Re-list Sex Reassignment Surgery Funding in Alberta

This complaint is in response to the Alberta Government announcing plans to remove Gender Reassignment Surgery - GRS (or Sex Reassignment Surgery - SRS - as it has been referred to at times) from the medical procedures funded by Alberta Health Care.  Some important information about Gender Reassignment Surgery (GRS), Gender Identity Disorder (GID), the process involved in obtaining surgery, as well as some other important relevant information:  (all of this information is important and very little of it is common knowledge) 

Gender Identity Disorder or Dysphoria is a condition where the biological gender that was assigned at birth does not match the gender identity. People with Gender Identity Disorder are more commonly known as Transsexuals.  This is a condition that is recognized in the medical community and has diagnostic criteria set out in the 4th edition of the Diagnostic and Statistical Manual for Mental Disorders (DSM IV) published in 1994.  "Wiki" explains the use of the DSM-IV as follows:

"Many mental health professionals use this book to determine and help communicate a patient's diagnosis after an evaluation; hospitals, clinics, and insurance companies also generally require a 'five axis' DSM diagnosis of all the patients treated."1                                                                          

Gender Identity Disorder is recognized by the American Psychiatrist Association, the American Medical Association, the Canadian counterparts to those organizations, and the Alberta Government also recognized the validity of the disorder and the need to provide treatment by virtue of the fact they have funded treatment for 10 years and as well have agreed that it is necessary medical procedure.

While the cause of this disorder is not fully known, it is generally believed by the medical community that the cause is rooted in biology as well as in genetics.  There has been recent promising work in indentifying a biological cause for the diagnoses of gender identity disorder, and gender dysphoria.

Patients suffering from Gender Identity Disorder can experience many high risk symptoms ranging from severe depression, self-mutilation, suicide, social withdrawal, and anger management issues just to name a few.  This condition also has been found to contribute to drug use, prostitution, social persecution, discrimination at work, legal concerns with legal gender and gender representation not being congruent (using a washroom of the gender you identify that does not match your identification), marital problems, and has been proven to present a real physical threat due to public backlash.  There is a yearly International Day of Remembrance to recognize those who suffer from gender identity disorder/gender dysphoria and have died as a result of that condition, whether by their own hand of the actions of another.

Patients who suffer from Gender Identity Disorder generally are aware of their condition in pre-school years.  Many of our earliest memories are of gender conflict issues.  It is common for those with GID to attempt to suppress or ignore their condition due to lack of social acceptance and the desire for there to be "any other solution".  Patients who seek treatment and subsequently transition to living as the gender they identify with do so because they have no other choice.  In many cases the act of commencing the long process of transition results in a large weight being removed from them.  Personally I have had many people who I have told about my condition and wish me the best for the rocky road ahead, and while they have been correct as the path of transition is not an easy path and is covered with boulders, it is far easier than the path I have walked on for the first 3 decades of my life.  And it is a harder road for most who are diagnosed. This sentiment is shared among many with gender identity disorder and gender Dysphoria .

At least 50% of gender identity disorder sufferers have at least one suicide attempt before they turn 18.  Tragically, many of those attempts are successful.  My information is that suicide rates among pre-operative transsexuals is three times the national average.  Of those who have had surgery, the suicide rate is significantly lower than the national average but at the same time there are those that go unrecorded.

WPATH is an international organization that sets out the standards governing the treatment of those with GID.  Those Standards of Care (SoC) are published in a document that can be found online through their website www.wpath.org.  Navigating that website you can find a pdf file of the SoC.  The direct address of that file is http://wpath.org/Documents2/socv6.pdf

A person suffering from GID generally starts with personal acceptance of their condition combined with disclosure to a trusted medical professional or another supportive person.  In Alberta there two GID specialists, Dr. Warneke and Dr. Brooks (who will be retiring), whom Alberta Health Care will pay for the treatment.  The waitlist to get a first visit to see them was last pegged at 18-24 months long.  During this wait period many start the long process of transitioning to the gender they identify as.  While the transition process is highly dependent on personal needs, goals, finances, as well as whether the transition is from male to female or female to male, there are some common themes.  Permanent facial hair removal and voice lessons to alter your voice are two elements prevalent in the male to female process that can take several years to complete.  Many also seek private therapy at their own expense to help them in the transition process, and for some the transition process can be very costly, even before the surgery and the use of hormone replacement therapy. 

Hormone Replacement Therapy (HRT) is a large component of the treatment process.  In accordance with the SoC, in order to begin hormone therapy you must meet the Eligibility criteria as follows

1.    Minimum age of 18 years;

2.    Demonstrable knowledge of what hormones medically can and cannot do and their social benefits and risks;

3.    Either:

%uFFFD       a. A documented real-life experience of at least three months prior to the administration of hormones; or

%uFFFD       b. A period of psychotherapy of a duration specified by the mental health professional after the initial evaluation (usually a minimum of three months).

