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Transgender - OHIP. Ontario (Health Insurance Plan) v. K.S.
In Ontario (Health Insurance Plan) v. K.S. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a Divisional Court dismissed appeal, that from an allowed Health Services Appeal and Review Board appeal, and that from a refusal by the General Manager of OHIP to authorize a specific form of gender affirming surgery.
In this context, the court illustrates law and appeal procedures for OHIP surgery authorization:[2] Under the Health Insurance Act, R.S.O. 1990, c. H.6 (the “Act”), OHIP insures the cost of insured services incurred by Ontario residents. The Act describes insured services in general terms, leaving specificity to the regulations passed under the Act. The regulations provide that specificity in part through a comprehensive Schedule of Benefits. The interpretation of the Schedule of Benefits, in the context of the regulations and the Act, is central to the determination of the appeal.
[3] Although the regulations provide that services generally accepted in Ontario to be experimental are not insured services, this does not apply to services that are specifically listed as insured services in the Schedule of Benefits. The Schedule of Benefits designates certain “sex-reassignment surgical procedures” as “insured services when prior authorization has been obtained”, prescribes the mode of obtaining authorization, and states that prior authorization may be granted only for “specifically listed services”. One of the services listed is a vaginoplasty, a type of gender affirming surgery.[2]
[4] The respondent, K.S., sought prior authorization and confirmation from the appellant, the General Manager of OHIP, that the cost of a vaginoplasty recommended by her health care team would be covered by OHIP. There was no dispute that she fulfilled all the requirements for authorization, including having assessments from appropriately trained health professionals recommending the surgery. The General Manager denied coverage contending that, because the vaginoplasty would not be accompanied by a penectomy, the proposed procedure is not one specifically listed in the Schedule of Benefits.
[5] The Health Services Appeal and Review Board (the “Board”) allowed K.S.’s appeal from the denial of coverage. In the Board’s view, a vaginoplasty is an insured service because it is a specifically listed service in the Schedule of Benefits whether or not accompanied by a penectomy – another specifically listed procedure that sometimes, but not always, is performed along with a vaginoplasty. Moreover, in light of the determination that it is specifically listed, it did not matter whether the recommended technique was experimental.
[6] The General Manager appealed the Board’s decision to the Divisional Court, contending that the Board erred in its determinations and raising an additional ground not raised before the Board. The Divisional Court dismissed the appeal and refused to entertain the new ground of appeal.
[7] The General Manager now appeals, with leave, to this Court. For the reasons that follow, I would dismiss the appeal.
[8] The meaning and intent of the legislative and regulatory scheme are clear. The vaginoplasty recommended for K.S. is an insured service because vaginoplasty is specifically included in the Schedule of Benefits’ listing of specific sex-reassignment surgical procedures that are insured services, and because K.S. meets the stringent requirements for prior authorization of that surgery. I reject the General Manager’s arguments that the proposed surgery is not an insured service because it will not be accompanied by a penectomy – a different specifically listed procedure that is neither recommended by K.S.’s health professionals nor desired by K.S. The specific listing of vaginoplasty in the Schedule of Benefits as an insured service coupled with the fulfillment of the stringent requirements for prior authorization renders the General Manger’s contention that the procedure is experimental beside the point.
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B. BACKGROUND
(1) Relevant Legislative and Regulatory Provisions
[10] The General Manager is appointed under the Act to administer OHIP: Act, s. 4(2). OHIP’s purpose is “providing insurance against the costs of insured services”: Act, s. 10.
[11] Every person resident in Ontario is entitled to become an insured person of OHIP upon application: Act, s. 11(1). Every insured person is entitled to payment, to them or on their behalf, for insured services, subject to such conditions as are prescribed by regulations under the Act: s. 12(1).
[12] The Act defines insured services in general terms. It provides that insured services are prescribed services of hospitals and health facilities, prescribed medically necessary services of physicians, and prescribed health care services of prescribed practitioners. Since s. 1 of the Act defines “prescribed” to mean prescribed by the regulations under the Act, the Act leaves the specificity about what constitutes an insured service to the regulations.
[13] Sex-reassignment surgery falls within this general framework. Although subject to the regulations, the Act excludes services that seek to change the sexual orientation or gender identity of a person from the ambit of insured services, the Act specifically provides that sex-reassignment surgery, or any services related to it, do not come within that exclusion.
[14] Sections 11.2(1), (1.1) and (1.2) of the Act provide:(1) The following services are insured services for the purposes of the Act:
1. Prescribed services of hospitals and health facilities rendered under such conditions and limitations as may be prescribed.
