Paying for Non-Binary Gender Reassignment Surgery

Health care or human rights?

Photo by Marcel Scholte on Unsplash

One of the many disturbing revelations in the WPATH Files is the variety of so-called gender affirming surgeries which are now on offer. In addition to the relatively well-established procedures of vaginoplasty (construction of an artificial vagina) and phalloplasty (construction of an artificial penis), gender surgeons now offer phallus and /or testicle preserving vaginoplasty, vagina preserving phalloplasty and nullification surgeries which remove all the external genitalia. It gets worse. An article in Healthline describes penis-splitting, which is sometime part of BDSM practices (follow the link at your own risk).

It is difficult to find an appropriate term for these types of operations. They are often described as experimental, but that is not accurate. An experiment suggests a scientific undertaking in which outcomes are tracked and used to test a per-determined hypothesis. Nothing of the sort is happening in gender clinics. Non-standard seems to be the most neutral term.

The surgeons who perform these non-standard operations justify them with an approach to medical ethics in which patient autonomy takes priority over all other principles. This approach might be acceptable in a purely liberal, individualist model of care in which consenting adults paid for the surgery and any follow up care out of their own resources. However, very few transgender activists are liberal individualists. They want the costs of surgery to be paid for by public or private health insurance. This requires them to make out a legal and ethical case for shifting the costs onto taxpayers or other premium payers.

The Ontario Court Case

This issue has been debated in two recent cases in Ontario, Canada, which are both discussed in the WPATH files. In one case, the Ontario Health Insurance Plan (OHIP) agreed to fund a vagina-preserving phalloplasty for a transmasculine patient.

The second case, which was a request for a penis-preserving vaginoplasty proceeded to a court case where it was found that the surgery was covered. The applicant, described in the judgment as K.S., was a male who identified as non-binary but “female dominant” and therefore used a female name and pronouns. OHIP denied the K.S.’s request for a penile-preserving vaginoplasty to be performed at the Crane Center for Transgender Surgery in Austin, Texas, and the K.S. appealed to the Health Services Appeal and Review Board which allowed the K.S.’s request. OHIP appealed to the Divisional Court, which dismissed the appeal and ordered OHIP to fund the surgery.

K.S. claimed that the non-standard surgery was necessary to express “her” non-binary identity and also to preserve the ability to orgasm. The review board decision explained:

•         Through her endocrinologist, the Appellant learned that unless she receives supplementary topical testosterone, she is unable to have an orgasm. This condition is referred to as “orgasm dysfunction”. Currently, the low-dose testosterone she receives is applied directly to the existing penis, in order to provide a tiny amount to keep the nearby prostate functional. The Appellant explained that since she cannot apply the gel inside a vaginal cavity or rectally, and because it is an alcohol-based irritant, she needs to maintain the penis in order to continue the testosterone therapy, and retain the ability to have an orgasm. The Appellant added that because she no longer produces any hormones, she requires a small amount of testosterone to align with a "female level" and maintain functionality. The Appellant submitted that it is unjust to deny her the ability to have an orgasm for the rest of her life.

 •         The Appellant indicated that another complication of hormone therapy is that it has created urinary incontinence issues. The Appellant is concerned that a vaginoplasty with a penectomy will create additional urological rerouting complications and intensify her incontinence problems. By retaining the penis the Appellant believes she can avoid those additional complications.

Although K.S. was not named in the judgment, a reporter for Reddux Magazine was able to identify him through posts on Reddit in which he discussed the case. In addition to the non-binary identity referred to in the court case, K.S. identifies as a “transgender baby” and has a diaper fetish.  He says that he has irritable bowel syndrome and at one point he discussed the ethics of making himself incontinent to the point of being unable to work. He also suffers from bipolar disorder. This is an individual who requires psychiatric help and not surgery.

However, none of the information from the Reddit posts was before the review board or the court. K.S. had the required diagnosis of gender dysphoria and referral letters from doctors. The only remaining question was whether vaginoplasty without a penectomy was covered under the Ontario Health Insurance Act and regulations. The Act provides coverage for “medically necessary services performed by a physician” including those specifically listed in the Schedule of Benefits in the regulations. OHIP argued that a vaginoplasty without a penectomy was an experimental procedure and was therefore excluded from coverage.

However, the court found that the exclusion for experimental surgeries does not apply to procedures which are specifically listed in the Schedule of Benefits which listed coverage for “External Genital Surgery (clitoral release, glansplasty, metoidioplasty, penile implant, phalloplasty, scrotoplasty, testicular implants, urethroplasty, vaginectomy, penectomy, vaginoplasty).” (emphasis added).