The patient must also meet the Readiness criteria -

1.    The patient has had further consolidation of gender identity during the real-life experience or psychotherapy;

2.    The patient has made some progress in mastering other identified problems leading to improving or continuing stable mental health (this implies satisfactory control of problems such as sociopathy, substance abuse, psychosis and suicide;

3.    The patient is likely to take hormones in a responsible manner.

Hormone Replacement Therapy can produce many changes depending on your biology.

"Biologic males treated with estrogen can realistically expect treatment to result in: breast growth, some redistribution of body fat to approximate a female body habitus, decreased upper body strength, softening of skin, decrease in body hair, slowing or stopping the loss of scalp hair, decreased fertility and testicular size, and less frequent, less firm erections. Most of these changes are reversible, although breast enlargement will not completely be reversed after the use of hormone replacement therapy.

Biological females treated with testosterone can expect the following permanent changes: a deepening of the voice, clitoral enlargement, mild breast atrophy, increased facial and body hair and male pattern baldness. Reversible changes include increased upper body strength, weight gain, increased social and sexual interest and arousability, and decreased hip fat."2                                             

Pre-operative transsexuals receive a much higher dosage of hormone therapy because of the need to suppress the body's natural hormone production.  The risks involved with this therapy for male to female transsexuals include increased propensity to blood clotting (venous thrombosis with a risk of fatal pulmonary embolism), development of benign pituitary prolactinomas, infertility, weight gain, emotional liability, liver disease, gallstone formation, somnolence, hypertension, and diabetes mellitus. For female to male transsexuals the risks include infertility, acne, emotional liability, increases in sexual desire, shift of lipid profiles to male patterns which increase the risk of cardiovascular disease, and the potential to develop benign and malignant liver tumors and hepatic dysfunction.  It is generally but highly recommended to have gender reassignment surgery within 3 years in order to minimize the risk factors. 

In situations where surgery cannot be obtained within 3 years, alterations to the hormone therapy are generally advised, although this presents significant problems for the patient.  Breast growth for male to females, deepening of voice and clitoral enlargement for female to males are permanent changes.  Stopping hormone therapy would reverse some changes but not all changes.  Our ability to present ourselves as either sex would be compromised. Trans-women would regain upper body strength, and fat distribution would revert making them appear very manly, however due to breast growth, they would not have the ability to revert to a "male" appearance without surgery.  Trans-men would have the hips and thighs of women, but the facial hair and voice of men.  Failure to meet accepted norms of gender presentation can present a Clear and Present Danger to the individual transsexual when undertaking common daily routines and behaviors. As well as limiting use of certain facilities, socializing, relationships, and can cause severe emotional and mental instability, or worse -- suicide/death.

Gender Reassignment Surgery is an accepted, medically necessary, surgery that has had a long history of drastically improving the quality of life of the recipients and aiding in the treatment.  Patients in Alberta are generally referred to the gender clinic in Montreal.  Dr. Brassard is recognized as one of the top surgeons in the world with regards to GRS. 

"Sex Reassignment is Effective and Medically Indicated in Severe GID. In persons diagnosed with transsexualism or profound GID, sex reassignment surgery, along with hormone therapy and real-life experience, is a treatment that has proven to be effective. Such a therapeutic regimen, when prescribed or recommended by qualified practitioners, is medically indicated and medically necessary. Sex reassignment is not "experimental," "investigational," "elective," "cosmetic," or optional in any meaningful sense. It constitutes very effective and appropriate treatment for transsexualism or profound GID."3                                 

As with any medical procedure, criteria must be met before surgery can be performed.  This is NOT AN ELECTIVE procedure.  A patient CANNOT request this surgery on demand.  The criteria for surgery are international standards.

"Eligibility Criteria: These minimum eligibility criteria for various genital surgeries equally apply to biologic males and females seeking genital reconstructive surgery. They are:

1. Legal age of majority in the patient's nation;

2. Usually 12 months of continuous hormonal therapy for those without a medical contraindication (see below, "Can Surgery Be Performed without Hormones and the Real-life Experience");

3. 12 months of successful continuous full time real-life experience. Periods of returning to the original gender may indicate ambivalence about proceeding and generally should not be used to fulfill this criterion;

4. If required by the mental health professional, regular responsible participation in psychotherapy throughout the real-life experience at a frequency determined jointly by the patient and the mental health professional. Psychotherapy per se is not an absolute eligibility criterion for surgery;

5. Demonstrable knowledge of the cost, required lengths of hospitalizations, likely complications, and post surgical rehabilitation and requirements of various surgical approaches;

6. Awareness of different competent surgeons." 

In Alberta these standards must be met, and in order to receive funding for proper treatment and MUST must proceed through either Dr. Werneke or Dr. Brookes, despite there being other qualified professionals within the province of Alberta and that meet the WPATHs%u2019 Standards of Care for proper treatment.

