A judge has ruled that a non-binary Canadian’s $70,000 gender-affirming surgery that will see her keep her pen!s and get a v@gina constructed will be fully funded by taxpayers.
K.S., who was born a male at birth, uses female pronouns but does not identify as either fully male or fully female, according to documents from the Ontario Superior Court of Justice.
According to Mail Online, the 34-year-old, who is only identified by her initials in the legal filing, sued the Ontario Health Insurance Plan (OHIP) in 2022 after the company denied her request to pay for the cost of surgery to construct a ‘neo-vagina’ at a clinic in Texas.
She wanted to build a female sex organ in the gap between her scrotum and anus – while also keeping her fully-functioning male sex organ.
Now, the brunt of the $70,000 for surgery and flights to the US will fall on Canadian taxpayers after a landmark win in court.
Dr. Irena Druce, an endocrinologist at the Ottawa Hospital, submitted a ‘Request for Prior Approval for Funding of Sex-Reassignment Surgery’ – which cost $10,000 to $70,000 – for K.S. after completing multiple assessments on her along with Yael Sela, a mental health counselor.
Together, they determined K.S. has ‘persistent gender dysphoria.’ They said she was qualified to undergo the surgery because she had undergone hormone therapy for a year and ‘lived for 12 continuous months in a gender role congruent with her gender identity,’ the appeal said.
The procedure, also known as penile-sparing vaginoplasty, is only available in Texas. It is not allowed in Canada, but the money would pay for her to travel to the US to get the surgery, according to Reduxx.
The insurer argued the surgery cannot be publicly funded because the vaginoplasty would not be accompanied by a penectomy and is therefore not a procedure listed on its schedule of benefits.
The company, which is run by President and CEO Matthew Anderson, also argued that the procedure is considered experimental in Ontario and not eligible for coverage, the appeal, submitted on April 22, said.
K.S. then appealed the denial to the Health And Services Appeal and Review Board – who then overturned OHIP’s initial decision, arguing that it should be covered even if a penectomy is not performed.
OHIP appealed that, but lost again after the panel determined the surgery – which would leave her penis completely functional and create a ‘neo-vagina’ in the space between her penis and anus – would be fully insured.
The province’s appeal was heard on November 26, 2024, as three judges – Benjamin Zarnett, Steve Coroza, and Lise Favreau – rejected the company’s arguments to deny coverage because a penectomy was ‘neither recommended by K.S.’s health professionals nor desired by K.S,’ the court’s decision stated.
The appeal’s court also said: ‘The existence of different techniques to perform a vaginoplasty does not affect this conclusion. It was open to the drafters of the Schedule of Benefits to describe each specifically listed service in broad or narrow terms. Here the description chosen, ‘vaginoplasty’, is broad enough to encompass different techniques.’
They added that ‘a vaginoplasty without a penectomy is an insured service because it is still a vaginoplasty, a specifically listed service,’ the document read.
K.S.’s physician said in a letter that she ‘identifies as transfeminine but not completely on the “feminine” end of the spectrum and for this reason it’s important for her to have a vagina while maintaining her penis,’ documents said.
‘And her hope is to contribute to clinical research in this domain as her career continues,’ it continued.
In addition to winning the case to get the surgery, K.S. was also awarded $23,250 by the three judges, the filing said.
The province of Ontario has until June 23 to appeal the latest decision to the Supreme Court of Canada.
Her lawyer, John McIntyre, told National Post his client ‘is pleased’ with the decision.
‘K.S. is pleased with the Court of Appeal’s decision, which is now the third unanimous ruling confirming that her gender affirming surgery is covered under Ontario’s Health Insurance Act and its regulation,’ McIntyre said.
