"Essential Health Care" and the Transgender Federal Prisoner

Or, what Ontario (Health Insurance Plan) v. K.S., 2024 ONSC 2061 means for trans people in the custody of the Correctional Service of Canada

By Charlotte Dalwood, Student-at-Law

Earlier this year, the Ontario Superior Court of Justice released a major decision in regards to transgender persons’ right to access comprehensive, publicly funded, gender-affirming healthcare.

One of the key takeaways from that decision is that laws that reference the World Professional Association for Transgender Health (WPATH) guidelines for trans healthcare will necessarily evolve as those guidelines do (see especially paragraph 40 of the decision). In other words: If a law incorporates the WPATH guidelines, then that law must be interpreted in light of what those WPATH guidelines say right now—not when the law was first passed.

What does this mean for the hundred-or-so “out” trans people in federal carceral institutions?

Under the Corrections and Conditional Release Act, SC 1992, c 20, at sec 86 [“the CCRA“]:

(1) The [Correctional] Service [of Canada] shall provide every inmate with

(a) essential health care; and

(b) reasonable access to non-essential health care.

(2) The provision of health care under subsection (1) shall conform to professionally accepted standards.

The Correctional Service of Canada interprets this passage via what’s called the “National Essential Health Services Framework” as well as “Commissioner's Directive 800: Health Services.“ These two documents interpret and operationalize the Service’s obligations under the CCRA to provide federal inmates with essential health care. The former includes a list of medical procedures that the Service has pre-approved for routine provision in federal institutions. The idea is that the Service will make certain things available in the absence of provincial coverage.

Now, gender-affirming care is available through provincial health care schemes. In Alberta, for example, you can apply for funding for “transition surgeries” through Alberta Health. But, as I have documented for Xtra Magazine, wait times to access these surgeries can be as long as eight years, with deadly results for some of the people on the waiting list.

Gender-affirming surgery is not part of every trans and gender-diverse person’s transition journey, of course. But there are delays even when it comes to accessing adequate hormone replacement therapy to align your body with your felt gender identity. And it’s this form of therapy that I want to focus on in this blog post.

Might the Service have a statutory obligation to ensure rapid and efficient access to gender-affirming hormone therapies?

It all comes down to how we interpret section 86(2) of the CCRA, and its requirement that health care be provided in conformity with “professionally accepted standards.”

The WPATH guidelines are, without a doubt, the current “professionally accepted standards” for the provision of healthcare to transgender and gender-diverse people. And in the current “Standards of Care,” Statement 11.3 indicates that “We recommend medical professionals charged with prescribing and monitoring hormones for [trans and gender-diverse] individuals living in institutions who need gender-affirming hormone therapy do so without undue delay and in accordance with the SOC-8.“

What does this mean?

Well, it means that the Correctional Service of Canada is obligated not to do things like remove newly incarcerated trans people from their existing hormone replacement therapy unless medically indicated; and it means that the Service is obligated to ensure already incarcerated trans people are readily able to start hormone replacement therapy when they request it.

What I’m suggesting is this: The CCRA sets a moving target for itself, namely, the WPATH guidelines. It mandates the Service conform its healthcare to that target as it currently stands, not as it might have been at the time the CCRA came into force. And the WPATH guidelines make it clear that efficiency and speed are the name of the game when it comes to providing gender-affirming healthcare to incarcerated transgender and gender-diverse people.

Anything less is a breach of the Service’s statutory duty.