The Government of Alberta through the Hon. Ronald Liepert has stated that they do not debate the validity of the surgery as a medically essential service, but that this is simply a budgetary decision. But most do not believe the government on this issue. 

There has been a tremendous amount of information supplied so far so I would like to summarize this into a theoretical timeline for treatment that results in surgery.  This timeline is based on the pre-existing model supplied by the Government of Alberta for obtaining care through Alberta Health Care.

%uFFFD       D-Day.  This is the day the medical community gets involved with treatment.  For simplicity sake we will make this be the day the patients name is added to the waitlist for Dr. Warneke or Dr. Brooks.

%uFFFD       D-Day 21 Months.  First Visit to Dr. Warneke or Dr. Brooks.  Assuming no steps have been taken outside of Alberta Health Care, this is the first time receiving any qualified medical advice.  Let's suppose that the patient is currently living as their identified gender full time.

%uFFFD       D-Day 27 Months.  Second Visit.  Due to the number of patients being seen, there is generally a 6 month period in between visits.  Hormone Therapy can now commence.

%uFFFD       D-Day 33 Months.  Third Visit.  Theoretically it is possible to receive approval for surgery at this time.  Common sense dictates that at least one problem has come up preventing that at this time.

%uFFFD       D-Day 39 Months.  Fourth Visit.  Approval for surgery is given; application is made for funding from Alberta Health Care.

%uFFFD       D-Day 42 Months. Funding approval obtained by Alberta Health Care.  Surgery can now be scheduled.

%uFFFD       D-Day 48 Months.  Surgery is performed funded by Alberta Health Care.

%uFFFD       Note: Time is not absolute. There have been cases where it has been sped up due to other extenuating circumstances.

Once the process it started, with current wait list times, it will be approximately 2-4 years before surgery can be obtained.  In 2008 16 surgeries were funded, although additional patients were postponed due to budgetary concerns.  Adding time spent waiting for funding; it is not unreasonable for 5 years to pass before receiving the care that is needed.  While it is possible to shorten this time line, it involves paying for qualified private care that is readily available.  Due to the chronic underemployment suffered by transsexuals and the extremely high costs involved with non-medical aspects of their transition.  Private care is simply not an option for most.

November 28, 2006 the HRT of Ontario ruled in favor of Hogan, Stonehouse and McDonald, ordering the Government of Ontario to fund their surgeries due to them being involved in the process of obtaining there surgery before the procedure was de-listed.  It is interesting to note that the Ontario Government relisted GRS as a funded procedure on in May 2008.  I am aware that these ruling are not binding in Alberta, but they do have value.

Paragraph [9] and [10] of that decision state

"[9] The majority finds that the services Ontario proffered with respect to SRS prior to the delisting of said services in October 1998, constitute services within the purview of section 1 of the Code. 

[10] Ms Hogan%u2019s, Ms Stonehouse%u2019s, and AB%u2019s right to equal treatment with respect to services, without discrimination because of disability or sex, has been infringed by Ontario. Mr. McDonald%u2019s right to equal treatment with respect to services, without discrimination because of disability or sex, has not been infringed by Ontario. "

Both the area of the discrimination and the grounds of discrimination are clear and valid.

Paragraph [120] clear states that anyone involved in the treatment process needs to be considered by the Ontario Government with respect on the denial of funding.

"[120] The majority sees a stark difference between these Complainants and any other group or individual who is no longer entitled to a service because the government has delisted it. The nature of these Complainants%u2019 disability and treatment, and the special arrangement for this benefit between Ontario and the CAMH put them in unique circumstances. They had been engaged in the transition/treatment programmed proffered by Ontario as an insured benefit, when half-way up the %u201Cflagpole%u201D, Ontario made a general bona fide imperative to make deep cuts to health care system. To iterate, that general rule to delist SRS as insured benefits had an adverse impact on these Complainants. Their reasonable %u201Clegitimate expectation%u201D does not create a substantive right to the services, but it underscores the adverse impact on the three Complainants. To reiterate, while Ontario has the right to discontinue services in the balancing of competing interests in distributing its sparse and finite resources, it has a statutory obligation to accommodate these Complainants who are adversely affected by the exercise of its power. The degree of accommodation must be commensurate with the nature of the service in all the circumstances. The majority is satisfied that Ontario tried to accommodate them by inserting the grandparent provision, but it failed to include the fact that the transition or treatment takes from two to over six years. As a result, the accommodation was inadequate. The majority turns its attention to deciding whether the Complainants were discriminated against because of sex. "

I am sure there are many more applicable paragraphs of noteworthy value within this document, I am not a lawyer and do not have the ability to analyze 164 pages that compromise the full decision.

