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By Andrew Chen
An Ontario resident has been granted public funding for specialized gender-transition surgery outside of Canada, despite the provincial health insurer’s stance against funding procedures abroad and concerns about the surgery’s “experimental” nature.
The individual, referred to as “K.S.” in a court document, sought coverage under the Ontario Health Insurance Plan (OHIP) for a penile-preserving vaginoplasty in Texas. The procedure, also referred to as vaginoplasty without a penectomy, entails creating a vaginal cavity while retaining the penis.
K.S. has pursued multiple appeals to the provincial Health Services Appeal and Review Board (HSARB), an independent quasi-judicial tribunal, following OHIP’s denial of funding. HSARB granted K.S.’s appeal, deeming the surgery eligible for funding, which led OHIP to appeal the decision to the Divisional Court of the Ontario Superior Court of Justice.
On April 10, the Divisional Court dismissed OHIP’s appeal.
OHIP raised three arguments in its appeal, including stating that the appeal board erred in claiming that vaginoplasty without a penectomy is “specifically listed” as an insured service under OHIP’s Schedule of Benefits.
The appeal board had argued that vaginoplasty without penectomy qualifies for OHIP funding, saying OHIP’s Schedule of Benefits lists vaginoplasty and penectomy as distinct surgical procedures. The board noted that the term “vaginoplasty” in the Schedule does not automatically include a penectomy and is therefore covered as an independent gender-transition surgery.
The Divisional Court sided with the appeal board’s view that vaginoplasty without penectomy is “specifically listed” in the Schedule, saying this was a matter of statutory interpretation.
‘Experimental’ Procedure
Another argument OHIP raised in denying coverage for K.S.’s surgery was that the requested procedure is considered “experimental,” thus rendering it ineligible for public funding.
OHIP referenced Dr. Yonah Krakowsky, the medical lead for gender surgery at Women’s College Hospital in Toronto, who is among the few surgeons performing vaginoplasties in Ontario.
As cited in the court document, Dr. Krakowsky outlined three methods for performing vaginoplasty. The most common technique is penile inversion vaginoplasty, where the penile tissue is used to create the vaginal cavity, labia, and clitoris after removing the penis. However, Dr. Krakowsky noted that alternative approaches may be necessary in certain cases, according to the court document.
He described two other techniques, peritoneal pull-through vaginoplasty and rectosigmoid vaginoplasty, which involve using non-penile tissue to construct the vagina and labia when penile inversion is not feasible.
“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,” the Divisional Court document stated.
Expanding on its decision that vaginoplasty without penectomy qualifies for funding under OHIP’s Schedule of Benefits, the appeal board determined that it was not necessary to further assess whether the treatment was experimental. The exclusion for experimental treatments does not apply to specifically listed services, the board argued.
Having sided with the appeal board on the first argument that a vaginoplasty without penectomy is specifically listed, the presiding justice at the Divisional Court said “I need not address OHIP’s second argument” that the appeal board erred in failing to find that the requested surgery is excluded due to its experimental nature.
Out-of-Country Coverage
OHIP noted in its third and final argument that the appeal board did not evaluate whether the proposed surgery met the criteria for out-of-country coverage.
The provincial insurer noted that even if the surgery that K.S. seeks is listed as a service, it would still be ineligible for funding, because services conducted outside Canada are only covered if they are considered “generally accepted by the medical profession in Ontario as appropriate for a person in the same medical circumstances as the insured person.”
OHIP presented this third argument for the first time before the Divisional Court, which it had not raised before the appeal board. Although the Divisional Court has the discretion to consider an issue raised for the first time on appeal, it chose not to do so. The court cited several reasons that render the argument as not in the interests of the justice, including that OHIP did not raise it before the board earlier.
The Epoch Times reached out to OHIP for comment regarding the Divisional Court ruling, but didn’t hear back by publication time.