Ontario must pay for transgender hermaphrodite: Court sides with patient who wants a vagina to accompany the penis they were born with because they identify as both male and female

The Canadian taxpayer is set to pay for a 'penis sparing vaginoplasty' for a patient who doesn't identify as male or female and wants both genitalia.

A court in Ontario ruled in favor of the person who called on the state to pay for the specialized gender-affirming surgery.

The operation will see them keep their genital configuration with an intact penis, while constructing a vaginal canal.

The court claimed denying the procedure would violate the individual's 'charter-protected right to personal security.'

This unanimous ruling by a three-member panel of judges from Ontario's Divisional Court sets a precedent that could broaden access to 'bottom surgery'. 

The Ontario resident, 33, was born male but identifies as non-binary, meaning they are not exclusively male or female 'but literally a mix', court documents claim.

Ontario's Health Insurance Plan (OHIP) initially denied the request on the grounds that the procedure is experimental and is not performed in Canada .

But the patient - referred to only as K.S. - complained to the province's appeals board who overturned the decision, which then prompted a counter-appeal.

'There have been so many times that I have had to justify myself to just be,' K.S. told CTV News Toronto. 'People who aren't trans or nonbinary don't have to get that permission to exist.' 

'I have been waiting for this day for years!!,' she said in a statement to the outlet. 'Though I know there is still time for OHIP to keep attempting to appeal this, I am relishing this day as it's an extraordinarily huge milestone.' 

The subject has been embroiled in a legal dispute with the Ontario Health Insurance Plan (OHIP) since 2022, the National Post reported.

The surgery sought by K.S., not available in Canada, involves creating a vaginal opening without removing the penis. K.S., 33, identifies as female dominant and prefers a feminine name.

According to court documents, K.S. has suffered from gender dysphoria since they were a teen. They are non-binary but skew 'transfeminine' and go by she/her.

K.S.'s doctor, an Ottawa endocrinologist, gave testimony supporting her request for the unusual surgery.

'It is very important for (K.S.) to have a vagina for her personal interpretation of her gender expression but she also wishes to maintain her penis,' the doctor wrote in a letter of support.

It is unclear how much the surgery will cost but traditional 'reassignment' procedures usually cost between $10,000 USD and $70,000.

OHIP initially argued against funding, claiming the procedure wasn't listed among covered sex-reassignment surgeries.

However, K.S. persisted, arguing that the surgery was crucial for her identity and that mandating penile removal would invalidate her gender expression.

Concerns were also raised about potential complications and impact on sexual function.

Following K.S.'s appeal to Ontario's Health Services Appeal and Review Board, which overturned OHIP's decision, OHIP contested the ruling in the Divisional Court.

OHIP argued that the procedure was not specifically listed as an insured service and was considered experimental in Ontario.

However, the court upheld the appeal board's decision, emphasizing that vaginoplasty and penectomy are distinct services eligible for funding, regardless of the common practice of combining them.

OHIP's appeal was dismissed, with the province ordered to cover K.S.'s legal costs.

A similar case last June saw the OHIP fund the surgery of a public servant, 41, who had a penis constructed without removing their vagina and uterus - despite initially denying the claim.

The cases reflect a small but growing demand for niche surgeries for people who identify with one of the more complicated gender groups.

'(K.S.) is transfeminine but not completely on the 'feminine' end of the spectrum (and) for this reason it's important for her to have a vagina while maintaining a penis.'

K.S. argued that removing her penis would only make her gender dysphoria worse.

But critics told the National Post the request illustrates 'how far off the rails' gender-affirming treatment has gone.

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

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

Usually male-to-female genital surgery involves using tissue from the penis to craft a vaginal canal and glands from the organ are turned into a clitoris.

But in K.S.'s case, surgeons will use skin grafts from the abdomen, colon or scrotum to create the vagina.

The goal with 'phallus-preserving vaginoplasty' is to create a vagina that is 'aesthetically pleasing' while 'maintaining the original genital structure' of the penis, according to the Art Plastic Surgery clinic in New Jersey.

The penis can still be used for sex or urination, it states.

But many doctors warn the operation is risky and the techniques used to perform it still poorly understood.