Ontario’s publicly funded health insurance plan must pay for a special procedure in Texas for a non-binary person seeking gender-affirming care, the province’s Divisional Court has ruled.
The procedure, not available in Ontario, involves receiving a vagina while still keeping a penis.
The 3-0 ruling by Ontario’s Divisional Court this week is the first from a court in that province on gender-affirming care, and in particular, on treatment for non-binary people, said lawyer John McIntyre, who was involved in the case. He said he was not aware of a similar ruling elsewhere in Canada.
Two years ago, an adult known in court documents as K.S. requested Ontario Health Insurance Plan funding for the surgery in Texas, saying they did not want to invalidate their non-binary identity, or increase the risk of urinary incontinence and orgasm dysfunction, by having their penis removed.
But OHIP rejected the request, asserting that a vaginoplasty without a penectomy, as the surgery is known, is not a listed procedure in the Health Insurance Act’s schedule of benefits. K.S. appealed that decision to the Health Services Appeal and Review Board, which overturned OHIP’s ruling, saying the procedure is in fact listed. OHIP appealed to Divisional Court (the Superior Court sitting in panels of three for appeals from administrative tribunal decisions).
Key to the Divisional Court ruling was its finding that Ontario had incorporated an international standard of medical care for transgender people into its health insurance law. That standard of care is set out by the World Professional Association for Transgendered Health, and recommends individualized treatment plans for non-binary people that “affirm their experience of gender,” the court said. And the association expressly refers to the vaginoplasty without penectomy as an option for some.
The ruling was not, for the most part, about the Charter of Rights and Freedoms. It was a matter of interpreting the health insurance law. That law mentions vaginoplasty in its list of benefits. If legislators had wished to exclude the surgery sought by K.S., they would have written that exclusion into the law, Justice Breese Davies wrote. Her ruling was endorsed by Justice Mark Edwards and Justice Harriet Sachs.
OHIP argued that the specific treatment of vaginoplasty without penectomy is not mentioned in the listed benefits, and is experimental, and therefore not covered. But the court said specifically listed benefits are not restricted if they are experimental. Only benefits not listed may be restricted for this reason.
The court said that while the law’s meaning was clear on a plain reading of it, the judges would have relied on “Charter values” to settle the dispute, had different interpretations been plausible.
It said the Charter of Rights protects the right to equality and security of the person, which includes autonomy and bodily integrity.
Interpreting the health insurance law to require transgender or non-binary people assigned male at birth “to remove their penis to receive state funding for a vaginoplasty would be inconsistent with the values of equality and security of the person,” Justice Davies wrote.
“Such an interpretation would force transgender, non-binary people like K.S. to choose between having a surgery [penectomy] they do not want and which does not align with their gender expression to get state funding, on the one hand, and not having gender affirming surgery at all, on the other. Such a choice would reinforce their disadvantaged position and would not promote their dignity and autonomy.”
While Divisional Court rulings apply only in Ontario, the judgment could be influential in other parts of the country, depending on the wording of provincial health-insurance laws.
Mr. McIntyre, one of K.S.’s lawyers, said the ruling has broad importance. “The unanimous panel of three judges of the Divisional Court set out important principles that will be instrumental in continuing the fight to expand access to health care for the trans and non-binary communities.”
He said he is hopeful that Canadian clinics will start offering this procedure and others, now that they are funded.
K.S., who is described in the court ruling as non-binary though female-dominant, and uses the pronouns “she” and “they,” declined to be interviewed. But she issued a statement saying she was “ecstatic.” (The Globe is using “she” because her lawyers used it in written materials.)
“I hope this decision helps set a foundation of inclusivity in non-binary and trans health care, where no one is left on the sidelines burdened by a life of health care costs that are already insured for others,” K.S., who is in her early thirties, said.
She said no cost estimate for the surgery has been provided yet. Ontario required K.S. to obtain prior approval, and so no advanced consultation has been done with doctors in Texas.
Ontario’s Health Ministry did not respond to requests for comment.
Sean Fine