Ontario ends legal battle to avoid covering surgery for non-binary resident who wants a vagina while keeping a penis
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The Ontario government says it won't ask the Supreme Court of Canada to review a lower court's ruling in April declaring that the novel phallus-preserving surgery qualifies as an insured service under the Ontario Health Insurance Plan (OHIP) — the latest win for the patient, identified only as K.S.
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The province had until June 23 to seek leave to appeal the April court ruling to the country's highest court. In an email to National Post this week, a spokesperson for Ontario's Ministry of the Attorney General said the government won't pursue the case.
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The lengthy legal battle between K.S., who was born male, dates back to 2022. K.S. does not identify as either exclusively female or male, but is female dominant and uses feminine or neutral pronounces (she/her/they/them).
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According to court records, K.S. 'has experienced significant gender dysphoria since her teenage years, as well as physical, mental and economic hardships to transition her gender expression to align with her gender identity.'
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In 2022, her Ottawa doctor requested pre-approval from OHIP for a vaginoplasty — the surgical creation of a vaginal cavity — but without a penectomy, which is when the penis is removed.
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In a letter to OHIP, K.S.' doctor said that her patient 'identifies as trans feminine 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.'
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A vaginoplasty without a penectomy isn't available in Canada and, therefore, the funding was to have the procedure done at the Crane Center for Transgender Surgery in Austin, Texas, which 'has an excellent reputation (for gender-affirming surgery) and especially with these more complicated procedures,' the doctor wrote to OHIP.
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K.S. appealed OHIP's denial of coverage to a tribunal. K.S. testified to concerns about the risk of urinary incontinence if she went through with a penectomy, 'the risk of losing the ability to experience an orgasm and the concern that removing her penis would invalidate her non-binary identity,' according to court documents.
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