Ruling finds Ontario Health Insurance Plan should cover vaginoplasty cost
In a case arising from a request for insurance coverage for a vaginoplasty recommended by a patient’s healthcare team, the Ontario Court of Appeal upheld the Divisional Court’s finding that the Schedule of Benefits specifically listed the proposed procedure.
In Ontario (Health Insurance Plan) v. K.S., 2025 ONCA 306, the respondent wanted to have a vaginoplasty, a type of gender-affirming surgery. She underwent assessments from appropriately trained health professionals, who recommended the surgery, and fulfilled all other requirements for authorization.
The respondent then requested prior authorization and confirmation from the Ontario Health Insurance Plan (OHIP) general manager – the appellant in this case – that OHIP would cover the vaginoplasty cost.
The general manager denied coverage on the basis that the Schedule of Benefits for Physician Services under Ontario’s Health Insurance Act, 1990 did not specifically list the proposed procedure because a penectomy would not accompany the vaginoplasty.
A penectomy was another procedure that the Schedule of Benefits also listed and that sometimes accompanied a vaginoplasty. The proposed procedure’s allegedly experimental nature was another reason the general manager cited for denying coverage.
The Health Services Appeal and Review Board granted the respondent’s appeal of the general manager’s unfavourable decision.
The board determined that a vaginoplasty, whether or not accompanied by a penectomy, was an insured service since the Schedule of Benefits specifically listed it. The board added that it did not matter whether the recommended vaginoplasty techniques were experimental.
After unsuccessfully appealing to the Divisional Court, the general manager elevated the case to the appeal court with leave.
The appeal court first addressed the relevant legislative and regulatory scheme. The Health Insurance Act provides that OHIP shall cover the cost of insured services incurred by Ontario residents.
Section 24(1) of the regulations excludes services generally accepted as experimental in the province from insured services. This exclusion does not apply to services that the Schedule of Benefits specifically includes.
The Schedule of Benefits designates specific “sex-reassignment surgical procedures” as insured services as long as there is prior authorization, which the general manager will only grant for specifically listed services, including vaginoplasty.
The Court of Appeal for Ontario dismissed the appeal. The appeal court saw no ambiguity in the legislative or regulatory language. Like the Divisional Court, the appeal court said the board’s interpretation of the legislative and regulatory scheme was correct.
The appeal court ruled that the vaginoplasty the health professionals recommended for the respondent was an insured service because the Schedule of Benefits specifically listed it under “sex-reassignment surgical procedures.”
The appeal court added that the respondent also met the strict requirements to seek prior authorization from the general manager.
The appeal court saw no error in the Divisional Court’s failure to find that it should exclude a vaginoplasty without a penectomy, also known as a penile preservation vaginoplasty, because it was an experimental procedure.
The appeal court rejected the general manager’s argument that the proposed procedure was not an insured service since a penectomy would not accompany the vaginoplasty. The appeal court noted that a penectomy was a different procedure which the respondent did not seek and her health professionals did not recommend.
Lastly, the appeal court addressed the general manager’s argument that s. 24(1) of the regulations excluded the proposed procedure because it was experimental. The appeal court said it did not need to consider this argument.
The appeal court held that the experimental exclusion in s. 24(1) did not apply to the proposed procedure in this case and would apply only to services that the Schedule of Benefits did not specifically list as insured.
