Ontario ends legal battle to avoid covering surgery for non-binary resident who wants a vagina while keeping a penis

A non-binary Ontario resident’s years-long battle for a publicly funded, out-of-country surgery to have a vagina surgically created while maintaining a penis is over. The Ontario government says it won’t ask the Supreme Court of Canada to review a lower court’s ruling in April declaring that the novel phallus-preserving surgery qualifies as an insured service under the Ontario Health Insurance Plan (OHIP) — the latest win for the patient, identified only as K.S. The province had until June 23 to seek leave to appeal the April court ruling to the country’s highest court. In an email to National Post this week, a spokesperson for Ontario’s Ministry of the Attorney General said the government won’t pursue the case. It’s not clear how requests for similar niche gender surgeries will be decided or adjudicated in the future. The lengthy legal battle between K.S., who was born male, dates back to 2022. K.S. does not identify as either exclusively female or male, but is female dominant and uses feminine or neutral pronounces (she/her/they/them). According to court records, K.S. “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.” In 2022, her Ottawa doctor requested pre-approval from OHIP for a vaginoplasty — the surgical creation of a vaginal cavity — but without a penectomy, which is when the penis is removed. In a letter to OHIP, K.S.’ doctor said that her patient “identifies as trans feminine but not completely on the ‘feminine’ end of the spectrum and for this reason it’s important for her to have a vagina while maintaining a penis.” A vaginoplasty without a penectomy isn’t available in Canada and, therefore, the funding was to have the procedure done at the Crane Center for Transgender Surgery in Austin, Texas, which “has an excellent reputation (for gender-affirming surgery) and especially with these more complicated procedures,” the doctor wrote to OHIP. OHIP denied the coverage, arguing a vaginoplasty without removal of the penis isn’t listed as a separate, specific procedure under its schedule of benefits, and therefore didn’t qualify for coverage. K.S. appealed OHIP’s denial of coverage to a tribunal. K.S. testified to concerns about the risk of urinary incontinence if she went through with a penectomy, “the risk of losing the ability to experience an orgasm and the concern that removing her penis would invalidate her non-binary identity,” according to court documents. The review board overturned OHIP’s refusal, arguing that vaginoplasty and penectomy are listed as separate, sex reassignment procedures covered by OHIP, and that a vaginoplasty need not inherently include removal of the penis. OHIP appealed to the Ontario Divisional Court, but lost again when a three-member panel of judges unanimously backed the tribunal’s position. That court also said that denying the procedure would infringe on K.S.’ Charter-protected rights. The court concluded that insisting that a transgender or non-binary person born a biological male “remove their penis to receive state funding for a vaginoplasty would be inconsistent with the values of equality and security of the person.” OHIP appealed again, losing a third time to the Ontario Court of Appeal which, in another unanimous decision released in April, dismissed OHIP’s appeal and confirmed the lower court’s ruling. The three-member panel of judges for the appeal court said a penectomy was “neither recommended by K.S.’ health professionals nor desired by K.S.” and that it was up to the drafters of OHIP’s list of insured services to describe each sex reassignment procedure “in broad or narrow terms. “Here, the description chosen, ‘vaginoplasty,’ is broad enough to encompass different techniques,” the appeal court said. “There is no suggestion that the existence of different techniques of performing a vaginoplasty detract from the more basic notion that the procedure recommended for K.S. is still vaginoplasty.” Egale Canada, which appeared as an intervener for K.S., has described the surgical care K.S. sought as one that “challenges expectations and stereotypes of gender and surgical transition.” “An interpretation of the eligibility criteria for gender-affirming surgeries that relies on binary stereotypes is discriminatory and denies equal dignity and autonomy to nonbinary people,”  the LGBTQ rights group has said. K.S.’s lawyer, reached Friday, referred National Post to previous comments, made after a prior victory in the courts. “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 regulations,” John McIntyre said. National Post

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