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My Nonbinary Surgery Appeal To Health Services Appeal And Review Board (HSB 'Tribunal')

So I promised I would publish all my written submissions once they were submitted and become part of the public record. Below it is in it's original state with a few ommissions, namely "XXXXXX" for names etc. I apologize greatly where I got anything wrong, but I did my best, so if I accidentally miscategorized anyone or anything, please understand I had no intention. I in no way meant to imply I know everyone's gender identity/expression. All of this is based solely on my own experiences and interpretation.


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Below are my submissions and responses for case file CURRENTLY BEFORE THE BOARD – Katrina XXXXXXXXXXXX.

I would like to preface my submissions with a few notes. First, for simplicity, I may refer later to XXXXXX the representative for the General Manager at OHIP, the General Manager at OHIP themselves, and anyone else from the other party (the respondents), collectively as "OHIP". Second, let's be clear, originally I thought OHIP did not understand the request, so how I explained in my own first submission/reponse should be considered on that basis, as I did so to the best of my ability at a time when I thought I was accommodating unintentional ignorance. However since seeing OHIPs Grounds of Response and later interactions during the conference, I cannot hide that I believe this is at a minimum another transgender gatekeeping injustice with possibly systemic discriminatory intent (Notes & References 21), so forgive my accurate but relatively passionate responses. Third, I researched and wrote this in multiple parts, so I apologize where there is minor duplication. Fourth, I actually agree for the most part with Dr X XXXX's own definition of vaginoplasty without penectomy (clarified later), but would add further that "penile-preserving vaginoplasty" and "vaginoplasty without penectomy" are synonymous and interchangeable. Fifth, I reserve the right for appropriate disability accommodations (see Notes and Referrences 22) As such, I have intentionally written as much as I could here to avoid any lost opportunties during the hearing, but I humbly ask that all parties be conscious of my disability, since I'm already at a serious disadvantage. Sixth, I feel OHIP has gone to great lengths to "win at all costs" already, regardless of merit, as one can only expect from good lawyers. Between what I feel to be their demonstration of a propensity to misinterpret wording regardless of it's intent (Notes & References 21), their intentionally or unintentionally gained advantages through delayed/incomplete/withheld information, (see Notes & Referrences 17), the unnecessary distractions to confuse the real issues at hand (such as bringing up the Flora case), the use of possibly illegal defenses (Notes & References 21), and their attempts to dismiss credible evidence without merit (later explained in the section about WPATH v8), all makes me feel vulnerable, despite my firm belief that the law is on my side. So I entreat the tribunal to look at the facts objectively. This case is exclusively about OHIP's decision to interpret the law in a transphobic way. I do NOT believe the law itself is transphobic, only OHIP's interpretation of it. Seventh, I reserve the right to fully cross-examine their witnesses during the hearing as conventional practice dictates. Eighth, I found there was some confusion during the conference about how to address me. My pronouns are female or neutral interchangeably. IE: I accept She/Her/Ma'am or equally They/Them/Mx (often pronounced "mix" as a neutral substitute for Mr/Mrs/Ma'am/Sir), but please do not use "it/its" or male pronouns/salutations, thank you.

To begin, to clarify how normal it is for nonbinary people to request surgery or have gender dysphoria: "Transgender and non-binary (TGNB) individuals often experience gender dysphoria. TGNB individuals with gender dysphoria may undergo genital gender-affirming surgery including vaginoplasty, phalloplasty, or metoidioplasty so that their genitourinary anatomy is congruent with their experienced gender. "

Notes & References 16.

To further support this I will break down the diagnostic criteria for gender dysphoria. The DSM-V is a highly consulted, highly reliable collaborative resource, providing a relative consensus of medical authorities that identifies the established modern diagnostic criteria of gender dysphoria. Previous editions of the DSM (IE: DSM-IV) have been accepted in other transgender cases, including Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32 (CanLII), which noted that "[292] The DSM-IV is widely accepted by psychiatrists across North America.". They used it for the diagnostic criteria for GID at the time. The modern name for GID is a diagnosis of Gender Dysphoria, which is applicable to this case.

Notes & References 1 & 29.

Not only does the DSM-V not require any particular form of genital dysphoria for a diagnosis of Gender Dysphoria, but also does not specify binary Gender Dysphoria must be present for the diagnosis. Conversely it specifically includes people who's gender identity cannot be defined as binary male or female. As per the Diagnostic and Statistical Manual, "there is one overarching diagnosis of gender dysphoria, with separate developmentally appropriate criteria sets for children and for adolescents and adults... Gender identity is a category of social identity and refers to an individual's identification as male, female, or, occasionally, some category other than male or female". (DSM-V, pg 451). Further, the criteria for "Gender Dysphoria in Adolescents and Adults" allows for "the other gender (or some other alternative gender different from one's assigned gender)". (DSM-V, 302.85 (F64.0), criteria 4, 5, or 6, Pg 452). This means nonbinary people are included in this one single overarching diagnosis. Of the criteria listed, a person only has to meet two of the 6 criteria, and not only is specific sex characteristic dysphoria not a mandatory requirement, but any combination of two criteria listed satisfies the criteria for a diagnosis of gender dysphoria, so long as it's been "at least 6 months' duration". I meet criteria for every single one, even if you could argue a partial eligibilty from criteria #2. (See Notes & References 11) Notably, you can have "3. a strong desire for the primary or secondary sex characteristics of the other gender", without requiring "2. a strong desire to be rid of one's primary and/or secondary sex characteristics", which I think is highly relevant in this case. This means that even if I wasn't nonbinary, genital "gender euphoria" (euphoria used here intentionally) from criteria #3 is sufficient to meet half of the diagnostic criteria for gender dysphoria of any transperson, as long as it lasts at least 6 months. Since there is only 1 adult criteria, and only 1 diagnosis of gender dysphoria regardless of experience or gender identity type, it is my position that as a nonbinary transperson, I am likewise meeting the same threshold as any other transgender individuals, despite a different experience of gender dysphoria from binary transpeople. During the case conference, Mr XXXX did concede that my "version" of dysphoria was not in dispute which still implied it was somehow different than others, but I would stress that there is only one single diagnosis, regardlesss of one's gender identity. Gender dysphoria is gender dysphoria. Thus it is my position that Mr XXXX's point about "version"s of dysphoria is inconsequential in the context of elligibility, as the diagnostic criteria for binary and nonbinary transpeople do not differ, and the diagnosis of gender dysphoria does not have different versions. Nonbinary people like myself meet this threshold. Since the OHIP legislation is based on medical diagnoses, this should be considered sufficient to satisfy equal elligibilty under the law for a nonbinary transperson, as any binary transperson. It's important to note, that the DSM-V was published in 2013, 2 years prior to when OHIP adopted it's most recent amendments to the relevant legislation (2015), so OHIP clearly intended to accept these definitions and intended to accommodate nonbinary people. If they wanted to exclude us somehow, they would have put conditions in during the amendment.

See Notes & References 1, 11, 37.

Since there is only one single medical diagnosis of "gender dysphoria" regardless of gender identity, and Mr XXXX has already conceded in our conference that I have satisfied the critera for approval, as listed in Appendix D, PART B – SPECIFIC REQUIREMENTS FOR APPROVAL, 1, b, i - "Has a diagnosis of persistent gender dysphoria;", they are simply distracting from the real issues by weaponizing my gender identity. Mr XXXX stated that he felt Dr XXX's letter satisfied the requirement in Appendix D, and yet OHIP insists on pointing at my gender as a reason they think this is not an insured service. They wrote in their original Grounds of Response, C, vi - "The Respondent submits that the Applicant’s request for funding of only the one specific genital altering surgery identified in the Applicant’s funding application is not a valid request for funding approval of sex-reassignment surgery insofar as that term – “sex-reassignment surgery” – is “prescribed” in the Schedule of Benefits and is, and has been, habitually interpreted, established, and understood in Appendix D. The declared and acknowledged goal of the Applicant’s request for one specific genital altering funded surgery is demonstrably not to achieve transition or sex re-assignment but rather to improve, 'personal Interpretation of her gender expression3', described as 'a mix', as 'nonbinary', and as necessary to validate “my identity”4 It is therefore the Respondent’s respectful submission that the surgical service requested by the Applicant is not an 'insured service'."