2. Prescribed medically necessary services rendered by physicians under such conditions and limitations as may be prescribed.
3. Prescribed health care services rendered by prescribed practitioners under such conditions and limitations as may be prescribed.
(1.1) Despite subsection (1) and subject to the regulations, if any, any services that seek to change the sexual orientation or gender identity of a person are not insured services.
(1.2) The services mentioned in subsection (1.1) do not include:
(a) services that provide acceptance support or understanding of a person’s coping social support or identity exploration or development; and
(b) sex-reassignment services or any services related to sex-reassignment services. [15] Regulation 552 under the Act contains the regulations pertinent to the issues in this matter (for ease of reference, I refer to them as the “regulations”). The regulations make frequent reference, in describing what are and are not insured services, to a Schedule of Benefits. The Schedule of Benefits is defined in section 1(1) of the regulations as a document published by the Ministry of Health and Long-term Care entitled, “Schedule of Benefits — Physician Services under the Health Insurance Act (October 1, 2005)”.
[16] Section 24(1) of the regulations provides that certain services rendered by physicians are not insured services unless they are specifically listed as an insured service in the Schedule of Benefits. Among the services that are not insured unless specifically listed in the Schedule of Benefits are treatments that are generally accepted within Ontario to be experimental:The following services rendered by physicians or practitioners are not insured services and are not part of insured services unless, in the case of services rendered by physicians, they are specifically listed as an insured service or as part of an insured service in the schedule of benefits….
[...]
Treatment for a medical condition that is generally accepted within Ontario as experimental. [Emphasis added.] [17] The Schedule of Benefits specifically addresses, among other services, sex-reassignment surgery. Paragraph 17 of Appendix D of the Schedule of Benefits provides that sex-reassignment surgical procedures listed in that paragraph are insured services when prior authorization has been obtained. It details the requirements that must be met for prior authorization. These requirements include assessments from a physician and other health care professional(s) appropriately trained in the treatment of gender dysphoria under the standards of the World Professional Association for Transgendered Health (WPATH). The assessments must confirm that the insured person has a diagnosis of gender dysphoria, has undergone 12 continuous months of hormone therapy, has lived for 12 continuous months in a gender role congruent with their gender identity, and is recommended for the surgery for which approval is sought. Among the listed sex-reassignment surgical procedures for which approval may be granted are certain “specific services listed” including “External Genital Surgery (clitoral release, glansplasty, metoidioplasty, penile implant, phalloplasty, scrotoplasty, testicular implants, urethroplasty, vaginectomy, penectomy, vaginoplasty)” (emphasis added).
[18] Paragraph 17 of Appendix D of the Schedule of Benefits provides, in relevant part:17. Sex-Reassignment Surgery
Sex-reassignment surgical procedures listed in this section are insured services when prior authorization has been obtained from the MOH.
A request for prior authorization must be completed by a physician or nurse practitioner.
PART A – SUPPORTING DOCUMENTATION NECESSARY FOR A REQUEST FOR PRIOR AUTHORIZATION FOR SURGERY:
A prior authorization request must include supporting assessment(s) that recommend surgery; the assessment must be completed by a provider trained in the 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 (“appropriately trained provider”).
Supporting assessments recommending surgery may be provided by an appropriately trained:
1. Physician;
2. Nurse Practitioner;
3. Registered Nurse;
4. Psychologist; or
5. Registered social worker.
[...]
PART B – SPECIFIC REQUIREMENTS FOR APPROVAL:
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.] [19] The fact that a service is rendered outside of Ontario does not, in and of itself, take the service outside the scope of insured services that OHIP covers. For example, s. 29(1) of the regulations provides:(1) A service rendered by a physician outside Ontario is an insured service if, at the time the service is rendered,
[...]
(c) the service is referred to in the schedule of benefits and rendered in such circumstances or under such conditions as may be specified in the schedule of benefits. [20] But under s. 28.4(2)(a) of the regulations, services rendered at a hospital or health facility outside Canada may be subject to an additional condition of being generally accepted by the medical profession in Ontario as appropriate for a person in the circumstances of the insured person:(2) Services that are rendered outside Canada at a hospital or health facility are prescribed as insured services if,
(a) the service is generally accepted by the medical profession in Ontario as appropriate for a person in the same medical circumstances as the insured person ... The court considers statutory interpretation of the HIA regulation to this issue at para 49-65.
. 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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