[QUOTE=Canadian Human Rights Tribunal ]
[187] Assuming that an inmate meets the eligibility requirements for sex reassignment surgery, and obtains the necessary approvals to proceed with such surgery, the question remains as to who will pay for it. As noted previously, sex reassignment surgery is a legitimate medical treatment for a recognized medical condition. It should be treated like any other medical procedure, for the purposes of CSC’s Health Services policy.
[188] Under the policy, essential medical services are paid for by CSC, whereas elective procedures are paid for by the inmate. Dr. Dickey, Dr. Hucker and Ms. Petersen all testified that sex reassignment surgery is an elective procedure, within the meaning of CSC’s policy. Although Dr. Watson did not address the issue directly, her description of the distress suffered by those she describes as having ‘high intensity’ Gender Identity Disorder certainly suggests that there are those for whom sex reassignment surgery might well be essential for their well-being.
[189] We have some concerns about Dr. Dickey’s testimony in this regard. Dr. Dickey was very concerned about public monies possibly being expended to provide surgery to inmates, when law-abiding citizens in the community at large may be unable to access surgery at public expense. With the greatest of respect, this appears to be a moral judgment, and not a medical one. Although Dr. Dickey was clearly a knowledgeable witness, we were left with the impression that his concern with respect to the funding issue may have influenced his characterization of sex reassignment surgery as a non-essential procedure.
[190] We have no such concerns with respect to the testimony of Dr. Hucker and Ms. Petersen. Nevertheless, we are concerned about their categorical assertion that sex reassignment surgery was not [and presumably could never be] an essential medical service, in light of the clear statement to the contrary in the Harry Benjamin Standard. It is apparent that different individuals experience varying degrees of distress in relation to their Transsexualism. It may very well be that there are some individuals for whom sex reassignment surgery is an essential procedure, and others for whom it is elective. It seems to us that this is a determination best made, on a case by case basis, by the physicians from a recognized Gender Identity Disorder Clinic, who are supervising the inmate’s transition, and are familiar with his or her situation.
…Snip…
C. Conclusion on Liability
[192] We have found that CSC’s policy with respect to the placement of pre-operative transsexual inmates has a discriminatory effect on transsexual inmates. While we agree with CSC that pre-operative transsexuals should not be placed in target gender facilities, CSC has failed to establish that it cannot not accommodate persons with the characteristics of the complainant, within the male prison population, without incurring undue hardship.
[193] We have also found that CSC’s blanket prohibition on sex reassignment surgery has a discriminatory effect on transsexual inmates because of their sex and their disability, and that CSC has been unable to justify such a blanket policy.
[194] For these reasons, Ms. Kavanagh’s complaints are sustained.
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The full case
Pertinent details regarding the decision are toward the bottom.
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