BC transwoman scores minor human rights victory against Ministry of Health

A BC transgender woman has won the first round of a Human Rights Tribunal dispute against the Ministry of Health arguing the hurdles she faced trying to see a specialist wouldn't have happened to a person born a woman.

The case involves a transgender woman who tried to get out-of-country funding for a gender-affirming surgery which wasn't available in Canada at the time. The funding was contingent on the backing of a BC specialist in gender reassignment surgery.

According to a May 10 BC Human Rights Tribunal decision, KW — as she is referred to in the document — argued there were no such specialists in BC at the time so she couldn't get the support from one to complete the application for out-of-country funding.

KW argued that those born women didn't have this issue because if they sought funding for the same out-of-country procedure, which does happen in rare cases, they could go to a specialist such as a gynaecologist and complete the application.

The Ministry of Health applied to the BC Human Rights Tribunal to have the case dismissed.

However, the Tribunal rejected the move saying that if the Ministry of Health's policy or practice adversely impacts a certain group, it could be discriminatory.

The decision says in 2017 KW was approved funding through BC's Medical Services Plan for a gender-affirming surgery procedure in Montreal.

However, KW said the surgery available in Montreal was not the most appropriate for her particular circumstances and she attempted to apply for the overseas funding to have the procedure in Thailand.

The decision says Ontario and Saskatchewan offer their residents in the same position to have the surgery in Thailand.

However, KW's issue occurred when she attempted to find an "appropriate specialist" to support her application.

As no such specialist existed in BC at the time KW got a doctor in Thailand to fill in her application. The Ministry of Health said it needed to be filled in by a BC specialist and told her it had put the application on hold.

KW got her family doctor to write to the Ministry of Health asking it to provide contact information for a specialist who could support the application. There is no mention in the decision that it ever answered the question.

When KW asked the Ministry of Health herself for the name of a specialist it told her it couldn't provide that information.

Eventually, KW had her surgery in Montreal.

The Ministry of Health argues it didn't discriminate against KW because it didn't deny her application as it wasn't completed so therefore it couldn't process it.

The Tribunal points out the Ministry of Health's argument doesn't address the key matter in the case which is that the Ministry's own process set up roadblocks for transwomen that those born women wouldn't face.

Ultimately, the Tribunal dismissed the Ministry of Health's request to throw the case out, allowing for the matter to continue to a hearing.

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