Ontario seeking to appeal order to pay for phallus-sparing vaginoplasty

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A non-binary Ontario resident’s quest for publicly funded surgery to create a vaginal cavity while retaining the original genitalia remains in legal limbo for now.

The Ontario government is seeking to appeal a court ruling in April ordering the province to pay for an out-of-country penis-sparing vaginoplasty for the patient, who identifies as neither fully male nor fully female.

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In a notice of motion for leave (permission) to appeal filed with the Court of Appeal for Ontario, the province’s public-health insurer is arguing that the Divisional Court erred in finding that a phallus-preserving vaginoplasty was “specifically listed” as an insured service, and that it erred in failing to find that treatments “generally accepted within Ontario as experimental” are excluded from Ontario Health Insurance Plan (OHIP) coverage.

The novel surgery, which isn’t performed in Ontario, or anywhere else in Canada, involves constructing a “neovagina,” or vaginal cavity, without penectomy, or removal of the penis.

Most people seeking a vaginoplasty — some 200 Ontarians alone each year, according to one study — also have a penectomy, and the vaginal canal created using penile and scrotal tissue.

When the phallus is spared, the canal can be created using scrotal tissue and tissue grafted from other parts of the body.

The controversial legal tussles between OHIP and the patient, identified as K.S. in court records, began in 2022, when OHIP refused K.S.’s funding request for the penis-sparing surgery at a gender-reassignment clinic in Texas, where a lead surgeon once told a Facebook Q&A, “We offer everything you could think of.”

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K.S. uses a feminine name and feminine pronouns, but identifies as neither fully male nor fully female. In a letter of support to OHIP as part of the out-of-country funding request, K.S.’s doctor said it was important for K.S. to retain a penis while seeking construction of a vagina because K.S. is “not completely on the ‘feminine’ end of the spectrum.”

OHIP argued that while a vaginoplasty is listed among the dozen or so sex-reassignment procedures in its schedule of benefits, a vaginoplasty without penectomy is not and hence not eligible for public coverage.

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K.S. appealed OHIP’s denial to a tribunal, where OHIP led expert evidence from a Toronto surgeon whose expert report concluded that, “current expert opinion would widely agree that the penile preservation vaginoplasty is experimental,” which again would render it ineligible for funding.

But the review board overturned OHIP’s refusal, arguing that “vaginoplasty” should be read to include the penile-preserving technique. The board said vaginoplasty and penectomy are listed as separate services, but that a vaginoplasty need not inherently include removal of the penis.

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OHIP appealed to the Divisional Court but lost again. The three-member panel of judges unanimously held that vaginoplasty without penectomy is “specifically listed” as an insurable service and that the exclusion of experimental treatments doesn’t apply.

The Divisional Court also concluded that denying the procedure would infringe on K.S.’s Charter-protected rights; that insisting that a transgender or non-binary person assigned male at birth “remove their penis to receive state funding for a vaginoplasty would be inconsistent with the values of equality and security of the person.”

In its motion for leave to appeal, OHIP argued that Charter values “have no role to play in determining whether penile preserving vaginoplasty is ‘specifically listed’ in the OHIP schedule of benefits or whether it is excluded because it is experimental.”

A hearing date has not been set.

“Despite two unanimous decisions in K.S.’s favour, OHIP has applied for leave to appeal (which is not automatically granted) and we are now in the process of replying to its motion for leave,” K.S.’s lawyer, John McIntyre said in an email.

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“There is nothing further of substance to report at this time.”

LGBTQ rights groups say such surgeries can profoundly improve a person’s quality of life and reduce the distress from gender dysphoria.

“Vaginoplasty is a relatively common gender-affirming surgery with approximately 200 Ontarians seeking the surgery annually,” researchers recently reported. But capacity isn’t meeting demand, they said, leaving most trans and gender-diverse patients to seek surgery out of province, with much of the follow-up care left to primary-care providers “with little experience in gender-affirming care,” the authors said.

In order to get a better grasp on those post-op care needs, the researchers reviewed the charts of the first 80 patients (the youngest 19, the oldest 80) seen at a gender-affirming surgery, post-op care clinic at Women’s College Hospital, the first of its kind in Canada to to provide post-op care for people who have undergone “lower surgeries” at other surgical sites.

Most of the patients were seen for more than one visit. Pain was the most common symptom, followed by concerns related to dilation, sexual function concerns and surgical site bleeding. Wound healing issues, urinary dysfunction and vaginal stenosis — a major adverse outcome where the vaginal canal becomes narrower and shorter, requiring additional surgery — were among the most common adverse events.

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