The Limits of Consent: Difficulties for Youth Accessing Gender-Affirming Care in Ontario
By: Lucas Marqus, JD candidate Lincoln Alexander School of Law
September 22, 2023
Keywords: gender-affirming care, gender-affirming healthcare, transgender youth, 2SLGBTQI+
Access to gender-affirming care for transgender (trans) youth is a common theme of public debate in the United States and Canada. Trans youth are youth under the age of majority whose gender identity does not correspond to the gender they were assigned at birth. Gender-affirming care includes various social, psychological, behavioural and medical interventions to support and affirm an individual’s gender identity.
Gender-affirming medical interventions are typically the focal point of the debate; these interventions can include hormone therapy, puberty blockers and surgery – though surgery is rarely provided for youth under the age of majority. Hormone therapy promotes the development of physical characteristics that better align with one’s gender identity. Puberty blockers are a reversible treatment that pauses physical changes associated with puberty, giving patients and their families time to figure out the path they want to take. For the purposes of this piece, my use of the term gender-affirming care refers to gender-affirming medical interventions.
Over a dozen USA states passed bills in 2023 that prevent trans youth from accessing gender-affirming care. Many of those bills have been challenged in court for being unconstitutional. In Canada, various courts have also considered whether parents of trans youth have the right to prevent their children from consenting to gender-affirming care. As of July 2023, Canadian courts have consistently held in favour of youth accessing care, typically citing youth autonomy rights and the overwhelming consensus among medical organizations regarding the benefits of gender-affirming care for trans youth.
The framework for accessing gender-affirming care in Ontario as a trans youth seems to align with these decisions. No express legal prohibitions against access exist. In practice, however, access to gender-affirming care is severely restricted, putting trans youth at significant risk for adverse mental health outcomes and suicide. Trans youth between the ages of 15 and 17 have five times the risk of suicidal ideation and eight times the risk of attempting suicide than their peers. Importantly, the period between when trans youth intend to start making physiological changes to their appearance and when they can access gender-affirming care is when they are most at risk for depression and suicide. While some of the challenges that trans youth face in accessing care may have to do with larger institutional problems inherent in the Ontario healthcare system, such as a lack of resources, some challenges stem from arguably discriminatory policies. In this piece, I will first describe the current framework for accessing gender-affirming care in Ontario as a trans youth and then discuss three policy-based barriers to their accessing care. The combined effect of these barriers is putting trans youth at severe risk.
Gender-affirming Care in Ontario
In Ontario, access to gender-affirming care for minors is not expressly prohibited by law. Any primary care provider can prescribe hormone therapy and puberty blockers or refer patients for transition-related surgeries. Further, youth can receive gender-affirming care without parental consent, provided that a physician determines the youth can provide informed consent. There are no specific age requirements for consent to healthcare in Ontario. Notably, the Ontario Health Insurance Plan (OHIP) changed its funding criteria in August 2016 to align with the World Professional Association for Transgender Health (WPATH.) Since WPATH’s recommendations for surgery are more stringent than for hormone therapy and puberty blockers, surgical options – especially genital surgeries – are typically not offered to trans youth.
In my review, I found no reported case law in Ontario on trans youth asserting their right to consent to care despite their parents’ objection. However, there are at least two decisions of this nature involving youth from British Columbia: AB v CD and EF and AM v Dr. F. In both cases the court held in favour of the right of the youth to receive care. The Supreme Court of Canada’s leading decision on whether minors have capacity to consent, AC v Manitoba, is unrelated to gender-affirming care but arguably sets out the guiding reasoning of the British Columbia decisions. In it, Abella J. wrote, “If after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent’s views ought to be respected.” Underlying this statement is that respect for adolescent autonomy is in the “best interests of the child,” a standard borrowed from the United Nations Convention on the Rights of the Child, which Canada ratified in 1991.
Barriers to Access in Ontario
Despite how critical access to gender-affirming care is for trans youth, accessing that care in Ontario involves navigating a complex network of community health centres, hospital-based clinics and referrals. Waitlists can stretch into years because of the limited availability of primary care providers offering these services.