So I will respond in a few points:
1. I'm going to call it out here and state that I feel it is deeply transphobic of them to decide what is and isn't transition for someone else. I have literally changed my name, gone through thousands of dollars of extremely painful laser hair removal, changed my style, my clothes, my ID, my hormones, grew out my hair, pierced my ears, sought voice altering surgery (which I was priced out of because it turns out to cost an entire years income sadly), even tried to change the way I walk, talk, and act. The amount of physical and economic pain I have gone through for this can not be understated. So who are they to decide that? They don't even get to decide (and previous legal cases agree). There isn't legislation to do so. OHIP has no place judging me for my motivations, solely on the basis that I am nonbinary. Which is what they are trying to do. Nonbinary transition is transition. Let's be clear, the one and only reason that they are questioning my transition here is because I'm nonbinary (they even pointed to that reason themselves in that paragraph!), and that is highly inappropriate, not to mention possibly illegal.
2. Second of all, transition is not even a requirement in the criteria. They would try and have you believe otherwise, but no, it's not even a part of it. It's conflation, and puts an unprovable burden on all trans patients, not to mention alters the criteria set out in the schedule. So please rule only on the law. I don't actually have to prove that it's for transition, because the only thing that matters is that I meet the criteria laid out in Appendix D. I have to have a diagnosis of gender dysphoria and I do. That is the crux of the gender related criteria that they are allowed to comment on, and they accepted my diagnosis. The rest is related to hormones, applications, living in your gender role, and a recommendation for surgery, all of which I have done. They are trying to find artificial criteria to add on to invent false strategies, but that is misleading, and doesn't actually have any place in the law. The relevant criteria states "diagnosis of persistent gender dysphoria" and "living in a gender role that is congruent with their gender identity"(AD8 criteria, Notes & References 2), which may be different for some people. It does not state transition requirements of any kind. It doesn't even ask in the law if the genital surgery is "for" their transition. This is really important! Because a transperson may have many motiviations for a particular surgery and it's not even legal for OHIP to question why. In my case gender dysphoria diagnosis is sufficient, but I meet DSM-V criteria 3 anyway, and I have additional medical reasons on top of my gender identity for why this is appropriate. The problem with adding "transition" to the requirements, is because for a nonbinary person it's often at odds with perception of them living in a gender role congruent with their gender identity, and may create circumstances where they cannot transition to their true self. I stress this portion especially for those whose transition may not be "complete" or obvious as compared to binary transpeople and yet still are living in their desired gender role. How can that be? It must seem odd to cispeople or even contradictory. Well a person who's nonbinary could present in male form, female form, neither, or both, or any combination at different times, and that's sufficient...even if their presentation may seem like their origin birth assigned gender at times. This means, transition may not even be "obvious" for some people or they present as their gender without any need for specific aspects of transition! Humans are complex. Someone's transition may look entirely different from someone elses. Maybe they need more or less than another individual. Maybe it's only pronouns or style. Make sense? And yet all of these people would be elligible for the surgery in the current law as it stands! So at what point is transition relevant? The point is it isn't even calculable or quantifiable. Only the individual in question knows. I wanted to have this in writing, because I feel that the status quo of gatekeeping transpeople needs to change. I would urge the tribunal to rule explicitly that an individual need only meet the criteria identified in Appendix D such as gender dysphoria and living in their gender role, in order to be elligible for surgery, rather than arbitrary unquantifiable definitions of transition tacked on. I would further ask that it be identified that a person's motiviations are not elligible criteria for OHIP to add on, as leaving this open creates more possibilities for future discriminatory behaviour.
3. Nonbinary transition is equal in the eyes of the law as any other gender transition since the law doesn't care about this, and a nonbinary person's gender dysphoria diagnosis meets the same threshold as a binary transperson's gender dysphoria diagnosis which the law does care about. It's literally identical. The criteria is identical. The diagnosis is identical. The schedule requirements are identical. The threshold I am held to should be identical. I should not be held to a different standard solely because of my gender identity, when that's not even criteria listed in the law. If this would be an insured service for binary transpeople, then it likewise should be an insured service for nonbinary transpeople who meet identical criteria and legal elligibility. I would point out that gender identity descriptors are not a part of the Appendix D, or any law that I'm aware of, so intentionally attacking the way I describe my gender identity to cisgender people has no merit. I was merely trying to use terminology cisgender people can understand, but clearly it became what I feel to be intentional manipulation of my wording to create misdirection and to imply I am somehow different from the intended beneficiary and thus create the illusion that I'm somehow inelligible, when that is not the case. The point is, if it was even possible for a cis person to experience and meet the qualifications for gender dysphoria then OHIP would have to fund surgery options for them too (but obviously cis people do not feel this way). This entire section from their original Grounds of Response can not apply because only a gender dysphoria diagnosis matters in the law, and they have already conceded that I met that criteria during our conference. All transgender people, whether binary or nonbinary, who have a diagnosis of gender dysphoria have an equivalent diagnosis and thus should be treated equally. If they can accept that I have a gender dysphoria diagnosis, than they must accept that I meet the eligibility criteria, regardless of being nonbinary. There aren't additional variations. I meet the prescribed criteria and thresholds. Thus, this surgical service is in fact an insured service.
4. As for "sex reassignment" (SRS), a person can be reassigned from male to female (MtF), male to both (later referred to as MtX), or male to neither (also MtX), and likewise from female to male (FtM), female to both (FtX), or female to neither (FtX). Sex reassignment, also known as gender reassignment, is simply the act of changing a person from their birth assigned gender to their desired gender. If they want to call a "destination", admittedly if I indulged their nonsense, then technically speaking "intersex" is just as valid, and I will add that intersex even has the word "sex" in it they are so obsessed with, so if they are going to be so unnecessarily scrutinizing of minute irrelevant details in order to manipulate wording and warp intentions, then the whole argument about sex reassignment versus gender reassignment goes out the window.
5. Further, a "destination" for reassingment is not defined in the law, and the Ontario Government does not interpret the law and Appendix D in particular to mean exclusively "binary transition", which I will get to later. The Ontario Government is inclusive of nonbinary gender identities, and they make the laws, so their interpretation is intended to be inclusive that way, unlike what OHIP is saying.

See Notes & References 1, 2, 21, and definitions.

OHIP is trying to argue that what I experience isn't included in the schedule, but you either have a diagnosis of gender dysphoria or you do not. Nonbinary people are included in the diagnostic criteria, I meet that threshold, and OHIP has already agreed I have a diagnosis that they accept. It is my position that we can only look at criteria listed in the schedule and the associated diagnostic criteria when assessing elligibility for coverage, not lived experience based on specific gender identities. Anything else is discriminatory. Appendix D and other legislation does not mandate specific gender identities or gender expressions to be elligible for an insured service, and if it did, it would contravene both the Ontario Human Rights Code, and the Canadian Human Rights Act. Clearly this establishes that gender identity, gender expression, and variations of Gender Dysphoria experiences cannot play any role in the approval process, and that they do not. I only have to meet the same criteria as everyone else, as listed in the Appendix D, and that was established, confirmed, and conceded by Mr XXXX during our first phone meeting.

See Notes & References 3, 4.

In the case of A.T. and V.T. v. The General Manager of O.H.I.P, 2010 ONSC 2398 (CanLII), "in the event of a conflict between the Act and the Code the provisions of the Code would prevail. The Board also accepted that OHIP coverage fell within the meaning of "services" under s. 1 of the Code." OHIP is unable to add their own gender/sex based restrictions for services funded where it doesn't already exist in a relevant Act/Regulation. Further, "Equality rights provisions [29] It is clear that the benefits under the Act must be provided in a manner consistent with the equality guarantees under the Human Rights Code and the Charter. Further, it is accepted that in the event of a conflict between the Human Rights Code and the Act, the provisions of the Code are paramount. [page775]"

See Notes & References 3 & 30.

OHIP's attempt to invent a separate definition of vaginoplasty exclusively for transpeople, even when using identical donor material, process and surgical techniques, in order to exclude specific types of nonbinary persons from services, I believe demonstrates an attempt to violate the Code. For comparison, a genetic female cisperson who receives a vaginoplasty without the use of penile donor material (a vaginoplasty without penectomy), it is medically considered a vaginoplasty, but OHIP wants to adopt a separate definition solely for the trans population in order to exclude nonbinary persons. Further, OHIP is exclusively requiring male-assigned transpeople to receive a penectomy in order to have access to vaginoplasty funded treatments. That restriction is not put on any other patient population (EX: cispeople) receiving a vaginoplasty reagrdless of what condition the treatment is for! Further again, these restrictions are not imposed by any Act or Regulation...and yet OHIP insists on imposing additional non-legislated criteria relentlessly on Nonbinary transpeople that are not imposed on other patient populations whether or not they are being treated for the same condition. Another more vivid example of this, was more personal and demonstrates an indisputable violation. OHIP attempted to justify excluding me from services because of my gender identity and directly listed the fact that I identify as "nonbinary" as grounds for their decision, as outlined earlier.

Notes & References 21.

I am fully aware that the Health Services Appeal and Review Board (later HSARB) Rules of Practice and Procedure does not permit the board to "make a decision concerning the constitutional validity of a provision of an Act or a regulation", however:
1. The legislation as it currently stands may not be intentionally or unintentionally interpreted or misinterpreted in a way that contravenes the Ontario Human Rights Code or the Canadian Human Rights Act, and this is not outside of HSARB jurisdiction.
2. That I do not believe any legislation as it currently stands contravene's either of those if it is interpreted correctly. There has been no change to the legislation because it should be unnecessary.
3. That OHIP is intentionally misinterpreting the legislation in order to create the illusion that I am challenging the legislation constitutionally instead of disputing their interpretation of it, in an effort to misdirect, as if there is a dispute with an Act, where there is none.
4. I later demonstrate how Ontario is actually interpreting the legislation constitutionally in Reference 10. Only OHIP is misinterpreting the law. I believe the law is intentionally vague in order to be inclusive, and the Ontario Government website is evidence of this inclusivity.
5. In summary of these points: I don't feel the root cause of this appeal is a problem with the legislation, but a problem with OHIPs illegal interpretation of the legislation.

See Notes & References 10, 18.

