'Non-binary' Ontario male approved for taxpayer funded neo-vagina surgery while keeping penis intact at Texas clinic

An Ontarian biological male who identifies as non-binary but female dominant has won a legal battle to obtain a penile-preserving vaginoplasty.

The patient, identified only as KS, sought coverage under the Ontario Health Insurance Plan (OHIP) for the procedure, and has launched a number of appeals since 2023 to get it done after OHIP initially denied coverage.

On April 10, a final appeal by OHIP was dismissed by the Divisional Court of the Ontario Superior Court of Justice, according to CP24.

KS was "ecstatic" over the decision.

"I have been waiting for this day for years," KS said in a statement through KS’s lawyer. "Though I know there is still time for OHIP to keep attempting to appeal this, I am relishing this day as it’s an extraordinarily huge milestone."

When KS first sought out the procedure, that would allow the biological male to retain a penis while also going into surgery to have a vaginal canal constricted, there were only a limited number of clinics in the world offering the procedure, none of which were in Canada. KS wanted to get the procedure done at a clinic in Texas. Additionally, there is no peer-reviewed research on the outcomes of the surgery.

OHIP first denied KS’s request in 2022, stating that the procedure was an experimental surgery. 

KS managed to have the ruling overturned by Ontario’s Health Services Appeal and Review Board, with the board arguing that vaginoplasties are covered and that KS' request shouldn't be denied just because it would keep the penis intact.

OHIP then appealed to Ontario’s Superior Court of Justice, which heard the case in February.

"It is very important for [KS]  to have a vagina for her personal interpretation of her gender expression but she also wishes to maintain her penis,” KS' doctor wrote to OHIP, arguing that the resident is "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 a penis." 

KS wished to keep the penis for sexual purposes, as well as to avoid urological complications associated with a traditional vaginoplasty. 

The Ontarian suggested that forcing a transition to fully male or female would be akin to "conversion therapy."

In the Wednesday decision, the panel of three judges found that the appeal board was correct, and ordered the insurer to pay KS $20,000 for legal costs.

"Such an interpretation would force transgender, non-binary people like KS to choose between having a surgery (penectomy) they do not want and which does not align with their gender expression to get state funding, on the one hand, and not having gender-affirming surgery at all, on the other. Such a choice would reinforce their disadvantaged position and would not promote their dignity and autonomy," Justice Breese Davies wrote in the decision, commenting on OHIP's "inconsistent" interpretation of the schedule of benefits.

The judges said that if OHIP’s funding for vaginoplasties was supposed to be limited, the list of insured services would have been stated differently.

The court added that the appeal board’s conclusion was in line with the World Professional Association for Transgender Health Standards of Care.

"This is a significant win for the transgender and non-binary communities. Gender-affirming care is medically necessary and ought to be funded by OHIP," said John McIntyre, KS’ legal representation in February's hearing.

"We hope that decides OHIP decides to accept the decision of the Court rather than seeking leave to appeal so that KS can move forward with her surgery she has been trying to get for years now."