On April 10, 2024,the Ontario Superior Court of Justice (the “ONSC”), in Ontario (Health Insurance Plan) v. K.S,[1] held that the Charter protected rights to equality and security of the person (including the attendant values of individual dignity and autonomy), and that those rights require that laws and regulations related to gender affirming health care for gender diverse people be interpreted in a manner that permits them to affirm their personal experiences of non-binary gender.
K. S, who identifies as non-binary-female-dominant and uses the pronouns she, her, they, and them, submitted a request to the Ontario Health Insurance Plan (“OHIP”) to receive funding for gender affirming surgery, namely, a vaginoplasty without penectomy (or penile preserving vaginoplasty). OHIP denied the request on the basis that a vaginoplasty without a penectomy is not “specifically listed” as an insured service under Part B of paragraph 17 of Appendix D to the Schedule of Benefits (the “Schedule”), which forms part of a regulation under the Health Insurance Act[2].
K.S. appealed OHIP’s decision to the Health Service Appeal and Review Board (the “Board”). The Board[3] granted the appeal and determined that vaginoplasty without penectomy is a “specifically listed” insured service in the Schedule. OHIP appealed the Board’s decision to the ONSC. The appeal turned on a question of statutory interpretation, in particular, whether “vaginoplasty without penectomy is ‘specifically listed’” under the relevant section of the Schedule.[4] OHIP argued that it was not.
Please log in to read the full article.