Since vaginoplasty without penectomy is not available in Canada, this surgery is considered an insured service when travelling to the USA, in accordance with Reg. 552. I would add that I personally feel that the fact that I am even having to go through this appeal process, demonstrates the additonal unnecessary barriers still imposed on nonbinary people to access gender confirming insured services while binary transpeople have had access to gender confirmation surgery for years, so it is not surprising to me that nonbinary surgery options are limited in Canada as compared to other countries when it's still a challenge just to get a prior approval for surgery. Not that this additional detail changes anything, but I believe Ontario is even lagging behind Québec in access to gender confirming services even for the binary transpeople by adding additional processing delays that do not exist there - pre-approval vs post-approval funding which adds an additional 10+ month delay here. If we are so behind in this day and age, is anyone surprised I'm having this trouble with approval? Barriers to care are systemic.

See Notes & References 5, 6, 7.

Appendix D, AD8 refers to providers "trained in...WPATH Standards of Care" as an "appropriately trained povider". I argue therefor that testimony from my endocrinologist, Dr XXX, who meets that criteria, holds more weight in this case than a doctor who doesn't meet those requirements. IE: If they are not appropriately trained in the "diagnosis, and treatment of gender dysphoria", how can they comment on this case? Specifically the Respondent requests Dr. XXXXX XXXXXX's testimony, but is she "appropriately trained" in the treatment of gender dysphoria? If I have the correct XXXXX XXXXXX in my searches, then I would argue no. And if that's the case, does the tribunal consider her testimony to hold the same weight in this matter considering she may be underqualified and is not my medical practitioner? If she's not my doctor, not an appropriately trained specialist, and not able to determine my elligibility, what specialization can she be called for? And what about the Respondents' "expert witness"? I am aware that the criteria listed in AD8 is for who can apply for funding, but by extension this means that the Ontario Government considers a doctor with these credentials to be an authority. There are specific areas where this training is required to have the level of knowledge necessary to address complex gender identities and our respective needs. For example, judgements about my motivations previously, which might not have happened with someone who was properly trained to know what I'm asking for is quite normal.

See Notes & References 2, 12.

I want to get to the heart of the definition for my request before continuing further. OHIP's Expert Witness Dr X XXXX volunteered the definition as follows: "penile-preserving vaginoplasty (the creation of a vaginal canal without the removal of the penis)". I do not disagree, however I would also add that this definition is synonymous with "vaginoplasty without penectomy" as well, and my request is solely to seek a vaginoplasty without removal of penile material in the process, regardless of which surgical techniques need be utilized to qualify for OHIP coverage. Let me be very clear, my request is for a vaginoplasty using existing non-experimental techniques - I just seek to leave the penis intact.

Penectomy is typically performed alongside penile inversion, but it is not a core component of the definition of "vaginoplasty", and is not actually required during any other form of vaginoplasty (including rectosigmoid and/or peritoneal). Since Ontario/OHIP does not appear to provide a medical definition for what constitutes a vaginoplasty in the Appendix, I volunteer a relevant medical definition listed under the heading "Medical Procedures" from the BC Medical Journal: "Vaginoplasty is the surgical creation of a vaginal cavity and external vulva (consisting of an anatomic clitoral complex and labial complex)." And further, the definition of penectomy:...Penectomy involves removal of the penis. While more commonly performed as part of a penile inversion vaginoplasty, some individuals may choose penectomy as a stand-alone procedure". Note that it states penectomy is commonly performed during penile inversion specifically, but is not listed as a component of the very definition of a vaginoplasty... Notably, in OHIP's Appendix D it likewise lists Penectomy as a separate stand-alone procedure, so this is not just a jurisdiction thing. For the majority of transfeminine patients seeking a binary transition, they would likely simultaneously need and request a penectomy while receiving a vaginoplasty, but it is not and has not been a condition of what constitutes a vaginoplasty for the last 130 years, as there are many forms/techniques of vaginoplasty, but they are all still considered vaginoplastys. Importantly, older transcare articles may exclusively focus on penile inversion which has penectomy typically performed at the same time, but that doesn't change the medical definition of what a vaginoplasty ultimately is, since vaginoplasty can likewise be performed on cisfemale patients (who don't even have a penis to start with) as well!

Notes & References 36.

Let's not lose sight that this is an insurance elligibility question first and foremost. The question is, would a "vaginoplasty without penectomy" be considered a vaginoplasty for insurance purposes and are vaginoplasty surgeries insured by OHIP for transgender individuals who meet all the criteria? The answer is unequivocally YES! Note the stress on the word "vaginoplasty".

If Appendix D can refer to WPATH Standards of Care as a requirement of the criteria for eligibility, then it is only fair to say that WPATH guidelines are considered an appropriate credible resource in this case. If it's accepted by the Ontario government and is legislated into the schedule of benefits, then it speaks to the validity here and is a reputable resource to draw from. During the conference, Mr XXXX was quick to dismiss the WPATH because it's not the law, but it is mentioned in the law specifically in the sections affecting this case. Like any good lawyer, I feel he is seeking to dismiss any and all credible evidence no matter how authoritative, in order to avoid the tribunal ruling in my favour. The schedule outlines the elligibility criteria for OHIP and I'm not using WPATH to dispute that. I do not intend to use it to contravene established law in Ontario, only to supplement education and provide other evidence where necessary. A main point I seek to establish with the WPATH guidelines is that the surgical option I applied for is quite normal, especially for nonbinary people in my position, which reasonably supports that these are "valid medical procedures", and demonstrates what is medically appropriate varies from patient to patient.

See Notes & References 2, 14.

Furthermore, Mr XXXX was also trying to invalidate WPATH version 8 in particular (later v8) on the basis of the date it was released. It was released at almost the exact same time this case started. If you look at the Ontario Evidence Act, you'll notice: there does not exist a date/timestamp restriction for evidence. Credible evidence is credible evidence, regardless of the date at which it was produced. I do not believe there is a case or law that restricts evidence by date as was implied. We cannot refer to outdated and replaced versions of laws or rulings, so why would we refer to outdated evidence? Further, HSARB is empowered to accept evidence relevant to this case and to act on that evidence, regardless if it was admissable in court (as long as doing so wouldn't contravene provisions of an Act etc), so I urge them to do so, since the legislation literally refers to it in a manner that demonstrates it's authority.

Notes & References 19, 20.

A simple search of the canlii database would inform you, that not once has HSARB or any court of Ontario ever rejected WPATH as an authority, and it has been consistently accepted into evidence in each instance, for decades. WPATH is even recognized by the World Health Organization, and is internationally accepted within the medical community world wide: "the World Professional Association for Transgender Health (“WPATH”)’s internationally-accepted standards of care for Gender Dysphoria”"

Notes & References 34.

Assuming the WPATH is accepted by the Tribunal, I may cite some sections. It shows "Additional surgical requests for nonbinary people AMAB include penile-preserving vaginoplasty, vaginoplasty with preservation of the testicle(s), and procedures resulting in an absence of external primary sexual characteristics (i.e., penectomy, scrotectomy, orchiectomy, etc.)." As you can see, what I requested is common enough to be listed in the WPATH, despite dismal access to care in Canada. Part of what Mr XXXX was arguing during the conference was that he did not feel penile-preserving vaginoplasty is a "valid medical procedure". Clearly this shows otherwise. Not only is it valid, but it's normal for nonbinary people in my position. (and I would add, the fact that their own witness Dr X XXXX acknowleges and defines this procedure, is further evidence that it is a valid medical procedure.)

Also notable that orchidectomy is listed as a viable surgical option for some AMAB nonbinary people as well. The reason I bring that up is because it's additional evidence that further normalizes the fact that the surgical options listed in the Appendix are designed to contemplate nonbinary people, not just binary transpeople.

See Notes & References 14, pg S87.

Clearly further evidence that penile-preserving vaginoplasty is a valid medical procedure is the fact that Dr XX, Dr XXXX and Dr XXXXX of X, and other world renowned surgeons do perform penile-preserving vaginoplasty. During a separate consultation with Dr XXXXXXXX in X in --/--/--, he indicated that if the surgery funding atmosphere in Canada was more predictable for vaginoplasty without penectomy, he'd start offering the same service too and that he intends to! Surgeons do not put their license on the line if they are not doing "valid medical procedures". They could and would be sued. Clearly what Mr XXXX was talking about was pure nonsense.

See Notes & References 15 (email)

OHIP is trying to fabricate an excuse for denial where none actually exists, and now they want to add even more criteria for funding by forcing me to quantify and justify what is and isn't considered a vaginoplasty.... while in the schedule, vaginoplasty is clearly distinct from penectomy (which I get to later).

As for Flora v Ontario, OHIP's own response cited the following:
13. i. "While the Act and Regulations set out which medical services are to be publicly funded, it "remains the task of health care professionals to determine the nature of the medical services to be provided to a particular patient” (para 86)." I am literally asking that my doctor, my Psychotherapist/Social Worker, and my Nurse Practitioner be the ones to decide what medical services be provided to me, all in accordance with the law. As I explained in our initial conference meeting, that Flora case was about someone who literally did not medically qualify based on age; meanwhile in my case I am someone who fully qualifies for the service I'm requesting and it is supported by multiple relevant medical professionals whom OHIP have already acknowledged as acceptable. I will add an additional letter of support from my Nurse Practitioner at the end as well.

See Notes & References 9.

