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.
Part B of paragraph 17 of the Appendix D of the Schedule provides:
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)
Importantly, the Board noted[5] that the relevant section of the Schedule incorporates the World Professional Association for Transgendered Health Standards of Care (the “WPATH Standards of Care”).[6] In particular, the WPATH Standards of Care state that “prior authorization must be supported by assessments completed by medical providers “trained in the assessment, diagnosis, and treatment of gender dysphoria in accordance with [WPATH] Standards of Care in place at the time of the recommendation.”[7]
The ONSC found that the Board’s conclusion that “vaginoplasty without penectomy” was “specifically listed” was consistent with the grammatical and ordinary meaning of the relevant section. However, the ONSC did not stop there. Interestingly, the ONSC further found that OHIP’s interpretation was inconsistent with the Legislature’s intention as well as with the values of equality and security of the person under the Charter.[8]
The ONSC said that the Board was correct to conclude that, by referencing the WPATH Standards of Care in the Schedule, the Legislature must have intended that it be interpreted in a manner consistent with them.[9] Notably, the Board stressed that the WPATH Standards of Care expressly include vaginoplasty without penectomy as an option for non-binary individuals and “recognize that gender diverse presentations may lead to individually customized surgical requests.”[10] Similarly, the ONSC noted that the WPATH Standards of Care recommend an “individualized approach to treatment that affirms a nonbinary individual’s personal experience of gender.”[11]
Referencing the Supreme Court of Canada’s recognition in Hansman v. Neufeld[12] that transgender people occupy a unique position of disadvantage in relation to healthcare, the ONSC determined that OHIP’s interpretation would force transgender and non-binary people to choose between having a surgery that did not align with their gender identity and expression and not having gender affirming surgery at all — a choice, the Court noted, that would “reinforce their disadvantaged position and would not promote their dignity and autonomy.”[13] K.S.’ counsel has publicly stated that OHIP has sought leave to appeal the ONSC’s decision[14].
In the wake of the recent spate of anti-trans policies and laws, such as those introduced in Alberta[15] and Saskatchewan[16] respectively, this decision is significant for at least two reasons. First, through its appellate function, the Ontario Divisional Court has demonstrated that it will ensure that provincial regulatory bodies consider the rights of transgender and non-binary people in their interpretation and application of law and policy. Second, the ONSC’s emphasis on the SCC’s affirmation of transgender rights to autonomy and dignity in Hansman, serves as a powerful and timely beacon to the Ontario Legislature, to ensure that their policies and laws in relation to the transgender and gender non-binary community advance Charter rights and values.
About the Author
Tamara J. Sylvester (one/they/them) is a lawyer working in the Human Rights Services Office at Toronto Metropolitan University. In addition to conducting investigations into human rights and sexual violence complaints at the University, in the context of employment and higher education, one consults on human rights issues in the employment. One is also a member of the OBA’s SOGIC Executive. (tjsylvester@torontomu.ca)
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.