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Transgender - OHIP. Ontario (Health Insurance Plan) v. K.S.
In Ontario (Health Insurance Plan) v. K.S. (Div Court, 2024) the Divisional Court dismissed an OHIP appeal under Health Insurance Act [s.24(1,4)], where the primary issue was that a "vaginoplasty without penectomy" was "not a listed procedure in the Schedule of Benefits" "and is, therefore, not an insured service."
Here the court discusses gender-affirming surgical procedures, with specific focus on OHIP coverage:C. The Board hearing and decision
[10] In the June 2022 letter denying K.S.’s request for funding, OHIP stated as follows:Vaginoplasty (including penectomy, orchidectomy, clitoroplasty and labiaplasty) is an insured OHIP service when the criteria for payment is met, as set out in Appendix D to the Schedule of Benefits for Physician Services (the “Schedule”). Penile Preserving Vaginoplasty or Vaginoplasty (without penectomy) is not listed as a procedure in Appendix D of the Schedule. Therefore, this is not an insured service under OHIP. There are no provisions under the Health Insurance Act or its Regulations that permit OHIP to pay for an uninsured service or part of an uninsured service. For this reason the ministry cannot approve this request at this time. [11] K.S. appealed that decision to the Board. K.S. gave three reasons for wanting a vaginoplasty without also having her penis removed. First, because she is non-binary and having her penis removed would invalidate her non-binary identity. Second, because of the risk of complications and urinary incontinence from the penectomy. Third, because of the risk of orgasm dysfunction if her penis is removed.
[12] K.S. argued that the vaginoplasty procedure she wants is identical to the process used to perform some vaginoplasties in Ontario. The only difference is she is not also asking to have an additional procedure, namely a penectomy.
[13] OHIP adduced evidence from Dr. Krakowsky, the medical lead for gender affirming surgery at Women’s College Hospital in Toronto, at the hearing before the Board. Dr. Krakowsky is one of only a handful of surgeons who perform vaginoplasties in Ontario.
[14] In his report, Dr. Krakowsky explained there are three ways for a vaginoplasty to be performed. The most common surgical technique is penile inversion vaginoplasty in which the penis is removed and the penile tissue is used to construct the vaginal cavity, labia and clitoris. Dr. Krakowsky gave evidence that in some circumstances, an alternative approach is required. Dr. Krakowsky described two other techniques that are used when a penile inversion is not possible: peritoneal pull through vaginoplasty (“PPV”) and rectosignmoid vaginoplasty (“RSV”). In both PPV and RSV procedures, non-penile tissue is used to construct the vagina and labia.
[15] Dr. Krakowsky testified that he has never performed a vaginoplasty without penectomy. Dr. Krakowsky opined that vaginoplasty without penectomy is considered experimental by most surgeons. Dr. Krakowsky explained that there is not enough current data to determine the efficacy of vaginoplasty without penectomy.
[16] K.S. argued before the Board that she was asking for funding to have a PPV or RSV, which are accepted surgical techniques for conducting a vaginoplasty. She argued that because her penile tissue is not needed to construct a vagina and labia in a PPV or RVS, her penis need not be and should not be removed.
[17] The Board found that vaginoplasty without penectomy is eligible for OHIP funding (assuming the insured person meets all the other conditions in the Schedule of Benefits for gender affirming surgery). The Board noted that paragraph 17 of Appendix D to the Schedule of Benefits lists vaginoplasty and penectomy as separate surgeries. The Board found that the term “vaginoplasty” in the Schedule of Benefits does not necessarily include a penectomy and is insured as a gender affirming surgery on its own. In reaching this conclusion, the Board also relied on the fact that Appendix D to the Schedule of Benefits makes explicit reference to the “World Professional Association for Transgendered Health (WPATH) Standards of Care that are in place at the time”. The Board found that the Legislature must have intended the Schedule of Benefits to be interpreted in a manner that is consistent with the WPATH Standards of Care, which encourage an individualized approach to gender affirming care.
[18] Having found that vaginoplasty without penectomy is a specifically listed service in paragraph 17 of Appendix D to the Schedule of Benefits, the Board found that it did not have to consider whether the treatment was experimental because the exclusion for experimental treatments does not apply to specifically listed services.