The second part relating to the Flora v Ontario case, OHIP's response cited the following "Funding provided under the Act "does not extend to all medical treatments or procedures," (para 85)", but what they neglected to write was the rest of the paragraph. Taken as a whole, it looks like this: "The funding provided by the Act does not extend to all medical treatments or procedures. Only those medical services that the legislature has determined should be included as "insured services" qualify under the Act for reimbursement by OHIP." When the paragraph is taken as a whole you can see it is stating no more or less than a service must be listed to be insured, and I would agree unless doing so would contravene another relevant law, such as the Canadian Human Rights Act, or the Ontario Human Rights Code. In summary, if OHIP wants to keep paragraph 85 as a citation, then it must be taken in context with the rest of the paragraph included. Since vaginoplasty is already included as an insured service, personally I find the core purpose of the Flora case irrelevant here. The whole purpose of Flora v Ontario was to determine if Ontario has a responsibility to provide services that one needs regardless of existing coverage and medical elligibility, but citing it neglects entirely the fact that it's about uninsurable clients who don't meet medical criteria and whether compassionate grounds exist for funding. I am not asking for compassionate grounds, I'm asking to be treated with equality, so again, that case has no merit here beyond showing that it's up to medical practitioners to determine what is appropriate. Everything else about that case is irrelevant.

See Notes & References 9.

In the original decline letter from OHIP, they stated the following: "Vaginoplasty (including penectomy, orchidectomy, clitoroplasty, and labiaplasty) is an insured OHIP service.... Vaginoplasty (without penectomy) is not listed as a procedure in Appendix D of the Schedule". However, when you read Appendix D, it lists procedures in the following manner: "APPENDIX D, PART B – SPECIFIC REQUIREMENTS FOR APPROVAL, 1.External Genital Surgery (clitoral release, glansplasty, metoidioplasty, penile implant, phalloplasty, scrotoplasty, testicular implants, urethroplasty, vaginectomy, penectomy, vaginoplasty)". You'll notice that all of the procedures and external genital surgery options are listed separately. There is nothing in the schedule that says "Vaginoplasty (including penectomy, orchidectomy, clitoroplasty, and labiaplasty)". So where did they get this information? Well, I believe it came from the form Dr XXX filled out. The form has a box to check for Vaginoplasty, which includes 4 other services, where she crossed out penectomy and wrote beside it "* WITHOUT PENECTOMY", however from what I can tell, this form is not legislated, and frankly an outdated form that is not made to legal standards doesn't invalidate my qualifications for approval. Secondly, and most importantly, they list vaginoplasty and penectomy separately in Appendix D, AD8, and later they separately as well list orchidectomy on AD9. During the conference call, OHIP insisted that we must look at what is in the law, and wanted to dismiss other sources of data such as WPATH, despite the law referencing them. They cannot have it both ways. And here I get to the true heart of the matter – during the conference, OHIP kept stressing that genital surgery options must be for "reassignment" while insisting the definition is from male to female exclusively or vice versa. However you'll notice very clearly the schedule states penectomy as a procedure unto itself. If it is considered valid and insurable that someone can choose to get a penectomy without a "binary" vaginoplasty, why is it not then possible to choose to get a stand alone vaginoplasty without the penectomy? Additionally, you'll notice that labiaplasty and clitoroplasty are likewise not listed in Appendix D, so you can safely infer that those two are not indepedantly insured services. However, this does mean that penectomy is an independantly insured service. Why would one bring this point up? Well, because the people who get standalone penectomy as well as penectomy with orchidectomy, also known as "nullo" (nullification) surgeries exist. These surgeries are insured, whether the forms to request surgery have them listed or not. Many of the people receiving nullo surgeries are agender/nonbinary people (see definitions) but not exclusively. So I want to make some points clear here:

Still not convinced? Well how about Orchidectomy. It's entirely listed separately. It is not even considered under the "External Genital Surgery" heading, and falls instead under a separate heading labelled "Hysterectomy, Salpingo-oophorectomy, Orchidectomy". You'll notice this is an insured service too, despite not resulting in a "binary" change in gender/sex, and yet it is considered a viable treatment for gender dysphoria.

See Notes & References 2.

OHIP kept stressing repeatedly during their response and during the conference call, the words "sex-reassignemnt". This is deprecated terminology, however, I believe that it was intentionally left in the legislation, not because they do not want to insure nonbinary surgical options, but because it was simply an oversight they have not updated. OHIP would have you believe that there is "some significance" to the words sex reassignemnt, and that somehow those words invalidate my request for coverage because my transition is nonbinary. However, reassignment, whether it's Gender Reassignment or Sex Reassignment, whatever you want to call it, does not have to have a binary destination. Again, this is supported by Appendix D, AD8-9. If orchidectomy can be considered a surgery option under "Prior authorization for sex-reassignment surgery", and it is clearly not a surgery with a "binary destination" which would go from male to female, then I would argue the words "sex reassignment" are simply misnomers. There is not significance to calling sex or gender related surgery options "sex reassignemnt" in the law and there is not a defined binary destination in the law. If standalone orchidectomy, which has separate criteria from vaginoplasty, is considered to be "sex reassignment" in the eyes of the law, then they are using the words sex reassignment by definition in Appendix D to be synonymous with gender confirmation or gender afirmation, not exclusively binary sex change options. If the law was designed to exlcusively contemplate binary transition, then there would be only two choices – phalloplasty or vaginoplasty, but that is not the case. There are more surgical options because there are more transition options that are acknowledged in the legislation!

Furthermore, the Ontario government already confirms it's own definition of "sex reassignment surgery" is synonmous with "gender confirmation surgery", so the Government of Ontario's intent and interpretation of Appendix D is to be inclusive there. They call it "Affirming gender identity", and state that "Gender confirming surgery (also known as sex reassignment or gender affirming surgery) does more than change a person’s body. It affirms how they think and feel about their own gender and what it means to who they are. Ontario is funding surgery as an option for people who experience discomfort or distress with their sex or gender at birth." This is an excerpt from actual public pages that cite the legislation and qualifications for surgery. It is clear the government intended the interpretation of the legislation to be gender not just sex. So this surgery application may say "sex reassignment" but sex reassignment is synonymous with "gender confirmation surgery" and "gendering affirming surgery". Even the government's URL is named "gender-confirming-surgery". It is my supported position that "sex reassignment" is and has been interpreted and established by the Government of Ontario to be synonmous with "gender reassignment" and is enacted for the intents and purposes of gender affirmation.

See Notes and References 10.

When they made their most recent amendments to the law, it is and was the intent of the Ontario Government that gender reassignment service coverage and regulations be inclusive and accessible. "Every Ontarian has the right to be who they are. Our health care system should reflect this vision, which is why we are improving access to sex-reassignment surgery. It is one way by which our government is demonstrating its commitment to ensuring high quality and equitable access to care for all Ontarians." -- Dr. Eric Hoskins, Minister of Health and Long-Term Care, November 06, 2015.

See Notes & References 31.

The Respondents' Expert Witness Dr X XXXX lists Penile Inversion, Peritoneal Pull Through Vaginoplasty, and Rectosigmoid Vaginoplasty as non-experimental forms of vaginoplasty, but declares vaginoplasty without penectomy as experimental alongside it, as if they were on the same level. These declarations call into question the quality of Dr X XXXX as a witness, because vaginoplasty without penectomy is not in and of itself a surgical technique any more than vaginoplasty with penectomy is. Neither vaginoplasty with or without a penectomy describes the particular surgical technique intended to be deployed, so vaginoplasty with or without vaginoplasty cannot in and of themselves even be experimental or nonexperimental. For example, a vaginoplasty with penectomy may describe penile inversion or peritoneal pull through, but doesn't say which. No surgical technique was actually disclosed during the original application, only that I am applying for a standard vaginoplasty without a penectomy, since that procedure is not congruent with my gender identity. Either Dr X XXXX doesn't know what constitutes a vaginoplasty without penectomy, or the request is being judged solely on the basis that it results in a nonbinary result, the latter of which is discriminatory.

The Respondents' Witness demonstrates a very common surgical bias in regards to Penile Invesion, since it's based on the number of surgeon's trained in the penile inversion technique rather than on patient outcomes! When they stated "Penile inversion vaginoplasty is considered to be the standard of care in Ontario for patients requiring vaginoplasty surgery. Globally, penile-inversion vaginoplasty is the most frequent surgical technique". This bias is based on US data which focuses on cost efficiency, and neglects the advantages of other surgical techniques which are more dominant in publicly funded health jurisdictions like ours. "The vast majority of surgeons agreed on a variety of methodologic and treatment issues, including patient selection and surgical techniques. In particular, plastic surgeons were biased toward penile inversion augmented by scrotal grafts, sometimes adding flank grafts, tissue expanders, or donor matrix tissue,27–29 and decisively rejecting intestinal vaginoplasty that would require no such additional measures and eliminate the need for lifelong dilatation. However, although diversion colitis, excess mucus, or malodor were cited by the American surgeons as negative sequelae, a meta-review of 21 studies using data on cisgender women with vaginal agenesis and transgender women reported no occurrence of diversion colitis; in addition, odor occurrence in the ileal neovagina was not observed and transient excessive discharge decreased to acceptable levels within 6 months in sigmoid-derived and ileal vaginoplasty.30 Bowel vaginoplasty in transgender women is performed to a greater extent in Europe, where genitourinary surgery maintains a presence in public health-funded transgender care and acceptable patient satisfaction rates have been documented on a relatively consistent basis, most recently in a sample of postadolescent transgender women.31,32" They also surmised that "colon vaginoplasty in the United States could become a more commonly available alternative to penile inversion, particularly as more urologic surgeons obtain training in the procedure".