The Divisional Court concluded, “The comma between each procedure suggests they are discrete, separate procedures that are eligible for funding if the conditions for prior approval are sought.” The patient had obtained the necessary referral letters and met the other requirements in the regulations, so the court ordered OHIP to approve the surgery.

The court and the appeal board also noted that the OHIP regulations say that treatment recommendations are to be made by practitioners trained in the current WPATH standards of care and noted that WPATH SOC8 refers to individualized treatments for non-binary persons. This is unsettling because it suggests that some of the procedures described in the WPATH chapter on eunuchs could also qualify as insured services in Ontario. The decision has limited scope. It will not apply to provinces outside of Ontario and will have limited application to services which are not specifically listed in a schedule.

The court decision simply implements a policy decision by the Ontario government to provide funding for various gender surgeries. It is a sound interpretation of the wording of the regulation but it has nothing to say on the broader issue of whether the policy decision to fund gender reassignment surgery is sound.

Is This Even Health Care?

If you consider any form of gender reassignment surgery, whether standard or non-standard, under the ordinary rules for determining medical necessity, it is hard to see how it qualifies as healthcare at all. K.S will not be any healthier in a physical sense after the surgery. He will have a surgically created cavity between his penis and anus which will need to be cleaned and dilated regularly. This combined with his fondness for diaper fetish play could create a risk of life-threatening infections.

Even standard genital reconstruction surgeries have high complication rates and often require follow up surgery. In a survey of phalloplasty and metoidioplasty patients a group of 129 reported 281 complications requiring 142 revisions. The complication rates for non-standard surgeries are unknown but are likely to be substantial.

The mental health benefits of gender reassignment surgery are also questionable. Advocates for these surgeries often claim that regret rates are less than 1%. Leaving aside the questionable reliability of these regret studies, which usually suffer from multiple flaws including very high loss to follow up, lack of regret is too low a bar to justify spending scarce public health resources on surgery. There should be some evidence that it is actually beneficial and there is not.

The largest study which attempted to demonstrate mental health benefits form gender reassignment surgery was a review of Swedish health data which attempted to measure mental health by looking at utilization of mental health services such as psychiatric visits, prescriptions and hospitalizations following suicide attempts. The study found that the mental health of patients who had surgery improved as the time after surgery past. The study was widely criticized for flaw methodology and the editors ordered a re-analysis of the data which included a control group. The re-analysis found that when patients who had undergone gender reassignment surgery were compared to a control group who did not receive surgery, there was no evidence of any improvement in mental health after surgery.

A New Definition of Health

It is difficult to evaluate whether gender reassignment surgeries qualify as medically necessary because gender medicine employs a concept of health which is diverging more and more from any other type of medicine. The divergence is being driven by transgender activists who want to avoid anything that suggests that their gender identity might be pathological or any form of psychological assessment but at the same time need a formal diagnosis to meet the legal requirements for coverage under public or private health insurance.

Most private and public health plans require a diagnosis of Gender Dysphoria as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR) of the American Psychiatric Association as a condition for coverage for hormones or surgeries. The requirements for this diagnosis for adults are:

A marked incongruence between one’s experienced/expressed gender and natal gender of at least 6 months in duration, as manifested by at least two of the following:

A.    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)

B.     A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender (or in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics)

C.     A strong desire for the primary and/or secondary sex characteristics of the other gender

D.    A strong desire to be of the other gender (or some alternative gender different from one’s designated gender)

E.     A strong desire to be treated as the other gender (or some alternative gender different from one’s designated gender)

F.      A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s designated gender)

The condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.

These diagnostic criteria are highly subjective and allow wide scope for discretion. The doctors in the Ontario case had no difficulty assigning this diagnosis to K.S. so he could qualify for treatment.  

The diagnosis of Gender Dysphoria replaced the diagnosis of Gender Identity Disorder which was in the DSM-4  because transgender activists objected that the term disorder “pathologized” their condition. But transgender activists have argued that even Gender Dysphoria is too pathologizing and WPATH SOC8 recommends that it be replaced with  the diagnosis of Gender Incongruence from the  International Statistical Classification of Diseases and Related Health Problems (ICD-11) which reads:

Gender incongruence of adolescence or adulthood: Gender Incongruence of Adolescence and Adulthood is characterised by a marked and persistent incongruence between an individual´s experienced gender and the assigned sex, which often leads to a desire to ‘transition’, in order to live and be accepted as a person of the experienced gender, through hormonal treatment, surgery or other health care services to make the individual´s body align, as much as desired and to the extent possible, with the experienced gender. The diagnosis cannot be assigned prior the onset of puberty. Gender variant behaviour and preferences alone are not a basis for assigning the diagnosis.

