Posted By Florence Paré
In last week’s segment, I explored the various extra-legal barriers to accessing hormone replacement therapy for trans individuals, for whom hormones are an essential part of their psychological and physical well-being. The discretion held by the provincial government over insurance coverage of prescription drugs also poses a significant risk to access to hormones, as there is a concern that the government will decide to delist hormones from provincial insurance coverage.
The potential delisting of hormones from insurance coverage is a recurrent fear in trans communities. At the political level, this seems unlikely, as trans rights have entered the progressive collective consciousness and cannot be openly opposed by governments who wish to appear progressive. Furthermore, insurance coverage for medication is largely done on a per-medicament basis, rather than based on the reason for the prescription, and drugs used in hormone replacement therapy are frequently used for other purposes, such as treating polycystic ovary syndrome or hypogonadism, both fairly common illnesses.
Delisting hormone treatments could arguably be contrary to the Canadian Charter of Rights and Freedoms and to the Québec Charter of Human Rights and Freedoms, CQLR c. C-12. The Canadian Charter prohibits discrimination on the basis of sex at section 15. Human rights tribunals across Canada have long held that the term “sex” in human rights acts includes transgender persons, and would otherwise almost certainly be protected as an analogous ground of discrimination (Andrews v. Law Society of British Columbia,  1 SCR 143).
In Québec (whereas in the past trans persons have been protected from discrimination under the basis of “civil status”, “disability”, or “sex”) gender identity and expression are explicitly included in the Charter‘s section 10 as of June 10th, 2016.
The potential delisting of hormones from insurance coverage is a recurrent fear in trans communities.
The delisting could also be challenged through judicial review of administrative action. A serious argument can be made under either Charter, most notably pursuant to the Canadian Charter which includes a proportionality criterion (Loyola High School v. Quebec (Attorney General), 2015 SCC 12,  1 SCR 613 at paras. 38, 40): a slight cost reduction compared with the totality of Public Drug Insurance expenditures is hardly proportional to the lives and well-being of trans people, given that trans people account for less than 0.6% of the total population, and not all trans people wish to take hormones. The Supreme Court of Canada’s decision in Eldridge v. British Columbia (Attorney General),  3 S.C.R. 624 also supports this argument.
Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32, 58 CHRR 317 shows how uncertain guarantees under the Canadian Charter and Québec Charter can be with regards to trans healthcare. While the delisting of genital reassignment surgery in Ontario was found to be prima facie discriminatory, and would likely also have been found discriminatory under the Canadian Charter, it was saved by the bona fide justification analysis.
We are here confronted not with clearly invalid potential regulations, but potential regulations which only may be invalid despite being imminently immoral. As for Hogan itself, I do not believe that it correctly applied the law. Despite the strong legal arguments that can be levied against delisting, Hogan shows a very real risk that any regulations delisting trans healthcare will be upheld as valid by the Courts, a risk that should not exist given the unnecessary anxiety it causes and the moral landscape of hormone replacement therapy in relation to trans well-being.
Ensuring access to hormone replacement therapy is a difficult and multifaceted task, and if improperly handled provides a fertile soil for the exacerbation of trans people’s vulnerabilities. On the legal plane, trans issues surrounding hormone therapy show the limitations of human rights law both in supervising the decisions of governments and private actors who may too easily bestow help on the least vulnerable of the vulnerable, instead of the most vulnerable of the vulnerable, and in addressing broader systemic issues arising from the interrelations between various public and private bodies. In the end, we can only hope that the government takes seriously the words of the Supreme Court of Canada in Eldridge: once the state provides a benefit, it is obliged to do so in a non-discriminatory manner.