See Notes & References 32.

Consider that OHIP's post-pay funding scheme actually creates a "catch 22" for gender affirming surgery that literally denies access to some critical evidence and witness testimony! By denying me funding prior approval, they are likewise preventing initiation of any serious discussions with ALL surgeons including a proper consultation which could provide testimony or letters of evidence or support in regards to "techniques employed" because OHIP simultaneously requires prior approval up front before those interactions could exist. In simplest terms, the relevant regulations say that if I want the Surgeon evidence/testimony to provide to the tribunal just to win the funding in this case, I have to completely self-pay, which simultaneously obsolves OHIP from reimbursement/funding in the first place. It's a "house always wins" situation, so please consider this case in light of that fact. Since it's clearly far too high of a barrier to care for someone with low income to pay 100% out of pocket for surgery just to obtain evidence from surgeons (where all interactions/consultations/etc would be covered if this OHIP application was approved!), I have instead transcribed a portion of a facebook/Youtube Q&A recording of my surgeon from two years ago. The full recording can be listened to at the link attached. It explains and further normalize the actual surgery I am receiving, and clarifies techniques used. In it, Dr X explains some of his methods and experience with various nonbinary surgeries, and I have limited my citations to what is exclusively applicable to me and my case: ---------- (cut off intentionally)

The take aways from this is:

See Notes & References 13.

Since OHIP has added the defence that vaginoplasty without penectomy is somehow experimental, it's important to establish a definition of what is considered "experimental" in the legal sense. In the case of N.M. v Ontario (Health Insurance Plan), 2020 CanLII 97431 (ON HSARB) it is well established what that means: "Subsequent panels have elaborated on that definition, finding that “experimental” means “a treatment is not yet proven to produce the hoped-for results, or that the hoped-for results are provisional or tentative” and that a treatment “may be excluded from coverage on the basis that it is experimental where it is not yet known whether the treatment can induce clinical benefit in the context in which it is being used.”[5] The panel accepts and adopts these definitions of experimental treatment. " In the context of this case, this means a surgery option is "experimental" only when it is not currently believed to provide clinical benefit. I believe it is an established fact that vaginoplasty in trans and even cis populations have a proven track record. Also, gender affinirming surgery, including vaginoplasty specifically, is well demonstrated to have a profound positive impact on patients including nonbinary populations...which is further supported by the US study attached that included nonbinary patients. Further, I assert that in refernce to the "context in which it is being used" that HSARB refers to in that case, is not referring to a particular gender, motivation, or desired outcome, but a surgical technique applied within the context of the treatment itself. I'd argue that context here refers to the treament for a specific condition, which in my case is "vaginoplasty without penectomy for gender dysphoria".

See Notes & References 23 & 25.

Furthermore, the onus is on OHIP to demonstrate what I've applied for is experimental. The onus is not on the appellant to prove otherwise, even though I will follow with relevant evidence! As you can see from the case of N.M. v Ontario: "The Appeal Board notes, however, that the onus is on the Respondent to establish on a balance of probabilities that the proposed fat stem cell autograft is generally accepted as experimental in Ontario".

See Notes & References 25.

Vaginoplasty without the use of penile material has documented techniques for use as far back as 1892!!! This is not a typo. The method used at the time was the rectum in a non-trans patient, which later evolved into the ileum in 1904, and is now using the rectosigmoid colon in modern usage. These techniques were not in use in the transgender population until 1974, but it demonstates the viability and validity of the procedure 82 years before they even considered using penile material. Penile material and penectomy was not and is not required for rectosigmoid vaginoplasty, and these techniques are historically well established. This further asserts that no experimental techniques need to be employed in order to provide vaginoplasty without penectomy! Rectosigmoid vaginoplasty is well documented and studied to be used successfully in transgender populations, and it is already accepted by OHIP's Expert Witness, not to mention they've stated it is not an experimental technique!

See Notes & References 24.

Additional reference showing vaginoplasty including rectosigmoid vaginoplasty without penectomy can be seen here. "'Vaginoplasty using the rectosigmoid was performed in 36 patients (28 male-to-female transsexual patients, five patients with congenital vaginal atresia, and three with cervical cancer). The follow-up period ranged from 1 to 10 years." .... "During intercourse, 88.9 percent of the patients experienced orgasm. The cosmetic and functional results of rectosigmoid vaginoplasty were excellent. Thus, the advantages of rectosigmoid vaginoplasty are (1) rare contraction of the reconstructed vagina, (2) vaginal width and depth maintained without long-term vaginal stent, (3) spontaneous mucus production facilitating sexual intercourse, (4) avoidance of the malodor frequently accompanying skin graft, and (5) texture and appearance similar to that of the natural vagina." This scholarly article shows the identical technique deployed in both male to female trans people alongside ciswomen collectively. As you can see, not only are persons assigned male at birth able to use this technique, but again it's the same established proven technique also able to be employed without the need for penile skin as ciswomen would not have this skin available. It's already been done for years and penile skin in not actually needed. Further, this provides evidence for long term results for a vaginoplasty without penectomy technique.

See Notes & References 26.

Again, the legal definition of "experimental" in question here is whether "the treatment can induce clinical benefit in the context in which it is being used." Since the context here could reasonably be interpreted to mean transgender persons seeking gender affirming surgery and specifically vaginoplasty without penectomy to treat gender dysphoria, I'll further elaborate. In the aforementioned study "The authors concluded that rectosigmoid vaginoplasty is the best choice for transsexual patients who have previously undergone penectomy and orchiectomy, patients with unfavorable previous vaginoplasty, those with short vaginal length after cervical cancer surgery, and patients with congenital vaginal atresia. " The significance here is to show that not only has vaginoplasty without penectomy been performed successfully in cisfemale populations, but in transgender populations assigned male at birth as well. A sigmoidcolon vaginoplasty without penile material would in the most literal of terms be a form of vaginoplasty without penectomy, and Dr X XXXX already stated this EXACT form of vaginoplasty is a non-experimental form of vaginoplasty in Ontario. Clearly studies regarding forms of vaginoplasty do not discriminate between rectosigmoid vaginoplasty with or without a penectomy. And as previously mentioned the study stated "The cosmetic and functional results of rectosigmoid vaginoplasty were excellent" regardless, so the clinical benfit is established in the transgender patient population seeking gender affirming surgey. A vaginoplasty is a vaginoplasty to the broader medical community regardless if penectomy or penile material is used. (I capitalise here for stress, not to shout) IT IS POSITIVELY IRREFUTABLE TO SEE THAT WHAT I HAVE REQUESTED DOES NOT MEET HSARB's OWN ESTABLISHED LEGAL DEFINITION OF "EXPERIMENTAL".

See Notes & References 25 & 26.

Sigmoidcolon vaginoplasty isn't the only vaginoplasty technique that can be performed without penectomy or penile skin. "AIM: A new simple technique using laparoscopic peritoneal pull-through in creation of neo vagina has been described. MATERIAL AND METHODS: Total of thirty six patients with congenital absence of vagina (MRKH syndrome) were treated with laparoscopic peritoneal pull through technique of Dr. Mhatre between 2003 till 2012. The author has described 3 different techniques of peritoneal vaginoplasty. RESULTS: This technique has given excellent results over a period of one to seven years of follow-up. The peritoneal lining changes to stratified squamous epithelium resembling normal vagina and having acidic Ph.". Once again, this is a technique that Dr X XXXX, OHIP's Expert Witnes has already stated is not an experimental technique. They do not need penile material or a penectomy to perform identical established techniques that are not considered experimental. It's the exact same process.

See Notes & References 27 & 28.

In regards to Reg. 552, Section 24, under "EXCLUSIONS", OHIP has provided the excerpt from the regulation that reads: "24. (1) The following services rendered by physicians or practitioners are not insured services and are not part of insured services unless, in the case of services rendered by physicians, they are specifically listed as an insured service or as part of an insured service in the schedule of benefits or, in the case of services rendered by optometrists, they are specifically listed as an insured service or as part of an insured service in the schedule of optometry benefits"..."17. Treatment for a medical condition that is generally accepted within Ontario as experimental." I have highlighted the relevant sections.

