British Columbia Must Pay for Sex Change Surgery

Human rights tribunal says transsexual discriminated against

[BRITISH COLUMBIA] - A transsexual British Columbia man is pleased that the B.C. Human Rights Tribunal has found the provincial government discriminated against him by refusing to pay the cost of completing his gender-reassignment surgery.

Tribunal member Judy Parrack ordered the health services ministry to pay almost $30,000 for previous operations done in California, plus the cost of completing the surgery and $6,500 compensation for injury to the dignity of the complainant, Louis Waters.

Waters, 44, is a female-to-male transsexual who lives outside the Vancouver area with his wife and two adopted children. He is self-employed and has lived as a man since the early 1980s.

He estimates it will cost $93,028 Cdn -- in addition to the $30,000 the government has already been ordered to pay -- to complete his gender-reassignment surgery in California. Female-to-male surgery is not performed in B.C.

The cost to be paid by government for the final stage of surgery is to be negotiated, Waters' Vancouver lawyer Allan McDonell said Thursday.

"He's very pleased," the lawyer said of his client, who declined an interview request. "He's actually spent more than $100,000 Canadian so far." That includes flights to and from California, drugs, operations and post-operative care in California.

McDonell said his client wanted to remain anonymous, but Waters filed his complaint to get proper compensation and hoped to set a precedent for other people seeking to have female-to-male surgery.

"He didn't want anyone else to go through what he's gone through," McDonell said.

Waters and his wife had to borrow heavily to pay for the first- and second-stage operations, he added. Waters wasn't able to complete the surgery because he couldn't afford it.

He testified at the tribunal that once he started the process of gender reassignment, he realized there was "no going back" but never thought he would be left without a penis.

After participating in the required gender identity clinic program at the Clarke Institute of Psychiatry in Toronto, he was approved for gender-reassignment surgery, which involves a number of steps, including phalloplasty -- the creation of a penis by plastic surgery.

He went to California for the first and second stages of surgery, but the B.C. health ministry would only pay the physicians' fees at the rate as if the surgery had been performed in B.C., which was substantially less than the amount Waters paid.

Waters filed his complaint to the tribunal in 1997, alleging that the B.C. Medical Services Plan discriminated against him and denied him a service or facility customarily available to the public because of his sex and sexual orientation, which contravened Section 8 of the Human Rights Code.

The tribunal found there was discrimination and ordered the health ministry to pay Waters $29,749.21 Cdn for medical services already received, $644 Cdn a day for the days Waters was at the Recovery Inn in California, $1,000 for legal expenses incurred as a result of the contravention and $6,500 for compensation for injury to Waters' dignity.

The government is reviewing the decision before deciding whether to appeal, said Tara Wilson, a public affairs officer with the ministry of health services.

The tribunal was told that B.C. provides coverage for male-to-female reassignment surgery, but considers phalloplasty to be experimental surgery and does not provide coverage for female-to-male surgery not performed in B.C.

This is not the case in Alberta, which provides coverage for phalloplasty ($24,740), penile implant ($8,095) and testicular implants ($2,845).

Most provinces across Canada do not provide coverage for phalloplasty, although Quebec provides coverage in exceptional circumstances approved by the minister of health, and Newfoundland provides coverage on an individual approval basis if a candidate is assessed and recommended by the Clarke Institute.

The tribunal heard evidence that Waters had a difficult childhood and adolescence, including depression and two suicide attempts, one after he moved to B.C. in his late teens.

Since he reported being uncomfortable with his body, doctors recommended reduction mammoplasty, which he had in Victoria in 1981, paid for by MSP.

But the surgery didn't help, Waters testified. He felt he was a man, so he began living, dressing and working as a man.

He changed his name in July 1985. In March 1988, he was issued a new birth certificate reflecting his sex as male. On June 18 of that year, he married.

When Waters was told that no surgeons were doing phalloplasty in B.C., he began looking in other provinces. Unable to find anyone doing the surgery in Canada, he contacted a California surgeon, who provided a quote of $47,000 US for the required surgeries, provided were no complications.

He submitted the quote to MSP, which said in a March 1, 1995 letter that it would pay an estimated $2,998.

After consulting the California surgeon in July 1995, Waters received further, higher estimates, due to complications: $29,200 US for the first stage of phalloplasty and $37,650 US for the second stage.

In September 1995, Waters had the first-stage surgery and testicular implants in California.

When Waters returned to Canada, his lawyer wrote to MSP seeking reimbursement of $41,563 Cdn in medical expenses, which was only a portion of what Waters had paid.

On Feb. 12, 1997, MSP said it would only pay for physician services up to B.C. rates. Waters said the restriction to medical services being paid at B.C. rates did not apply to him because phalloplasty was not being done in B.C., so he filed his human rights complaint.

The tribunal decision is available on the Internet Web site: bchrt.bc.ca