An Ontario man has won the right to government-funded gender-affirming surgery in the United States which will give him both a vagina and a penis. 

A three-member panel of judges of Ontario’s Divisional Court ruled unanimously that refusing to cover the procedure would infringe his constitutionally recognised Charter rights. 

At the centre of the case is K.S., a 33-year-old who was born as a male, but now identifies as a “feminine dominant” non-binary. He uses a female name. The most appropriate surgery to support his gender identity, he feels, is a “penile-preserving vaginoplasty”, a procedure which is offered at the Crane Center for Transgender Surgery in Austin, Texas. It is not available in Canada. 

According to a report in the National Post, K.S. argued that “forcing her to have her penis removed would invalidate her identity and be akin to an illegal act of conversion therapy.”

Per the National Post:

Just because vaginoplasty is listed as an insured service doesn’t mean any type of vaginoplastyqualifies, OHIP argued in court.

The court disagreed. Vaginoplasty and penectomy are listed as discrete, separate services onOntario’s list of surgeries eligible for funding, the court said. “The fact that most people who have avaginoplasty have it done in a way that also involves a penectomy” doesn’t change the provision. Ifthe province had intended for only one type of vaginoplasty to be insured (vaginoplasty with penisremoval) it should have drafted the list differently, the court said.

Interestingly, the court relied on WPATH standards, which have come under attack recently for lack of scientific rigour. The WPATH standards “expressly refer to vaginoplasty without penectomy as a surgical option for some non-binary people,” Justice Breese Davies wrote in the court ruling.

The court stated clearly that “penile-preserving vaginoplasty” is a human rights issue. “The Charter-protected right to security of the person safeguards individual dignity and autonomy,” it ruled. Requiring a natal male transgender or non-binary person “to remove their penis to receive state funding for a vaginoplasty would be inconsistent with the values of equality and security of the person.”