  1. I argue, as outlined previously, vaginoplasty as a treament method for gender dysphoria with or without penectomy is not and can not be experimental, only the technique employed can be (IE: penile inversion, sigmocolon, peritoneal, etc). I am emphasizing the word "treatment" here very specifically, because it is likewise the wording in the Regulation 552. Note that it says unless they are specifically listed as an insured service. This regulation only states that an experimental service must be listed to be covered. Vaginoplasty is the "treatment", with or without penectomy.
  2. Vaginoplasty is specifically listed as an insured service in the schedule. So it is covered under Reg 552, regardless of whether it is experimental or not. Regulation 552 only disqualifies an individual from coverage if the service is not listed. Period.
  3. Medically speaking, if a vaginoplasty performed on ciswomen who never had penile material in the first place is still considered the very definition of a vaginoplasty in medical literature (literally a vaginoplasty without penectomy), then I'd argue what I requested cannot be considered "experimental" solely because I was assigned male at birth where identical techniques are employed. A vaginoplasty is a vaginoplasty.
  4. From an OHIP insurance/schedule perspective, in Appendix D, if it is widely accepted that "Vaginoplasty for the purposes of OHIP insurance" can include peritoneal, rectosigmoid, and penile inversion, then it is logical to deduce that for insurance purposes, Vaginoplasty in the schedule does not discriminate between techniques anyway, and means all vaginoplasties are vaginoplasties for insurance purposes, not only medically speaking. This means as long as "vaginoplasty" is the treatment, then even experimental techniques are included, and thus insurable.
  5. Treatments cannot be considered experimental solely based on a person's gender identity, gender expression, or desired outcome. It must be based on medical evidence instead.
  6. I have previously identified the Tribunal's established definition of experimental, and what I have requested does not meet the threshold for it's definition of experimental, since vaginoplasty without penectomy predates vaginoplasty with penectomy by half a century and methods of doing so have significant proven documentation, including attestation by the Respondents' own witness that relevant treatment methods (such as sigmoidcolon vaginoplasty) are not considered experimental. Since vaginoplasty has proven "to provide clinical benefit" to both ciswomen and transpeople already with and without penectomy, what I've requested doesn't meet the threshold under the tribunal's established definition of experimental.

OHIP's Expert Witness states "There is concensus in Ontario that most patients requiring vaginoplasty would be appropriate for the penile inversion vaginoplasty technique. There are unique situations which may require alternative approaches." Key word most, but not all! I am one such case! Since it "remains the task of health care professionals to determine the nature of the medical services to be provided to a particular patient" (Flora v Ontario, previously mentioned), it is NOT up to OHIP to choose what particular treatment is appropriate for me! My doctors have already deemed that a vaginoplasty without penectomy is appropriate for me. Further, gender affirming surgery requires a diagnosis of "gender dysphoria", and Ontario's stated purpose for gender affirming surgery is to provide "an option for people who experience discomfort or distress with their sex or gender at birth." and from this it can be reasonably interpreted that the very purpose of sex/gender reassignment is to alieviate gender dysphoria not create it. Therefore it cannot be "appropriate" for a nonbinary transgender patient to be forced to undergo a vaginoplasty technique that results in a "binary" dysphoria-inducing outcome, any more than it would be appropriate to force a non-dysphoric binary cismale to undergo a dysphoria-inducing vaginoplasty.

Notes & References 9, 10.

Further I would argue that the standardization of penile inversion as a vaginoplasty technique is partially a product of unintentional system discrimination caused by medical professionals mostly interacting with binary transwomen who represent easily the largest share of transgender and nonbinary people (according to statscan). * Though 41% of the non-cis participants identified as nonbinary, I could not find specific data on the assigned gender at birth of the non-binary participants (which I believe was by design), but if we conservatively assume even the majority of nonbinary persons were assigned male at birth, nonbinary transfeminine people are still a serious minority compared to binary transwomen. And this doesn't even account for the fact that many nonbinary people don't even identify with a dominant gender like I do. (I am parafeminine) So ultimately what I am saying is I am a minority (parafeminine, a specific type of nonbinary), within a minority (nonbinary as a whole), within the collective trans/non-cis population which is itself already a significant minority. So, though penile inversion may be appropriate 60-80%+ of the time, that seriously neglects the entire picture. IE: I don't disagree with Dr X XXXX because even if penile inversion is likely one of multiple appropriate treatments for the majority of transpeople since most are binary, but nonbinary people like me do exist and have different needs! Therefore there are occasions where penile inversion is innappropriate even for medically compatible patients...

See Notes & References 33 and Definitions.

To further expand on OHIPs blatently obvious systemic discriminatory application of existing law, by denying funding for 100% of nonbinary surgical outcomes without merit, OHIP continues to be enabled to perpetuate the same stereotype – if nonbinary people can't receive care, their medical interventions can never actually become a standard of care. It's a self-fulfilling prophecy. I am one of multiple nonbinary people denied surgery funding at my clinic alone, despite identical techniques used as binary transpeople, based solely on the request containing a nonbinary result. The fact is it would never and could never become the standard of care if OHIP continues to deny funding to Nonbinary people. But to encapsulate the issue, Standards of Care should obviously be based on gender not based on sex/gender assignment at birth – otherwise it creates the environment for further violations of the Code (where a gender is excluded from treatment on that basis). Luckily previous rulings say it's not up to OHIP to decide (as it "remains the task of health care professionals to determine the nature of the medical services to be provided to a particular patient"), and likewise it has been determined by health professionals that penile inversion is not appropriate for me. Excuse my language, but in the plainest language possible: standards be damned, where it is determined by health care professionals that a specific treatment is not appropriate for me, and where a different treatment is deemed appropriate for me. That's what previous rulings say matters.

See Notes & References 9 and Dr XXX's Note and Application.

"The SOC-8 includes recommendations to promote health and well-being for gender diverse groups that have often been neglected and/or marginalized, including nonbinary people, eunuch, and intersex individuals. "..."TGD people encompass a diverse array of gender identities and expressions and have differing needs for gender-affirming care across their lifespan that is related to individual goals and characteristics". Obviously this means what may be standard for a binary transperson would not consistently be appropriate for a nonbinary transperson.

Notes & References 14.

Clearly there is not a "Concensus in Ontario" if Dr X XXXX's submissions don't even agree with the WPATH Standards of Care that is implemented into Appendix D of the schedule, as required of "appropriately trained provider"s. WPATH shows standard "surgical requests for nonbinary people AMAB include penile-preserving vaginoplasty", not vaginoplasty with penectomy, and certainly not penile inversion specifically! I don't care if Dr X XXXX commented, contributed, or even made submissions, if they are actively dismissing even minimal mandatory physician training, then how can they comment on this case? This dismissive strategy ignores entirely all evidence to the contrary in the medical community (even which has widespread support from the medical community), in an attempt to creatre the illusion that their opinion piece is universally accepted as fact (and let's be clear it is exclusively an opinion, nothing more). Simply, Dr X XXXX does not solely represent the entire medical community, and their own testimony doesn't even address the appropriate nuances of care, as care and treatment needs to be tailored to the individual patient. (My doctor, Dr XXX articulates this as well) Ultimately what is appropriate for some patients is not always appropriate for every patient for a variety of reasons, only some of which they have addressed. The context of all patient sub-groups (specifically gender variance) wasn't even applied or addressed at all. Instead they just applied an opinon as a blanket statement. I humbly await a much greater detail and clarification of these nuances as they apply in varieties of contexts, and sincerely hope that OHIP and Dr X XXXX could refrain from framing the issue/treatments so boldly as a "one gender, one issue, one treatment" application. My application/request is not about my birth assigned sex/gender (as that statement would have you believe), it is about my declared gender identity and it's appropriate treatment. Both OHIP's and Dr X XXXX's phrasing statements as "patients requiring [a] vaginoplasty" as one unit, focuses on grouping based on "transition direction" or "birth assignment", rather than gender identity/goals/needs/destination. This is a relevant nuance. I am not just being "picky" here. It matters to the diversity that this case demonstrates. Patients should be considered based on condition/needs, not the treatments themselves.

Notes & References 12 & 14.

For the duration of this appeal, I have personally felt that OHIP arguments and later Dr. X XXXX's testimony were designed and curated to compel me to align my gender transition with that of binary transgender individuals in various ways. It started with withholding funding for vaginoplasty unless I comply with a penectomy. I feel it's akin to Conversion Therapy. "Definition of conversion therapy 320.‍101 In sections 320.‍102 to 320.‍104, conversion therapy means a practice, treatment or service designed to"...."(e) repress a person’s non-cisgender gender identity;"... and "For greater certainty, this definition does not include a practice, treatment or service that relates to the exploration or development of an integrated personal identity — such as a practice, treatment or service that relates to a person’s gender transition — and that is not based on an assumption that a particular sexual orientation, gender identity or gender expression is to be preferred over another." Look very carefully at that paragraph and how it's worded – services related to gender transition cannot be based on an assumption that a particular gender identity or gender expression is to be preferred over another. Mr XXXX has used language such as it's a "binary world" and OHIP directly attacked my gender expression in their grounds of response as part of their reason for denial. Meanwhile, with their statements surrounding standards of care in Ontario, Dr. X XXXX appears to be actively promoting binary gender reassignement exclusively (penile inversion) for all medically viable surgical transitions as preferable to any other surgical transition, regardless of one's gender identity. By attempting to lump "patients seeking vaginoplasty" into a single bucket with exclusive focus on physical viability during their response, it seems Dr X XXXX only considers the binary model for gender transition by categorizing procedures and surgical treatments solely by gender/sex assigned at birth, instead of expressed gender, in a similar way that typical conversion therapists attempt to link a persons "correct expression" to their birth assigned gender/sex. The WPATH Standards of Care differs for each gender, so why am I being intentionally miscategorized, and feel corralled to binary surgical transition according to my assigned gender at birth?...I personally interpret these statements and acts by OHIP and Dr X XXXX to systemically intentionally or unintentionally repress my nonbinary gender identity – IE to get in the preferred box and accept the preferred gender assignment. Throughout this application and appeal, OHIP has attempted to create a false narrative that binary surgical transition was the only "valid" medical procedure (which we can tell from even their expert witness' testimony was nonsense). Earlier OHIP insisted that I must have a penectomy just for a vaginoplasty to be a "valid medical procedure" (which would always result in a binary surgical transition) which they now show to not be true. They suggested "Vaginoplasty (including an insured OHIP service", despite my clear intention to avoid penectomy at all costs. As mentioned previously, OHIP insured "service"s are services as it pertains to S1 of the Code. Also, by Dr X XXXX completely excluding gender identity from their statement regarding "vaginoplasty techniques [that] would be appropriate", at a bare minimum they aren't completely addressing the "appropriateness" question within context, and at a maximum they are actively promoting to impose binary surgical transition on all medically viable gender identities seeking vaginoplasty (including nonbinary people like myself), which if that is the case, it is personally appalling considering someone in a prestigous position as theirs. I sincerely hope that is not the case, and anticipate a thorough clarification as it pertains exclusively to nonbinary gender identities, which is the medical/treatment context of this case. Simultaneously I fully acknowledge the possibility that Dr X XXXX's statements were induced to appear this way by what I truly believe was OHIP's deliberate exclusion of complete context in their question. So I ask Dr X XXXX, are you proposing penile inversion, a form of binary surgical transition, is the standard of care for all patients requiring vaginoplasty, including nonbinary people, or has the phrasing of the question manipulated your testimony into appearing that way? Are there more details and exceptions that were left out because a specific question wasn't asked of you by OHIP? Please clarify with exclusive focus within the context of the case at hand. Lastly and most specifically, in light of this completely unaddressed variable, I ask Dr X XXXX what do you consider the various standards of care for nonbinary persons seeking a nonbinary surgical transition?

