The Ontario Human Rights Tribunal has ruled that the provincial government must pay for sex reassignment surgery (SRS) for three transsexuals stranded in mid-process when the Mike Harris Tories delisted the procedure in 1998.
But the Nov 9 interim ruling also stated that the government did not have to pay for a fourth plaintiff, who had started the process after the delisting. The interim ruling, if confirmed in the final ruling, means that the government would not have to relist SRS under the Ontario Hospital Insurance Plan. One of the three panel members issued a very strongly worded dissent.
Martine Stonehouse, one of the three transsexuals supported by the tribunal, has mixed feelings.
“The way I feel about it is it may be a personal benefit to me, but it’s only a shallow victory. I won’t be happy until it’s relisted for everybody,” says Stonehouse. “I’m still going to fight on if they don’t relist for everybody. I’m going to have my surgery and fight on.”
The interim ruling found that the three plaintiffs’ “right to equal treatment with respect to services, without discrimination because of disability, has been infringed by Ontario.”
The panel ordered the government to compensate the other two plaintiffs for the costs they incurred in completing their SRS and to pay for the surgery for Stonehouse.
David Jensen, a spokesperson for the Ontario Ministry Of Health, says the government will obey the ruling.
“The government will comply with this interim order. But we’re still waiting for the final decision. We’ll decide our next step once we’ve had time to review that.”
The ruling calls for funding for the three complainants to be provided under the system in place in 1998. Stonehouse says that could mean her having to pay thousands of dollars out of her own pocket. She points out that in 1998, OHIP would send transsexuals to England for the actual surgery.
“No hospital in Canada performs this procedure,” says Stonehouse. “There’s only one private health clinic in Montreal, and OHIP doesn’t like paying private clinics. When people went over to England, OHIP wouldn’t cover the travel costs.”
Both Stonehouse and Laurie Arron, the advocacy director for the queer lobby group Egale Canada, say everybody should wait until the final decision before reacting. But Arron admits it does not bode well.
“What they’ve said so far is a very strong indication that they will find in favour of delisting.”
But Arron says he takes hope from the dissent by panel member Mary Ross Hendriks. Hendriks supported the three successful plaintiffs, but also supported funding the fourth plaintiff and called for the immediate relisting of SRS. Hendriks was scathing in attacking the Harris government.
“The evidence indicates that the delisting of sex reassignment surgery, without consultation from medical experts, the Ontario Medical Association or from the senior working groups or committees formed to review changes, was unusual even for surgical procedures performed out-of-province, because the request did not come from ministry staff, it came directly from the Minister Of Health…. Ontario has not adduced any evidence that cabinet had a non-discriminatory reason at the time for its decision to delist…. Further, I find that the conduct of Ontario was negligent, reckless and an abuse of power.”
Arron says he hopes the dissent will persuade the government to relist the services, which, he says, used to cost the government about $120,000 for six surgeries each year. If not, he says there will almost certainly be an appeal of the ruling. He points out that there is already a court challenge under the Canadian Charter Of Rights And Freedoms by Toronto transsexual Michelle Josef.
“I think it might cost them more to fight than to relist.”
As of October, 2004, Egale says SRS was covered by BC for surgery in the US. Alberta and Manitoba paid for services at the Montreal private clinic. Saskatchewan covered a third of the costs at the clinic. Both Saskatchewan and Manitoba required approval from Toronto’s Gender Identity Disorder Clinic, and did not cover all related procedures such as breast augmentation or electrolysis. Quebec paid for the procedure, but only if performed at a recognized provincial hospital, none of which perform it. Cases in the Maritimes were dealt with on an individual basis; information was not available for the territories.