection and patient feedback. For those looking to access funding for gender-affirming care, McIntyre is partnering with her firm, McIntyre Szabo, to pilot a 519 Gender Care Legal Support Clinic starting this June.

“It's been a second dark age for us in the 2SLGBTQIA+ community lately, with a huge rightward push fueled by a strong anti-equality ideology, so this very appropriate and correct verdict is a breath of fresh air,” KS said.

“The fight for healthcare, rights and equality is far from over, but to other trans, non-binary or gender non-conforming people, I want to tell them there is hope,” she continued. “Just keep going and never give up on who you are.”

With files from CTV News Toronto's Abby O'Brien