Ontarian takes OHIP to court for gender-affirming surgery funding

Here is what gender-affirming care actually means WATCH: Full interview with a nurse practitioner from the gender-affirming care clinic for children and youth at Sudbury, Ont., hospital.

An Ontario resident is fighting the government to secure public funding for a specialized gender-affirming surgery argued to be "experimental" by the provincial health insurer.

The prospective patient, identified only as K.S. in documents filed with the provincial Health Services Appeal and Review Board (HSARB), is seeking coverage under the Ontario Health Insurance Plan (OHIP) for a penile-preserving vaginoplasty, a procedure in which a vaginal cavity is surgically created while keeping the penis intact.

“There have been so many times that I have had to justify myself to just be,” K.S. told CTV News Toronto in a statement submitted through her counsel. “People who aren’t trans or nonbinary don’t have to get that permission to exist.”

K.S., whose identity is protected under a publication ban, identifies as nonbinary. She presents as predominantly female and uses she/her pronouns, but does not align with the gender binary.

The procedure she seeks is not widely practiced. In what most consider a traditional vaginoplasty, the erectile tissue is inverted to create a vaginal cavity. In a penile-preserving vaginoplasty, the vaginal cavity is created using a skin graft instead. There is currently no peer-reviewed research on the outcomes of the technique, only offered by a small number of private clinics, none of which are in Canada.

Since 2023, K.S. has been engaged in a series of appeals put forth to the review board following an initial denial by OHIP to cover the surgery.

Having experienced gender dysphoria since her teenage years, K.S. first applied for funding in 2022, seeking to have the surgery performed at the Crane Center for Transgender Surgery in Austin, TX. OHIP denied her request, claiming it wasn't included in the list of insured services under OHIP.

Without coverage, K.S. said undergoing the procedure would be nearly impossible – it costs tens of thousands of dollars that she doesn’t have.

READ MORE: What gender-affirming care is and how it can be life-saving

The legal battle that has played out in front of the review board has seen K.S. repeatedly make her case for why such a specialized procedure is medically necessary, measuring years of suffering through gender dysphoria against the assumed risk of a procedure not yet in the mainstream.

“The absurdity of managing to get through all the unjustly imposed barriers only to still be told that my surgical request is not valid has been heartbreaking,” she said.

When reached for comment, the Ministry of Health, which oversees health insurance in Ontario, said it could not comment on cases that are before the review board.

The case unfolds a critical juncture for transgender care in Canada  — just weeks ago, Alberta unveiled sweeping policy changes including a ban for all gender-affirming surgeries for minors aged 17 and under  — and, according to experts, could stand to inform national conversations of access to healthcare faced by non-binary population across the country.

Legal lens on gender identity

With no options to secure the surgery outside of insurance, K.S. appealed the government’s initial denial of funding in April 2023.

“I felt I had no choice," she said. “There quite literally is no ‘do or don’t’ when it comes to treating gender dysphoria.”

Throughout the two-day hearing, lawyers representing the province argued that for a vaginoplasty to be considered an insurable service, a patient also needed to undergo a penectomy, as is considered the standard of practice in Ontario.

It called upon Dr. Yonah Krakowski, a sexual medicine surgeon at Women’s College Hospital, to provide expert testimony. Krakowski said that, while he supports patient autonomy, he believed wider expert opinion would deem the procedure sought by K.S. as “experimental” at this time.

Self-represented, K.S. argued, in part, that the denial singled her out based on gender identity and that nowhere in the provincial legislation or regulations was it a requirement that someone transition from one binary gender to another in order to be eligible for funding.

During the hearing, K.S. put forth “impressive legal challenges,” lawyer John McIntyre told CTV News. McIntyre, now representing K.S. in OHIP’s recent appeal.

“The process was incredibly challenging for her, as she was not only up against lawyers and the government, but she was having to fight against the view that her identity was not valid,” McIntyre said.

The challenge proved worth it – five months later, the three-person review panel ruled in K.S.’ favour. Her procedure, now deemed an insured service, would be paid for.

The victory didn’t come easily, K.S. said. “More than once during the legal process, the impacts of statements and opinions expressed by OHIP and its lawyers drove me to tears, messed with my sleep, and caused significant anxiety, unintended weight loss, and chest pains,” she said.

But it wasn’t long before OHIP filed its own appeal. Now, despite the unanimous ruling last year in her favour, K.S. must make her case for the panel for a second time — the thought of which brings her “despair.”

“The very idea that one should have to endure the significant legal process after already having to fight every single aspect of the medical system to just meet the criteria is unfair,” she said.

McIntyre called his client one of the “bravest people” he’s ever met.

“The only reason why she keeps pushing is the hope she can protect other trans and nonbinary folks from having to endure the same problems,” he said.

The case reflects wider issues: experts

This time, K.S. isn’t alone in her fight for funding. McIntyre and Egale, a non-profit organization advancing equality and justice for LGBTQ2S+ Canadians, are helping her navigate OHIP’s appeal.

In early January, Egale signed on as an intervenor in the case.

"The concern I have is this a tendency to treat these requests [...] as experimental," counsel for Egale, Daniel Girlando, told CTV News Toronto.

Girlando said the organization decided to step in, in part, because it feels that the ability to express one’s self in a way that doesn’t “necessarily reflect a binary gender” is important. “That means that some [OHIP applicants] will have customized requests,” he said.

The lawyer pointed to the World Professional Association of Transgender Health (WPATH), a leading authority on gender-affirming medical and surgical care, for guidance in this case. The WPATH’s Standard of Care guidelines note that “gender diverse presentations may lead to individually customized surgical requests some may consider ‘non-standard.’”

“In this evolving world, where standards are fast-changing and when we’re dealing with a small number of population, are we supposed to wait, what, years before there is enough data to deem these procedures experimental?” Girlando questioned.

Some experts say that’s exactly what Ontario should do.

Kinnon MacKinnon, an assistant professor at York University who studies the intersection of healthcare and gender, said in this case, the province will have difficulty establishing a risk-to-benefit ratio, as it has no data to draw from.

“In terms of medical ethics, clinical decision making, and funding, the risk-to-benefit ratio has to be favourable and with there being no studies, it would be hard to make the argument that the procedure is medically necessary,” he told CTV News in an interview last week.

“I think the priority right now should be to collect higher quality and long-term outcomes data to inform better care because I think we need a better sense of long-term outcome following certain surgeries,” he continued.

K.S. agrees more data collection is needed, but claims the province is failing to invest in the effort.

"They never get to collect the data because people like me are generally firewalled before we can get there," she said.

While K.S. said the harm done to her over the last two years has been “irreparable," she hopes to pave the way for others to express themselves freely.

“Our fundamental existence is not optional," she said. "There’s a reason we see higher suicide rates for trans and non-binary people, and a positive ruling will save lives."

OHIP’s appeal will be heard virtually on Feb. 27.