Recently, the Divisional Court unanimously dismissed an appeal by the Ontario Health Insurance Plan (OHIP) of a decision by the Health Services Appeal and Review Board (Board) finding that a vaginoplasty without a penectomy is a listed service and, therefore, eligible for OHIP funding. The decision is significant for transgender and non-binary individuals in Ontario as it upholds their access rights to gender-affirming care that aligns with their non-binary experiences of gender. We summarize the Court’s decision in Ontario (Health Insurance Plan) v. KS below.
Facts
KS, who identifies as non-binary and female dominant, experienced significant gender dysphoria since adolescence, as her assigned sex at birth was male. In April 2022, KS’s physician submitted a request to OHIP for funding for KS to have gender-affirming surgery, specifically a vaginoplasty without a penectomy, in Texas.
OHIP denied KS’s request, concluding that a vaginoplasty without a penectomy is not a listed procedure in the Schedule of Benefits under the Health Insurance Act and was, therefore, not an insured service. OHIP, therefore, made a distinction between a vaginoplasty and a vaginoplasty without a penectomy, the former of which is listed as an insured service.
KS appealed the decision to the Board, who granted the appeal and found that a vaginoplasty without penectomy is a listed service and is eligible for OHIP funding. Specifically, the Board noted that the Schedule of Benefits lists vaginoplasty and penectomy as separate surgeries. Thus, 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.
As noted above, OHIP appealed the Board’s decision to the Divisional Court.
The Appeal
On appeal, OHIP advanced three arguments:
Of note, is that the third argument was a new issue that OHIP had not argued before the Board. In Divisional Court, OHIP argued, for the first time, that even if vaginoplasty without penectomy is a specifically listed service, the surgery KS wants would still be ineligible for funding because services rendered outside Canada are only insured if they are “generally accepted by the medical profession in Ontario as appropriate for a person in the same medical circumstances as the insured person. “
The Divisional Court’s Decision
Ultimately, the Divisional Court unanimously dismissed OHIP’s appeal.
The Divisional Court found that the Board was correct in finding that a vaginoplasty without penectomy is “specifically listed” in the Schedule of Benefits for three reasons.
First, the Court found that the Board’s interpretation was consistent with the grammatical and ordinary meaning of the relevant provisions. The Schedule of Benefits lists vaginoplasty as a separate, stand-alone procedure in the list of authorized sex-reassignment services, amongst other surgeries. The Court found that 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 the Schedule of Benefits.
Second, the Court found that the Board’s interpretation was consistent with the Legislature’s intention. In drafting the Schedule of Benefits, the Legislature referenced and incorporated the World Professional Association for Transgendered Health (WPATH) Standards of Care. 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. Therefore, the Court found that in explicitly referencing the WPATH Standards of Care, the Legislature must have intended the Schedule of Benefits to be interpreted in a manner that is consistent with those standards as they evolve.
Lastly, the Court found that if there was any ambiguity in the provision's language, the Board’s interpretation was consistent withChartervalues. The Court found that the interpretation of the Schedule of Benefits that requires transgender or non-binary people to undergo a penectomy with a vaginoplasty in order to have the surgery be state-funded would be inconsistent with the values of equality and security of the person. Such an interpretation would force individuals to choose between having a surgery (a penectomy) they do not want and which does not align with their gender expression to get state funding versus not having gender-affirming surgery at all.
Having found that the Board was correct to find that a vaginoplasty without penectomy is specifically listed, the Court declined to address OHIP’s second argument that the Board erred in failing to find that the surgery KS wanted was excluded under the regulations because it was considered experimental.
Lastly, the Court also declined to allow OHIP to raise the new argument that the Board erred in failing to consider whether KS met the other criteria for out-of-country funding. Generally, appellate courts do not entertain new issues on appeal and issues raised for the first time on appeal will only be permitted if it is in the interests of justice to do so and if the issue can be fairly addressed on the record from the Board. In this case, the interest of justice did not allow OHIP to raise these new arguments on appeal.
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