Notes & References 30, 35 & Jun 27, 2022 Decline Letter.

Final Summary:

I believe I have thoroughly established:

PS: If you have taken the time to thoroughly read this entire file already, then I sincerely thank you for your time and consideration, with sincerest respect.

Notes & References (including exibits, documentary evidence, witness statements etc.):

  1. Diagnostic and Staistical Manual of Mental Disorders, Fifth Edition (DSM-V) by American Psychiatric Association (2013), pages 451-452, including from pg 452: "Diagnostic Criteria - Gender Dysphoria in Adolescents and Adults" 302.85 (F64.0) "A. A marked incongruence between one's experienced/expressed gender and assigned gender, of at least 6 months' duration, as manifested by at least two of the following:
    1. A marked incongruence between one's experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics)
    2. A strong desire to be rid of one's primary and/or secondary sex characteristics because of marked inconguence with one's experienced/expressed gender (or in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics).
    3. A strong desire for the primary and/or secondary sex characteristics of the other gender.
    4. A strong desire to be of the other gender (or some alternative gender different from one's assigned gender).
    5. A strong desire to be treated as the other gender (or some alternative gender different from one's assigned gender).
    6. A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one's assigned gender).
    B. The condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning."
  2. Ontario Schedule of Benefits, (January 25, 2022 (effective July 1, 2022)) , AD8-AD9, Schedule of Benefits (*warning big file*) Search for "AD8".
  3. Human Rights Code, R.S.O. 1990, c. H.19, PART I, FREEDOM FROM DISCRIMINATION, "Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability." Ontario Human Rights Code
  4. An Act to amend the Canadian Human Rights Act and the Criminal Code, S.C. 2017, c. 13, Assented to 2017-06-19, "3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered." An Act to amend the Canadian Human Rights Act and the Criminal Code
  5. R.R.O. 1990, Reg. 552: GENERAL
    Out of Country Services, 28.4 (2) Services that are rendered outside Canada at a hospital or health facility are prescribed as insured services if,
    (a) the service is generally accepted by the medical profession in Ontario as appropriate for a person in the same medical circumstances as the insured person;
    (b) the service is medically necessary;
    (c) either,
    (i) the identical or equivalent service is not performed in Ontario, or
    (ii) the identical or equivalent service is performed in Ontario but it is necessary that the insured person travel out of Canada to avoid a delay that would result in death or medically significant irreversible tissue damage;
    (d) in the case of a hospital service or a service rendered in a health facility, the service, if performed in Ontario, is one to which the insured person would be entitled without charge pursuant to section 7 in the case of an in-patient service or section 8 in the case of an out-patient service; and
    (e) in the case of a service performed for an insured person who is admitted as an in-patient at a hospital or for an overnight stay at a health facility in Ontario, the insured person would ordinarily have been admitted to a public hospital as an in-patient. O. Reg. 135/09, s. 4; O. Reg. 76/12, s. 7 (1).
    Reg. 552
  6. Dr XXX's witness statement and submissions are evidence in support that I meet criteria outlined in Reg 552 for Out of Country Services. The letter confirms it is medically necessary to treat Gender Dysphoria, and that normally this procedure would require an overnight stay if performed in Ontario, satisfying Reg 552, 28.4(2) e.
  7. Dr XXX's original Application titled "Request for Prior Approval for Funding of Sex-Reassignment Surgery" clearly shows that I meet the out of Country criteria from Reg. 552.
    When asked: "Is this treatment generally accepted in Ontario as appropriate for a person in these medical circumstances?", Dr XXX checked Yes. (this satisfies Reg 552, 28.4 (2) "a")
    The form stated "Clinical Diagnosis (condition for which treatment is sought): Gender Dysphoria". (this satisfied Reg 552, 28.4 (d) "b")
    When asked "Is this treatment performed in Ontario by an identical or equivalent procedure?", Dr XXX checked No. (this satisfied Reg 552, 28.4 (2) "c, i")
  8. Attached Letter from XXX X, Nurse Practitioner at X X X X X in X, my primary care physician, stating that she also supports this surgery.
  9. Flora v. General Manager, Ontario Health Insurance Plan, [Indexed as: Flora v. Ontario (Health Insurance Plan, General Manager)] 91 O.R. (3d) 412, Court of Appeal for Ontario, Sharpe, Cronk and Gillese JJ.A. July 4, 2008
    Canlii Flora v. Ontario
    Downloaded 10/30/2022.
  10. Gender confirming surgery, Updated: October 21, 2021, Published: March 09, 2016, Downloaded 10/30/2022. "Gender Confirming Surgery"
  11. I didn't want to distract from the point by arguing that I do have some genital dysphoria relating to testicular/scrotal dysphoria, as I don't think it makes a difference when I'm eligibile even without DSM-V's gender dysphoria criteria #2, but I still want to note it here in case it becomes relevant later. Additionally they don't specify to what 'degree' your genital dysphoria must be to meet even criteria 2, or if you must have complete genital dysphoria to qualify, because you either have dysphoria or you do not. It doesn't matter to what degree.
  12. Appendix D, AD8. "the assessment must be completed by a provider trained in the assessment, diagnosis, and treatment of gender dysphoria in accordance with the World Professional Association for Transgendered Health (WPATH) Standards of Care that are in place at the time of the recommendation (“appropriately trained provider”)."
  13. ---------------------- (approx 2020). I recorded a shortened clip of relevant parts and transcribed 01/14/2023.
  14. Standards of Care for the Health of Transgender and Gender Diverse People, The World Professional Association for Transgender Health, Version 8.
    WPATH v8
  15. Email 03/14/2022 exchange with ----------. They forwarded my inquiry to ----- and then Responded to me that he would take my case.
  16. Public Medical Journal, Retrieved 12/15/2022.
    2022 Apr 25;6(1):39. PMID: 35467181 PMCID: PMC9038968 DOI: 10.1186/s41687-022-00446-x
  17. I would argue that OHIP gained an advantage by delaying evidence submissions past deadlines, since they have secondary follow-up dates that they can submit documents unlike I was given. This could've resulted in me losing the opportunity to respond if I hadn't contacted hsarb repeatedly. During the 10/18/22 conference, OHIP was offered a month span to submit documents during the conference, but they asked for additional time during that call, and eventually all parties agreed to a November 30th 2022 deadline. The conference report expected me in turn to respond to their submissions by December 29th 2022, and said the respondents "may file information in reply, on or before January 10, 2023.". That was a date to respond to my submissions, not to submit materials such as "a list of proposed witnesses (e.g. Dr. XXX XXXXX) and witness will-say statements, upon which it may wish to rely," which was agreed to be Novermber 30th 2022. By delaying and effectively using the secondary date for their primary submissions and witness lists instead of replys to my submissions, this provides an advantage to OHIP since I lose the ability to respond as agreed during our conference. Even after contacting HSARB who in turn contacted OHIP, they still had made no response or attempt or request for any extension until 12/12/2022, only to state that "the Respondent’s Grounds of Response require an amendment which will be provided to the Appeal Board and to the Appellant within 10 days of [that] email"...effectively extending their November 30th deadline to December 22nd 2022. Meanwhile I was expected to respond to their submissions by December 29th, and despite my complains it was only extended to January 13th 2022 initially. Despite all this, they still did not comply with their own self-imposed deadline, and further requests from X XX of HSB went ignored by the Respondents. A new deadline was given to them a 3rd time, of January 20th, 2023 and they had not even provided their complete witness list (including the name of their "expert witness") until after relentless requests to HSARB from me resulted in them finally complying on January 18th 2023.
  18. HSARB Rules Tribunal Rules for the Hearing
  19. Evidence Act, R.S.O. 1990, c. E.23 , Retrieved 12/15/2022. Ontario Evidence Act "This Act applies to all actions and other matters whatsoever respecting which the Legislature has jurisdiction. R.S.O. 1990, c.E.23, s.2." "'court' includes a judge, arbitrator, umpire, commissioner, justice of the peace or other officer or person having by law or by consent of parties authority to hear, receive and examine evidence; ('tribunal') "
  20. "Admissible Evidence at a Hearing<
    16.01(1) Subject to subsections (2) and (3) below, the Board, in its discretion, may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court:
    (a) any oral testimony; and
    (b) any document or other thing; relevant to the subject matter of the hearing and may act on such evidence, but the Board may exclude anything unduly repetitious.
    (2) Nothing is admissible in evidence at a hearing:
    (a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or
    (b) that is inadmissible by the statute under which the proceeding arises or any other statute.
    (3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding before the Board."
    HSARB Rule 16 , Retrieved 12/14/2022.
  21. The Respondents identified both my gender ("nonbinary") and gender expression as a justification for their denial of approval, all within the context of my "translating" into terms cispeople could understand. (09/20/2022 Grounds of Response, C, vi). They also sought to manipulate Dr XXX's wording surrounding "gender expression" and "interpretation" in a manner that invalidated the intent behind it. Neither myself nor my endocrinologist are lawyer's, and both of us should not be held to higher standards of language than within that context, let alone higher standards than OHIP holds themselves. And I say higher standard because if they are to take everything in writing as literal rather than the intent (regardless of the generally accepted intent), they would interpret SRS appropriately as well (as is generally considered to be a misnomer simply synonymous with "gender affirmation" in Ontario).
  22. (As agreed 12/21/2022 by X XX, Health Board Secretariat) a support person may attend the hearing with me in case I'm not able to manage the full hearing on my own, or in the unlikely event that I need interpretation services or to have them speak on my behalf. For longer interactions, it get's harder for me to speak than to write. HBS agreed to additional breaks for the same reason, so hopefully that is sufficient alone, but it's important to note I may not be able to consistently control (or be aware of) correct timing to speak, so please be cognisant of that as it's unintentional. Furthermore, as this is a complex subject, I ask that all parties use direct literal language, and to avoid being vague or using unusual idioms in order to exploit my disability.
  23. "Gender-affirming surgeries are associated with numerous positive health benefits, including lower rates of psychological distress and suicidal ideation, as well as lower rates of smoking, according to new research led by Harvard T.H. Chan School of Public Health.

