OHIP v. K.S.
Egale intervenes to protect nonbinary people’s access to gender-affirming care
Jump to: Introduction | Background | Our Legal Arguments | Case Outcome | Documents
Introduction:
Egale intervened in OHIP v. K.S. in order to share our expertise on 2SLGBTQI people and issues with the court. The goal of Egale’s interventions is to make sure that our communities’ needs are understood and considered in courts’ decision-making processes.
This case centers on access to gender-affirming care for a nonbinary person who requires surgical care that challenges expectations and stereotypes of gender and surgical transition. The barriers to accessing gender-affirming surgeries, which have been recognized as medically necessary for decades, remain high for trans and nonbinary people in Canada. An interpretation of the eligibility criteria for gender-affirming surgeries that relies on binary stereotypes is discriminatory and denies equal dignity and autonomy to nonbinary people.
Quick Facts
Case Status: Decision rendered
Case Name: Ontario (Health Insurance Plan) v. K.S.
Court: Ontario Court of Appeal
Egale’s Role: Intervener
Representation: Daniel Girlando, Stephen Chew and Hanna Rioseco of Borden Ladner Gervais LLP
Case Background
K.S. is a nonbinary transfeminine person who lives in Ontario. She applied for prior approval for funding through Ontario’s public health insurance plan, called OHIP, for an out-of-country vaginoplasty without penectomy. OHIP denied her funding request because they considered the surgery “experimental” – even though vaginoplasties are specifically covered by OHIP and regularly performed in Ontario.
After an administrative tribunal agreed with K.S. that the gender-affirming surgery she needed was covered by OHIP, OHIP appealed to the Divisional Court of the Ontario Superior Court of Justice. The Divisional Court upheld the tribunal’s decision. OHIP then appealed to the Ontario Court of Appeal.
Our Legal Arguments and What We’re Fighting For
In order to help the court understand the context of gender-affirming care for Two Spirit, trans, nonbinary, and gender nonconforming (2STNBGN) people in Canada, we first summarized medical research that shows that surgical gender-affirming care is essential for 2STNBGN people who wish to pursue it. We also summarized court decisions that found that discrimination against 2STNBGN people in Canada is widespread, especially in the context of healthcare, and that it is often the result of administrative decision-makers’ ignorance of 2STBNGN people’s lived realities. Further, we explained that the regulations should be interpreted in a way that is consistent with the leading international protocol for trans health care: the World Professional Association for Transgender Health (WPATH) Standards of Care Version 8 (SOC-8).
Before the Divisional Court, Egale argued that, especially in light of this context, it is essential for the court to take the Charter values of dignity and equality into consideration. In other words, it would be wrong to interpret the regulations that govern OHIP coverage in a way that denies a nonbinary person equal access to gender-affirming care and autonomy over her own body. These Charter arguments were made by another intervener before the Court of Appeal.
Case Outcome
On April 22, 2025, the Ontario Court of Appeal dismissed OHIP’s appeal, leaving the administrative tribunal decision in place, meaning that OHIP must fund the surgery, and paving the way for KS to finally proceed with the health care that she has long awaited.
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