A transsexual B.C. 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.
This Canadian tribunal decision is available
at www.bchrt.bc.ca
- Friday 18 April 2003
