Saved By Delatestryl: The Importance of Accessible Hormone Replacement Therapy (Part 2)

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.

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Many trans Canadians choose hormone replacement therapy to help manage dysphoria. Given the disproportionate financial disadvantages trans Canadians face, delisting hormones would further threaten their safety and well-being. || (Source: Susan Bein // wizmosis)

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, [1989] 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, [2015] 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), [1997] 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.

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Trans rights groups have long battled for the human rights protections now entrenched in Canadian law. Governments have a duty to stand by these protections, including access to healthcare. || (Source: Wikimedia Commons)

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.

Saved By Delatestryl: The Importance of Accessible Hormone Replacement Therapy (Part 1)

Posted By Florence Paré

Every time I looked in a mirror, I saw someone else. I was what I was not. But unlike Lindsay Lohan in Freaky Friday, I had no one else to be. It was not until I had taken estrogen and anti-androgens for a few months that my face started changing and I started recognising myself in the mirror. To this day, it varies: on worse days, I feel the dread of self-misrecognition. On better days, I am relieved to see myself as I am. Well-being is unavoidably hampered if you cannot ever feel at home anywhere. Through our bodies, our consciousness is embodied. People typically feel at home in their body, but for many of us it does not feel like home.

Far from being a caprice, hormone replacement therapy, for those of us who wish to receive it, is often a lifesaver. Amongst trans people who have considered medical transition, those on hormone replacement therapy were about half as likely to have seriously considered suicide in the last year. In total, around 35% of all trans people have seriously considered suicide in the last year. Of those who desired to medically transition but had not begun hormone replacement therapy, 53% have seriously considered suicide in the last year.

To this day, it varies: on worse days, I feel the dread of self-misrecognition. On better days, I am relieved to see myself as I am.

Apart from alleviating dysphoria by creating changes in our body which we desire as ends in themselves, those changes also participate in our well-being because of their relationship with what we call “passing as cisgender”.

A person is cisgender if they are of the same gender as they were assigned at their birth; in other words, a person who is not transgender. Someone is said to pass as cisgender if they are read as cisgender. For example, if someone were to believe that I am a cisgender woman rather than a trans woman, I would be said to pass as a cisgender woman. Passing is not a yes or no feature: people may pass in some contexts and not in others, and may pass or not in the same contexts at different times or to different people. Not every trans person wishes to pass, nor can everyone pass; non-binary people cannot pass as cisgender as there are no cisgender non-binary people, and some people’s anatomy puts passing out of reach.

By changing a person’s appearance, hormones help trans people to pass as cisgender. This can alleviate some of the difficulties trans people face: it curtails misgendering, can reduce social anxiety, and decreases the number of opportunities for transphobic violence, discrimination, and harassment. Insurance coverage for hormone replacement therapy across Canada varies by province. My considerations will focus on the situation in the province of Québec, as it is the jurisdiction I am most familiar with. However, many of my comments will also apply to other provinces.

Passing is not a yes or no feature: people may pass in some contexts and not in others, and may pass or not in the same contexts at different times or to different people.

In Québec, hormone replacement therapy is covered under the basic plan established by An Act Respecting Drug Insurance, C.Q.L.R. c. A-29.01. The person is covered either through a private insurer or, if ineligible for private coverage, through the RAMQ’s Prescription Drug Insurance. Under the Act, the person’s coverage through a private insurer must be at least equivalent to the basic plan coverage. Thus, in Québec, hormone replacement therapy is, in theory, covered by insurance. In my case, I am lucky to have a private plan which covers the totality of my hormone replacement therapy costs.

Even when hormone replacement therapy is covered by insurance, other factors work to limit its access by trans people. First, it can often be difficult to obtain a prescription. Only a handful of doctors prescribe hormones on an informed consent basis, meaning without a letter from a psychologist. The waitlist to see those doctors (there seem to be around four in all of Montreal, based on anecdotal evidence) is often between six months to a year, and to this is added the weeks to months it takes between the first consultation and the writing of the prescription.

In the case of doctors who follow the World Professional Association for Transgender Health (WPATH) standards (who can also be fairly difficult to find), the individual must find a therapist ready to write a letter of referral. Those therapists are too few (though not as few as doctors prescribing hormones on an informed consent basis), have long waitlists, and often charge a substantial sum of money for consultations. Those costs can be prohibitive given the prevalence of poverty within the trans community. Trans individuals are more than four times as likely as the general population to have a household income of under $10,000 per year; 15% of trans people live under that household income, and 27% of trans people report a household income below $20,000 per year, a situation that is even worse amongst trans people of colour and trans people living with disabilities.

Depo-Photo-1024x500In addition to global hormone shortages, the prohibitive costs involved in seeking hormone replacement therapy threaten to deny access to trans Canadians who choose this treatment. || (Source: Teen Health Source)

Under An Act Respecting Drug Insurance, a coinsurance payment of 34% of the cost of the drug can be asked of trans people filling their prescription, up to a yearly total of $1,029 (sections 11, 13, and 27). Although in exceptional situations the coinsurance payment can be waived, coinsurance payments are the norm, and can be prohibitive to trans people in precarious economic situations. On the other hand, private plans which are frequently unavailable to less privileged trans people regularly cover the complete costs of hormones.

Many trans people fear that hormones themselves will be unavailable in the future. In the last few years, some forms of injectable oestrogen and testosterone have been in shortage. People I know have an extra vial of hormones reserved for them at their pharmacy, “just in case”, and many people report being unable to obtain injectable hormones. Different forms of hormones have different primary and side effects, and are not interchangeable, and switching to a different form is not possible or desirable for many due to potential adverse health effects. This constantly looming threat remains at the background of many of our minds, and contributes to a state of perpetual anxiety seldom absent from trans subjectivities.

Despite the presence of public prescription drug insurance in Québec, a number of barriers confront trans people who seek to obtain life-saving hormone replacement therapy. In this article, I have considered extra-legal barriers. In the companion article to this piece, I will consider the threat of delisting hormone replacement therapy from drug insurance under human rights law.