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The Law, Psychiatry and Pathologization of Gender-Confirming Surgery for Transgender Ontarians

Windsor Review of Legal and Social Issues, (2017) 38 Windsor Rev Legal Soc Issues 20

18 Pages Posted: 6 Aug 2016 Last revised: 10 May 2017

Matthew P. Ponsford

McGill University - Faculty of Law

Date Written: May 1, 2017

Abstract

As of 2016, gender identity and expression is a legally protected ground in human rights legislation passed in Alberta, Newfoundland and Labrador, Nova Scotia, Ontario, and Prince Edward Island, while gender identity is statutorily protected in Manitoba, Saskatchewan, and the Northwest Territories. This study examines the diagnostic categories of gender dysphoria in the DSM-5 and transsexualism in the ICD-10, and the continuing stigmatization associated with labeling gender identities and expressions as pathological. The Ontario Human Rights Code and Health Insurance Act (HIA) are examined. Toronto’s Centre for Addiction and Mental Health (CAMH) remains the sole option for transgender Ontarians seeking approval for gender-confirming surgery (GCS). The wait time is currently two years. In February 2015, the Health Minister of Ontario promised to amend the HIA to enable other health professionals to approve surgery referrals, yet Ontarians continue experiencing access delays. This paper explores institutionalized discrimination in two interrelated contexts: (1) inadequate rights to legal documentation (e.g. provincial birth certificates and federal passports) for trans persons and (2) insufficient access to GCS referrals and procedures. This paper examines the intersection among psychiatric assessment, the pathologization of trans persons, and the legal regulation of access to care. Statutorily prescribed rights of transgender Ontarians are examined through select jurisprudence, expert commentary, and one case study, helping to elucidate the complex issue of chronic underfunding of healthcare services for the trans community. The paper concludes that government service providers and institutions fail to protect and serve transgender Ontarians.

Keywords: Sex Reassignment Surgery, Gender Confirming Surgery, Ontario, Canada, Transgender, Human Rights, DSM-5, ICD, Sexuality Studies, Gender Studies, Mental Health, Gender Identity, Gender Expression, Discrimination, Health Insurance, Health Policy, Gender Dysphoria, Stigmatization

Suggested Citation

Ponsford, Matthew P., The Law, Psychiatry and Pathologization of Gender-Confirming Surgery for Transgender Ontarians (May 1, 2017). Windsor Review of Legal and Social Issues, (2017) 38 Windsor Rev Legal Soc Issues 20. Available at SSRN: https://ssrn.com/abstract=2818892

Matthew P. Ponsford (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montréal, Québec H3A 1W9
Canada

HOME PAGE: http://matthewponsford.ca

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