    The study examined data from the 2015 U.S. Transgender Survey, which included nearly 20,000 participants, 38.8% of whom identified as transgender women, 32.5% of whom identified as transgender men, and 26.6% of whom identified as nonbinary. Of the respondents, 12.8% had undergone gender-affirming surgery at least two years prior and 59.2% wanted to undergo surgery but had not done so yet. Gender-affirming surgeries were associated with a 42% reduction in psychological distress and a 44% reduction in suicidal ideation when compared with transgender and gender-diverse people who had not had gender-affirming surgery but wanted it, according to the findings. The study also found a 35% reduction in tobacco smoking among people who had gender-affirming surgeries. “Going into this study, we certainly did believe that the gender-affirming surgeries would be protective against adverse mental health outcomes,” lead author Anthony Almazan, an MPH candidate at Harvard Chan School, said in an April 28, 2021, HealthDay article. “I think we were pleasantly surprised by the strength of the magnitudes of these associations, which really are very impressive and, in our opinion, speaks to the importance of gender-affirming surgery as medically necessary treatment for transgender and gender diverse people who are seeking out this kind of affirmation.”"
    -> "Mental health benefits associated with gender-affirming surgery"
    "We commend the authors on their thorough exploration of the USTS, the largest collection of data on the experience of transgender and gender diverse invididuals to our knowledge to date."
    "The availability of data on this community is a major impediment to addressing its needs and 1 reason the USTS was conducted in the first place, since nearly all governmental surveys continue to omit gender identity as a survey item."
    JAMA Study
    "Gender-Affirming Surgeries and Improved Psychosocial Health Outcomes",
    Marano, Andrew A.; Louis, Matthew R.; Coon, Devin, JAMA Surgery , Volume 156 (7) – Jul 28, 2021, RETRIEVED 01/20/2023.
  24. "Pedicled intestinal transplant. The first reported use of an intestinal transplant for vaginoplasty in a nontranssexual patient was provided by Sneguireff in 1892 using the rectum40 and Baldwin in 1904 using the ileum.41 However, the technique of colocolpopoiesis was first used in transsexuals only in 1974, when Markland and Hastings used both cecum and sigmoid transplants.42 " ....
    "The advantages of using a rectosigmoid transplant are its length and a texture and appearance similar to a natural vagina.48,49 In addition, it is the only method that provides a vaginal lining with natural lubrication.43,4 "
    "Gender Identity Disorder: General Overview and Surgical Treatment for Vaginoplasty in
    Male-to-Female Transsexuals", Gennaro Selvaggi, M.D., Peter Ceulemans, M.D., Griet De Cuypere, M.D., Koen VanLanduyt, M.D., Phillip Blondeel, M.D., Ph.D., Moustapha Hamdi, M.D., Cameron Bowman, M.D., and Stan Monstrey, M.D., Ph.D., Ghent, Belgium
  25. N.M. v Ontario (Health Insurance Plan), 2020 CanLII 97431 (ON HSARB), VII, 50.
    Canlii N.M. v Ontario
    RETRIEVED 01/30/2023.
  26. "Long-Term Results in Patients after Rectosigmoid Vaginoplasty", Kwun Kim, Seok M.D.; Hoon Park, Ji M.D.; Cheol Lee, Keun M.D.; Min Park, Jung M.D.; Tae Kim, Jeong M.D.; Chan Kim, Min M.D. Author Information, Plastic and Reconstructive Surgery 112(1):p 143-151, July 2003. | DOI: 10.1097/01.PRS.0000066169.78208.D4
    RETRIEVED 01/31/2023.
  27. "New laparoscopic peritoneal pull-through vaginoplasty technique", J Hum Reprod Sci. 2014 Jul-Sep; 7(3): 181–186. doi: 10.4103/0974-1208.142478, PMCID: PMC4229793, PMID: 25395743
    RETRIEEVD: 01/31/2023.
  28. "Mayer-Rokitansky-Küster-Hauser (MRKH) Syndrome is a rare congenital disorder that affects the female reproductive system. This condition is characterized by an underdeveloped or nonexistent uterus and vagina, though women still do have normally-functioning ovaries and a female chromosome pattern." --
    "What Is Mayer-Rokitansky-Küster-Hauser (MRKH) Syndrome?",
    MRKH Syndrome
    RETRIVED: 01/31/2023.
  29. Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32 (CanLII)
    Date: 2006-11-28, File number: HR-0507; 0510-02
    Canlii Hogan v. Ontario
    RETRIEVED: 02/01/2023.
  30. A.T. and V.T. v. The General Manager of O.H.I.P, 2010 ONSC 2398 (CanLII),
    A.T. and V.T. v. The General Manager of O.H.I.P
    RETRIEVED: 02/02/2023
  31. "Improving Access to Sex Reassignment Surgery", November 06, 2015
    Government News Release: Improving Access to Sex Reassignment Surgery
    RETRIEVED: 02/02/2023.
  32. "Age Is Just a Number: WPATH-Affiliated Surgeons' Experiences and Attitudes Toward Vaginoplasty in Transgender Females Under 18 Years of Age in the United States", Christine Milrod, PhD, Dan H. Karasic, MD, The Journal of Sexual Medicine, Volume 14, Issue 4, April 2017, Pages 624–634, Published: 19 March 2017
    The Journal of Sexual Medicine, Volume 14
    RETRIEVED: 02/03/2023.
  33. "41,355 who were non-binary" (without birth assigned gender statistics) and "there were more transgender women (31,555) than transgender men (27,905) "
    Statistics Canada
    RETRIEVED: 02/03/2023.
  34. Towards Developing a Non-ableist and Non-cisnormative Taxonomy of Bodily Integrity Identity and Expression in Canadian Human Rights Law, 2021 CanLIIDocs 13665, Author(s): Daniel W Dylan, Source(s): Robson Hall, Faculty of Law at the University of Manitoba
    CanLIIDocs 13665
    RETRIEVED: 02/04/2023.
  35. STATUTES OF CANADA 2021, CHAPTER 24, An Act to amend the Criminal Code (conversion therapy)
    RETRIEVED: 02/04/2023.
  36. "Gender-affirming surgical care in British Columbia", Vol. 64 No. 1, January/February 2022, pg 28, Sahil Kumar, MSc, Elise Bertin, BSc, Ray Croy, BSN, RN, Krista Genoway, MD, FRCSC, Alex Kavanagh, MD, FRCSC
    BC Medical Journal
    RETRIEVED: 02/07/2023.
  37. "Amendments to the Health Insurance Act and Regulation 552 - Expanding Access to Insured Sex-reassignment Surgery", Regulation 552, November 6, 2015
    2015 Ammendments (for some reason the link is glitching now, I'm sorry)
    RETRIEVED: 02/04/2023.