The Alberta Government requires that Gender Reassignment Surgery be performed in order to change the gender marker on government issued identification.  As a citizen of Alberta, I and many others are required to have on me a personal Government Issued Identification to perform many common tasks.  This ID has a name and picture that is in clear opposition to the gender marker on the same id.  This puts us at extremely HIGH risk of discrimination, possibly violent, should the wrong person see that identification.  While this was fully known to me prior to commencing the transition process and changing the name and ID to reflect my gender identity, it was done so with the knowledge that risk was a temporary, finite risk due to the fact that after surgery, the gender marker would be changed and a normal life could be lead.  The withdrawal of funding in the middle of this process exponentially increases the risk to all transgendered people%u2019s personal safety and the ability to be fully accepted as the identified and desired gender within society.

Enclosed is the letters of those who are either in transistion or have completed transition and their statements on how it has affected their lives and how de-listing and removing the funding will cause much turmoil, depressed and mental anguish.

1.    http://en.wikipedia.org/wiki/Diagnostic_and_Statistical_Manual_of_Mental_Disorders

2.    Standards of Care http://wpath.org/Documents2/socv6.pdf

3.    Standards of Care
http://wpath.org/Documents2/socv6.pdf

When  reading bits and pieces of the 2006 HRTO 32 Decision over the last several days , there are several points that are made abundantly clear. 

Medical Necessity

While hearing about the medical necessity of the surgery was helpful in understanding the overall situation, whether or not the surgery was medically necessary had no bearing on the decision and that is clearly stated in paragraphs [6],  Of the HRTO decision.

While the medical necessity of the surgery is a very important fact to us, it has no %u201Cdirect%u201D relevance to our case.  The debate on whether or not the GRS should be included in the list of funded procedures is not this fight.  The Human Rights Commission has absolutely no power or authority to control how the government legally exercises its responsibility to allocate the finite resources of a province in budgetary manners.  The only way to proceed in this manner is to challenge the Canada Health Act to include GRS under the required procedures.  That is an avenue that is at least possible in a legal sense.  The Alberta Government is not in contradiction of the Canada Health Act, they have full discretionary authority to provide, or not provide, services that are not specified under the Canada Health Act as they see fit. Although it should be noted that in some cases it can be deemed medically necessary if the patient%u2019s life is in jeopardy and that living in a gender considered foreign to the patient will cause the loss of life OR should be noted that it can be medically necessary if the patient will experience complications or negative health complications resulting in possible death.

Expert Testimony

In paragraph [17] they state that the testimony they received through expert witnesses was informative and interesting, but it has no bearing on the decision.

The Government is not, and likely will not, make their case based around challenging established medical facts.  They may be the 'Right" but they are not Bush and cannot deny science.

What Are We Left With Then?

The whole justification behind the Ontario decision was the manner in which Ontario de-listed the procedure, namely the in-adequateness of the grandfather clause.  Three of the four complainants started their treatment process with the "legitimate expectation" of surgery being funded.  And while that legitimate expectation does not translate into a right to funding, the Government has a responsibility to ensure the execution of it's various responsibilities does not compromise the dignity and integrity of it's citizens.  This is where our fight is.  Those of us who have started the process to be treated under the schema provided by the Alberta Government have to be considered if the Government de-lists the procedure.

While this may seem selfish to not fight the bigger fight to get the surgery re-listed for all, winning individual fights to funding puts political pressure on them to choose to re-list.  We must largely ignore the bigger fight when proceeding with this.

So Who Represents Us?

There are 2 possibilities. The decision to proceed with multiple defendants can be the Human Rights Commission or legal action taken by representation.  The  "joining of cases" can happen at any step of the procedure, and with the Human Rights Panel, and it will be done by the Commission to have "proportional representation."  As was done in Ontario, the Commission will want to select cases that are representative of the various steps in transition.  The real question that will need to be decided by them is where the cut-off line is.  What is the qualifying criteria that dictates whether they get grandfathered in or not.  This is why we need to have people from every step in the process filed complaints. As for legal involvement the support of joint cases by representation of an individual is a more arduous and can be a costly manner. Although it can be effective it is an option to filing complaints. Having legal counsel to act on the behalf of those who may lose financially because of the de-listing can help when presenting the case to the Human Rights Commission.

Putting Our Best Foot Forward

This situation is significantly different then the Ontario action in that we are standing on their shoulders, using their precedent, we can focus our attention on the items that are relevant and not worry about the expense involved with expert testimony and the like.  While those who want a lawyer to represent them can certainly do so and some have already become that process, we are also not arguing the interpretation of the Human Rights Act; we are simply using established interpretations of another provinces act.  While the HRC is supposed to be an unbiased body, they are hugely biased towards the complainants by their very nature.  Even though the involvement of legal counsel may not be necessary at this point it wil