Davin News Server

The Court of Appeal says OHIP must cover surgery for a resident seeking to 
have a vagina constructed while leaving penis intact

Ontario's top court has ruled the province must cover the cost of an out-
of-country, penis-sparing vaginoplasty for a 'transgender and non-binary 
resident' who wishes to have both female and male genitalia.

In a unanimous decision released this week, a three-judge panel of the 
Ontario Court of Appeal confirmed a lower court's ruling ordering the 
Ontario Health Insurance Plan to pay for the patient, identified as K.S. 
in court records, to undergo the novel phallus-sparing surgery at a Texas 
clinic.

The latest ruling is the third unanimous decision in K.S.'s favour.

'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 a funding request 
for surgery to construct a vagina while sparing the penis, a procedure 
this is not available in Ontario, or anywhere else in Canada.

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.'

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.''

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,h 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.

https://nationalpost.com/news/canada/ohip-coverage-penis-sparing-
vaginoplasty