The new diagnosis has been moved from the chapter on “Mental and behavioural disorders” into a new chapter on  “Conditions related to sexual health.” The most significant change is the removal of any requirement that the patient experiences any form of distress or impairment.

The changes to the ICD-11 were promoted by WPATH and the World Association for Sexual Health. An article by former WPATH president Eli Coleman argued that the change “destigmatizes individuals with gender incongruence and provides a means of better access to both biomedical and psychological treatments.”  However, WPATH has no interest in psychological treatments.

Many transgender activists and therapists go beyond WPATH and reject the idea of a diagnosis entirely. They consider any form of assessment or diagnosis as “gatekeeping” and endorse an informed consent model in which the role of professionals is to help patients pursue self-determined embodiment goals. However, insurance companies still want a diagnosis so therapists have to comply.

The WPATH Files (p. 136) contains a listserv exchange between gender-affirming therapists on writing letters to insurance companies to get approval for surgery which includes this advice,

It sound like you are writing for gender care services that specify they want a diagnosis. As my writing style for letters has evolved over the years, I have made an effort not to use a diagnosis when sending information to insurance companies. And so far, I haven't been contacted and asked for a diagnosis. Instead, my letters read something like 'X meets the recommended World Professional Association for Transgender Health (WPATH) Standards of Care guidelines for the type of surgery he is pursuing.' Then I outline all of the criteria and provide information to support that the person fits the criteria.

There is an internal contradiction in the transgender activist position. On one hand, they want gender variant identities recognized as a normal and healthy variation of the human condition. On the other hand, they say that people with these normal and healthy conditions need  expensive surgeries which they want paid for at public expense.

Health Care As a Human Right

The intention of the changes to the ICD-11 was to take away the “stigma” surrounding the gender dysphoria diagnosis and recognize health care as a human right. However, labelling something as a human right does not solve the problem of how to allocate scarce health care resources. A purely market driven solution would ration all health care by ability to pay, but no advanced society considers this acceptable. A communist society which runs on the principle “From each according to his ability, to each according to his needs” still needs some method of separating needs from wants and assessing the urgency of competing needs. No communist state has found a satisfactory solution to this problem.

The welfare state compromise has been to fund medical care through some combination of public and private health insurance. Whether particular services will be paid for is determined by coverage rules in the contract of insurance or the regulations. The coverage for gender-reassignment procedures is usually justified on the basis of “equality” for transgender people under these rules, but this claim also needs to be examined.

Equality, or equity, in health care obviously does not mean everyone receives the same benefits since individuals will have widely differing needs. What it requires is that the competing needs of different individuals be assessed according to a consistent principle. In most health plans this is the test of medical necessity. A qualified medical practitioner must provide a diagnosis of a recognized medical condition that is causing distress or impairment and propose a treatment which has a reasonable prospect of relieving this condition. Purely cosmetic and experimental treatments are generally excluded on this principle.

There are many edge cases. Breast reduction is generally considered a cosmetic surgery but it may be covered by insurance if the patient has signficant health problems which cannot be remedied by other means.

The DSM-V diagnosis of gender dysphoria, with its requirement for clinically significant distress or impairment, at least attempted to fit gender reassignment procedures into a conventional medical framework. However, the new ICD-11 definition has discarded the requirement for distress or impairment and makes fulfillment of desire the basis for treatment.

The moral basis for public health plans is the belief that citizens have an obligation to provide one another with medical care to relieve serious physical and psychological distress. On the other hand, very few people believe that they have a general obligation to help others fulfill their embodiment goals or desires, particularly when these goals and desires extend to having a type of body that does not exist in nature. Personal embodiment goals and seeking “trans euphoria” or any other kind of euphoria are things that people are expected to pay for themselves.

Special health care coverage rules which provide transgender identified people with public funding for virtually any kind of body modification procedure they desire gives them not equality but a position of exceptional privilege. They have been able to obtain this position because they have been a very small group with wealthy and influential backers. This position will be harder to maintain as the demand for “non-standard” surgeries becomes more common and the nature of the procedures more extreme.