Court to rule whether Ontario must cover penis-preserving vaginoplasty

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In a lengthy legal battle that could lead to more requests for individually customized and unorthodox gender-affirming surgeries, an Ontario resident is seeking publicly funded surgery to construct a vagina while preserving the penis.

The case, now before the courts, reflects a small but growing demand for niche surgeries for people who identify as non-binary, meaning neither exclusively female nor exclusively male.

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To critics, the procedures are risky experiments that illustrate “how far off the rails” gender-affirming medicine has gone and the excesses of “consumer-driven gender embodiment.”

“Our public health-care system is at the breaking point and really needs to focus on procedures that are medically necessary,” Pamela Buffone, founder of the parents’ group Canadian Gender Report, said in an email to the National Post.

“Is this type of surgery health care? The patient will not be physically healthier because of the operation, which is likely to result in complications and the need for corrective surgeries and further demands on the health system.”

LGBTQ rights groups say such surgeries can profoundly improve a person’s quality of life and reduce the distress and deep sense of unease from gender dysphoria. Health-care providers shouldn’t make assumptions about what care may be medically necessary, Egale Canada argued in a written submission to the court.

“Ultimately OHIP’s interpretation (of a vaginoplasty) is exclusionary and discriminates against nonbinary people on the basis of their gender identity,” Egale said. If there is any ambiguity in what should be publicly covered, it should be resolved in favour of the claimant, they said.

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As National Post columnist Jamie Sarkonak first reported in September, the case involves 33-year-old K.S., as she is identified in court documents, who was born male but who identifies as female dominant and uses a feminine name.

Ontario’s Health Insurance Plan (OHIP) originally denied K.S.’s request in 2022 for funding for a penile sparing vaginoplasty, a procedure that isn’t available in Canada. The surgery was to be performed at the Crane Center for Transgender Surgery in Austin, Texas.

Is this type of surgery health care?

According to legal documents, K.S. argued that “to ignore ‘the other third’ of her and how she presents would be invalidating; she is ‘both,’ not exclusively one or the other but literally a mix.”

OHIP argued that, while it may be of medical benefit to K.S., a vaginoplasty without penectomy (removal of the penis) is considered an experimental procedure and isn’t listed as an insured service under its schedule of benefits.

K.S. complained to Ontario’s Health Services Appeal and Review Board, which overturned OHIP’s decision, ruling that a vaginoplasty is among the 11 external genital surgeries listed for public coverage, and that it shouldn’t inherently include a penectomy.

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OHIP, in turn, appealed the review board’s decision to Ontario’s Superior Court of Justice. The case was heard in late February. “We do not yet have a decision — it could still be months,” K.S.’s lawyer, John McIntyre, said in an email.

K.S., who has experienced gender dysphoria since a teen, doesn’t completely align with either the male or female genders, the appeal board heard. Her doctor, an Ottawa endocrinologist, supported K.S.’s request for a specific type of bottom surgery.

“It is very important for (K.S.)  to have a vagina for her personal interpretation of her gender expression but she also wishes to maintain her penis,” the doctor wrote in a letter to OHIP supporting the request for prior funding approval. “(K.S.) 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.”

K.S. argued that forcing a non-binary person to undergo binary surgery — male to female, or female to male — would only exacerbate her gender dysphoria and would be akin to an act of conversion therapy, which has been banned in Canada since 2022.

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She also wishes to preserve her penis for sexual health reasons and out of concern the “urological rerouting” could create urinary incontinence problems, a recognized complication.

In its decision, the health services appeal tribunal referenced standards of care as set out by the influential World Professional Association for Transgender Health, or WPATH, which considers a penile sparing vaginoplasty a valid treatment option for non-binary people. The board said it adopted the trans care group’s logic that “gender diverse presentations may lead to individually customized surgical requests some may consider ‘non-standard.’”

The Ontario health ministry said it doesn’t comment on matters still before the courts.