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[25] In my view, the Board was correct to find that vaginoplasty without penectomy is “specifically listed” in the schedule of benefits for three reasons. First, the Board’s interpretation is consistent with the grammatical and ordinary meaning of the relevant provisions. Second, the Board’s interpretation is consistent with the Legislature’s intention. And third, if there is any ambiguity in the language of the provision, the Board’s interpretation is consistent with Charter values.
a. The Board’s conclusion is consistent with the grammatical and ordinary meaning of the relevant provisions
[26] To understand why the Board’s decision that vaginoplasty without penectomy is “specifically listed” is consistent with the grammatical and ordinary meaning of the relevant provisions, it is necessary to set out the provisions of the Schedule of Benefits under Regulation 552 to the Act in some detail.
[27] Paragraph 17 of Appendix D to the Schedule of Benefits states:Sex-reassignment surgical procedures listed in this section are insured services when prior authorization has been obtained from the [Ministry of Health].
A request for prior authorization must be submitted with an assessment that recommends the surgery. [28] Part B of paragraph 17 of Appendix D to the Schedule of Benefits sets out the specific requirements “sex-reassignment” surgery to be approved. The relevant portion reads as follows:Prior authorization for sex-reassignment surgery will only be provided when the following requirements have been met and only for the specific services listed:
1. External Genital Surgery (clitoral release, glansplasty, metoidioplasty, penile implant, phalloplasty, scrotoplasty, testicular implants, urethroplasty, vaginectomy, penectomy, vaginoplasty)
a. Two supporting assessments from appropriately trained providers confirming that the patient is an appropriate candidate for surgery as follows:
i. One assessment from a physician or nurse practitioner; and
ii. One assessment from a different physician, different nurse practitioner, registered nurse, psychologist, or regulated social worker; and
b. The supporting assessments confirm that the insured person meets all of the following criteria:
i. Has a diagnosis of persistent gender dysphoria;
ii. Has completed twelve (12) continuous months of hormone therapy (unless hormones are contraindicated);
iii. Has completed twelve (12) continuous months of living in a gender role that is congruent with their gender identity; and
iv. Is recommended for surgery. [Emphasis added.] [29] There is no dispute that K.S. submitted the required assessments and meets the criteria for external genital surgery. The question is whether the type of surgery K.S. wants and her medical team recommends – vaginoplasty without penectomy – is “specifically listed” as an insured service in Part B of paragraph 17 of Appendix D to the Schedule of Benefits.
[30] OHIP agrees that vaginoplasty is a category of surgery that is eligible for funding in some circumstances. However, OHIP argues that just because vaginoplasty is listed, that does not mean every type of vaginoplasty or every procedure for performing a vaginoplasty must be funded. OHIP argues that although “vaginoplasty” is included in the categories of procedures in paragraph 17 of Appendix D, “vaginoplasty without penectomy” is not specifically listed and is, therefore, not insured. OHIP adduced evidence at the hearing before the Board that vaginoplasties without penectomy are not performed in Ontario. Dr. Krakowsky testified that vaginoplasties without penectomy is considered experimental in Ontario because there is no peer-reviewed literature on when would be appropriate and no long-term data on the psychological or physical outcomes of such procedures. OHIP argues it would be absurd to conclude that the Legislature intended to include an experimental procedure in the list of insured services.
[31] I do not agree with OHIP’s position. In essence, OHIP is asking this court to find that although the Legislature decided to list vaginoplasty as a separate, stand-alone procedure in the list of surgeries in paragraph 17 to Appendix D, the Legislature intended only one type of vaginoplasty – vaginoplasty with penectomy – to be insured.
[32] OHIP’s position is inconsistent with the plain meaning of the provision.
[33] In Part B of paragraph 17 of Appendix D to the Schedule of Benefits vaginoplasty and penectomy are listed separately:Prior authorization for sex-reassignment surgery will only be provided when the following requirements have been met and only for the specific services listed:
2. External Genital Surgery (clitoral release, glansplasty, metoidioplasty, penile implant, phalloplasty, scrotoplasty, testicular implants, urethroplasty, vaginectomy, penectomy, vaginoplasty) [Emphasis added.] [34] The comma between each procedure suggests they are discrete, separate procedures that are eligible for funding if the conditions for prior approval are sought. The preamble describes them as “specific services.” The plain, grammatical meaning of the preamble and the list, as drafted, is that each of the listed surgeries is eligible for funding on its own with prior approval. The fact that most people who have a vaginoplasty have it done in a way that also involves a penectomy does not change the plain and grammatical meaning of paragraph 17 of Appendix D.
