Ontarian wins legal battle for public funding of gender-affirming surgery argued as 'experimental'

K.S. is fighting for public funding of a surgery previously argued to be 'experimental' by the Ontario government. (Submitted through counsel)

An Ontario resident has successfully secured public funding for a specialized gender-affirming surgery argued to be "experimental" by the provincial health insurer following a years-long legal battle.

The prospective patient, identified only as K.S. in documents filed with the provincial Health Services Appeal and Review Board (HSARB), was 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.

Since 2023, K.S. has been engaged in a series of appeals to the review board following an initial denial by OHIP to cover the surgery. On April 10, a final appeal launched by OHIP was dismissed by the Divisional Court of the Ontario Superior Court of Justice.

K.S., whose identity is protected under a publication ban, identifies as non-binary. She presents as predominantly female and uses she/her pronouns, but does not align with the gender binary. The reason why K.S. is seeking this particular procedure is because it aligns with her identity – and having the provincial insurer previously deny her request made her feel “less than.”

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

Following Wednesday’s decision, K.S. said that she is "ecstatic" over the decision.

"I have been waiting for this day for years!!," she said in a statement given through her lawyer. "Though I know there is still time for OHIP to keep attempting to appeal this, I am relishing this day as it's an extraordinarily huge milestone."

For two years, K.S. has sought coverage for the operation. At this time, the procedure is only offered by a small number of private clinics, none of which are in Canada, and there is no peer-reviewed research on the outcomes of the technique.

K.S.' surgery, to be carried out at the Crane Center for Transgender Surgery in Austin, Texas, would align her body with her identity and put an end to the years of suffering through gender dysphoria, she said.

CTV News Toronto reached out to the Ontario Ministry of Health for comment but did not hear in time for publication.

A series of appeals

K.S. was first denied coverage for the procedure in 2022, with OHIP claiming it wasn't an insurable service.

She successfully overturned that decision in an appeal to the HSARB arguing, in part, her reason for wanting a vaginoplasty without a penectomy would validate her non-binary identity, putting an end to her gender dysphoria that she’s felt since her teenage years.

At that hearing, OHIP called Dr. Yonah Krakowsky, a sexual medicine surgeon at Women's College Hospital, who, although supporting patient autonomy, testified vaginoplasty without penectomy is considered experimental by most surgeons.

Still, K.S.' submissions that the procedure she seeks is identical to the process used with some vaginoplasties in the province were sufficient to see the panel rule in her favour.

But the legal battle didn't end there – OHIP launched its own appeal, and the matter went back to the Divisional Court. In this most recent hearing, held in February, the insurer argued that HSARB erred in deeming the surgery insurable and asked it to reconsider, once again describing the procedure as experimental and, therefore, not eligible for coverage.

On Wednesday, the panel of three judges of the Divisional Court unanimously found HSARB had not erred in its ruling, dismissing OHIP's appeal and ordering the insurer to pay K.S. $20,000 for legal costs. The board was correct with its interpretation, Justice Breese Davies wrote in the decision, adding it is consistent with the country's Charter values of equality and security of the person, and OHIP was being the opposite.

"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," Justice Breese Davies wrote in the decision, commenting on OHIP's "inconsistent" interpretation of the schedule of benefits.

If OHIP funding for vaginoplasties were supposed to be limited, the decision says that the list of insured services would have been drafted differently.

Further, the court decided that HSARB's conclusion that the term vaginoplasty includes this procedure is consistent with the World Professional Association for Transgender Health (WPATH) Standards of Care, the leading authority on gender-affirming medical and surgical care, especially as it recommends individualized treatment plans, which was in place at the time K.S. made her request for funding.

"This is a significant win for the transgender and non-binary communities. Gender-affirming care is medically necessary and ought to be funded by OHIP," John McIntyre, K.S.' legal representation in February's hearing, told CTV News Toronto in a written statement following the decision.

"We hope that OHIP decides to accept the decision of the Court rather than seeking leave to appeal so that K.S. can move forward with her surgery she has been trying to get for years now."

K.S. and McIntyre said they hope the decision encourages Canadian clinics to start offering such procedures, which would, in turn, allow for more data collection and patient feedback. For those looking to access funding for gender-affirming care, McIntyre adds his firm, McIntyre Szabo, is partnering with the 519 to pilot a Gender Affirming Care Legal Support Clinic starting this June.

"With the vast push rightward stemming from the recent strong anti-equality ideology, it's been a second dark ages for us in the 2SLGBTQIA+ community of late, so this very appropriate and correct verdict is a breath of fresh air," K.S. said.

"The fight for healthcare, rights, and equality is far from over, but to all the other trans, non-binary or gender nonconforming people out there, I want to tell them that there is hope," she continued. "Just keep going and never give up on who you are."

With files from CTV News Toronto's Abby O'Brien