K.S. declined to comment when contacted through her lawyer.

In a similar case reported by the Globe and Mail last June, OHIP initially denied coverage to a 41-year-old Ottawa public servant who identifies as transmasculine non-binary and who was seeking the surgical construction of a penis without the removal of the vagina and uterus.

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Nathaniel Le May argued that the additional procedures amounted to coerced sterilization.

The Crane Center in Texas offers several non-binary surgical options. “We offer everything you could think of,” Dr. Curtis Crane, a plastic surgeon and reconstructive urologist with fellowship training in transgender surgery, said during a Facebook live Q&A session for patients three years ago. “I can’t think of a time that a patient has come up with a surgical request that I haven’t been able to fulfill.”

Hundreds of messages recently leaked from WPATH’s internal forum included discussions about an anticipated “wave” of requests for non-binary affirming surgeries such as mastectomies without nipples, “nullification” (removal of all external genitalia, just smooth skin) and phallus-preserving vaginoplasty — “non-standard” procedures resulting in bodies that one therapist said “either don’t exist in nature or represent the first of their kind and therefore probably have few examples of best practices.”

Crane argues that vaginoplasty without penectomy surgery is not experimental. “I probably do 10 or so a year; it’s not uncommon,” he said in an interview with National Post. Bodies with mixed genitalia “absolutely do exist in nature,” he added. “There are disorders of differentiation of sexual genitalia that will leave both parts.”

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Techniques vary, but with the standard male-to-female vaginoplasty — penile inversion vaginoplasty — a vaginal canal is created and lined using penile tissue. “Next you would move on to surgically dissecting out the phallus, shortening the urethra and making a clitoris,” Crane said.

With penile preservation vaginoplasty, the vagina can be created using skin grafts harvested from the abdomen or colon.

Crane said some patients seeking vaginoplasty get sexual gratification from their phallus and don’t want to have to sit to urinate.

“There are all kinds of reasons. I don’t say one reason is not a good enough reason. It’s the patient’s body,” he said. During the Facebook session, Crane said, “It’s kind of assault to make a patient remove an organ that they’re enjoying.”

But Dr. Yonah Krakowsky, a staff urologist at Women’s College Hospital in Toronto and medical lead of the hospital’s transition-related surgeries program, told the review board that phallus-sparing vaginoplasties are considered experimental by most surgeons, published reports on the “functional or psychological outcomes” are lacking and that the surgical technique used in the process is poorly understood.

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Crane said he couldn’t recall, “off the top of my head,” the cost of a penile preserving vaginoplasty. When Sarkonak, the Post’s columnist, called the Texas clinic, she was told gender-affirming surgeries can range from US$10,000 to US$70,000, depending on what’s done.

“If someone just has an agenda to say, ‘no,’ (to public funding), you can never compete with that,” Crane said. “And unfortunately, that’s what it is the majority of the time: ‘I’m just gonna say no, because I don’t like this.’”

Others said it’s hard to justify the public coverage when Canadians across the country are facing lengthy wait lists for standard surgeries, and standard diagnostic tests.

“It’s hard to call this actual health care,” said Dr. Roy Eappen, a Montreal endocrinologist and senior fellow at Do No Harm, a medical and policy advocacy group. “There is no evidence that it improves anything physically, and the evidence that it helps mental health is not there either.”

“I can’t see the justification for paying. This is not something that really exists in nature and there is a very high complication rate for these kinds of surgeries,” Eappen said.

“WPATH wants to separate this all from any psychiatric diagnosis and call this ‘consumer driven.’ If that’s the case, then you can pay for it.”

While more people are identifying as non-binary, Crane said there are “plenty” of non-binary people who don’t want any surgery.

Eappen agreed. “I don’t know how many of them will want this kind of surgery. But I think this (case) would encourage them to ask. And I’m not sure we’re actually doing anyone a favour.”

National Post

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