[35] If the Legislature intended to limit the availability of OHIP funding to vaginoplasties that are performed as a penile inversion vaginoplasty or otherwise at the same time as a penectomy, it would have drafted the list in paragraph 17 differently. Contrary to the submission of counsel, this issue is not simply a matter of how the surgery is performed. Some vaginoplasties involve a penectomy if they are done using the penile-inversion method and the penile tissue is used to construct the vagina and labia. However, some vaginoplasties are performed using non-penile tissue. In those cases, a penectomy is not required to conduct the vaginoplasty. If the Legislature intended to only fund sex-reassignment vaginoplasties that also involve a penectomy (either as part of the vaginoplasty or otherwise), it could and should have used limiting language in the list of external genital surgeries that are eligible for funding.
b. The Board’s interpretation is consistent with the Legislature’s intent
[36] The Board’s conclusion that the term “vaginoplasty” means “vaginoplasty without penectomy” is also consistent with the Legislature’s decision to incorporate the World Professional Association for Transgendered Health (WPATH) Standards of Care in paragraph 17 of Appendix D.
[37] Someone seeking funding for gender affirming surgery is required to submit two assessments confirming they are an appropriate candidate for surgery. Part B of paragraph 17 of Appendix D states that the assessments must be done by a medical service provider “trained in assessment, diagnosis, and treatment of gender dysphoria in accordance with the World Professional Association for Transgendered Health (WPATH) Standards of Care that are in place at the time of the recommendation.”
[38] The WPATH Standards of Care recommend that health care professionals provide non-binary people with “individualized assessment and treatment that affirms their non-binary experiences of gender.” The WPATH Standards of Care expressly refer to vaginoplasty without penectomy as a surgical option for some non-binary people:Additional surgical requests for nonbinary people [assigned male at birth] include penile-preserving vaginoplasty, vaginoplasty with preservation of the testicle(s), and procedures resulting in an absence of external primary sexual characteristics (i.e. penectomy, scrotectomy, orchiectomy, etc.). [39] The WPATH Standards of Care also contain a list of gender affirming surgical procedures. That list includes “Vaginoplasty (inversion, peritoneal, intestinal)”. The note accompanying vaginoplasty in the WPATH Standards of Care says the procedure “may include retention of penis and/or testicle.”
[40] The Board was correct to find that by referencing the “WPATH Standards of Care in place at the time of the recommendation” in Appendix D to the Schedule of Benefits, the Legislature must have intended the Schedule of Benefits to be interpreted in a manner that is consistent with those standards as they evolve. The WPATH Standards of Care in place at the time K.S. made her request for funding support an interpretation of paragraph 17 of Appendix D that allows non-binary individuals, with the support of their WPATH trained provider, to select from among the listed surgeries, including a vaginoplasty without a penectomy.
[41] OHIP’s interpretation of paragraph 17, which limits funding to those who are seeking a vaginoplasty with penectomy, is inconsistent with the WPATH Standards of Care which recommend individualized treatment plans for non-binary people that affirm their experience of gender.
c. The Board’s interpretation is consistent with Charter values
[42] Given my conclusion that the Board’s interpretation is correct based on a plain reading of the Schedule of Benefits, I do not need to address the Charter arguments made by K.S. and supported by the intervener. However, if there was an ambiguity in the language of Part B of paragraph 17 of Appendix D to the Schedule of Benefits, the Board’s interpretation is also consistent with Charter values of equality and security of the person.
[43] The Charter-protected right to security of the person safeguards individual dignity and autonomy. Our law has long protected a patient’s freedom to make decisions about their healthcare and bodily integrity: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 64-67. Section 15 of the Charter guarantees every individual the right to equal treatment before and under the law, and the right not to be discriminated against based on enumerated and analogous grounds.
[44] The Supreme Court of Canada has recognized that the history of transgender and other gender non-conforming people in Canada has been marked by discrimination and disadvantage. The Supreme Court noted that transgender people occupy a unique position of disadvantage in our society, particularly in relation to housing, employment and healthcare: Hansmand v. Neufeld, 2023 SCC 14, at paras. 84-86.
[45] I find that interpreting Part B of paragraph 17 of Appendix D to the Schedule of Benefits in a way that requires 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. 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.
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