Given that the framework for accessing care is so permissive – and thus, seemingly recognizes the importance of gender-affirming care for trans youth – the fact that youth face so many practical difficulties accessing that care is surprising. Three seemingly value-neutral factors facilitate the discrepancy between the permissive framework in Ontario and access to care and, in doing so, are arguably discriminatory. These are (i) the lack of primary care practitioners who have received training in gender-affirming care, (ii) the College of Physicians and Surgeons of Ontario (CPSO) Professional Obligations and Human Rights policy and (iii) the December 2022 changes to the Physician Services agreement between the Ontario Medical Association and the Ministry of Health that effectively shut down the Connect Clinic, which specialized in gender-affirming care for trans people in Ontario.
i) Primary Care Providers Lack Training in Gender-affirming Care
First, gender-affirming care training is not mandatory for primary care providers, and only 24% of medical students in Canada feel gender-affirming care is proficiently taught in medical school. Providers often refer their transgender patients to other doctors and community care clinics specializing in gender-affirming care because of their own knowledge deficits or because they may feel uncomfortable influencing a person’s choice to pursue treatment or not. Many trans people are also uncomfortable receiving gender-affirming care from their primary care provider because of poor experiences with providers who lacked specialized training. As a result, the demand for gender-affirming care in Ontario far outstrips the number of primary care providers who are educated in providing it.
ii) CPSO Policy Enables Conscientious Objection to Gender-affirming Care
Second, the CPSO Professional Obligations and Human Rights policy gives physicians the right to limit the health services they provide for reasons of conscience or religion as long as they do not discriminate based on a protected ground of the Ontario Human Rights Code. They are only required to make an effective referral. The protected grounds include gender identity and gender expression, seemingly protecting trans youth and adults from primary care providers opting out of providing gender-affirming care. The policy also stipulates that physicians must provide care in an emergency and where it is necessary to prevent imminent harm, even where that care conflicts with their conscience or religious beliefs. Given the alarming health outcomes for transgender youth when they are not provided gender-affirming care, the policy would arguably mandate that care be provided and not referred.
However, providers can also practice conscientious objection by relying on the “Clinical Competence” section of the policy: “If physicians feel they cannot appropriately meet the healthcare needs of an existing patient, or those who wish to become patients, they are not required to provide that specific health service or to accept that person as a patient.” While some physicians may refer patients solely because they do not feel they have the requisite training, some physicians could also rely on the lack of mandated training to justify not accepting trans patients on moral grounds. The consequence is that trans youth experience even longer wait times than their cisgender peers seeking access to care from a family physician. Trans youth must wait for their primary care provider to make an effective referral, at which point they will likely be placed on a multi-month or multi-year waitlist with one of the handful of clinics and primary care providers willing to provide gender-affirming care to trans youth. While it is undoubtedly important for trans youth to receive gender-affirming care from a supportive practitioner with the requisite training, the delay youth currently experience when seeking care is responsible for unacceptable health outcomes.
iii) Changes to the Physician Services Agreement Fail to Accommodate Gender-affirming Care
The December 2022 changes to the Physician Services Agreement (PSA) between the Ontario Government and the Ontario Medical Association did not expressly discriminate against gender-affirming care, but these changes exacerbated the challenges trans youth face in accessing healthcare in the province. The changes stipulate that physicians can only charge a fraction of the amount they were originally paid to see patients virtually.
The Connect Clinic, a former hub of trans healthcare in Ontario, was a virtual-only gender-affirming care clinic that had provided gender-affirming care to Ontarians since 2019. When the changes to the PSA took effect on December 1, 2022, the clinic effectively ceased operations. At the time, it had 1,500 registered patients and almost 2,000 prospective patients on the waitlist. The consequence was even greater delays in accessing care for trans youth and adults. Some medical providers, such as physicians who deal with addiction, were exempted from the changes to the PSA because the treatment was medically necessary. However, this exemption was not extended to physicians providing gender-affirming care. The critical state of gender-affirming care in Ontario, in other words, was not recognized.
On June 28, 2023, the Connect Clinic announced that it had launched a new online venture called Foria Clinic to continue to provide virtual gender-affirming care services. Typically, patients cannot be billed for services that OHIP already covers. However, the care at Foria Clinic is provided by experienced nurse practitioners, whom OHIP does not cover, so the clinic can charge patients for virtual gender-affirming care. Unfortunately, Foria Clinic does not mitigate the challenges faced by youth seeking access to gender-affirming care. Foria currently only offers gender-affirming care services to people eighteen and over, while Connect Clinic did not set a minimum age for eligibility. In addition, since the care is not government-funded, even if age eligibility were extended in the future, the care may be cost-prohibitive for many trans youth.
In November 2022, the Ontario government under Doug Ford refused to pass a bill from Member of Provincial Parliament Kristyn Wong-Tam that would begin to improve access to gender-affirming health care for Two-spirit, Trans, Non-Binary, Gender-Diverse, and Intersex people in Ontario – a bill that is sorely needed given the current state of access. While there is no legal barrier ruling out access to gender-affirming care in Ontario, there are many barriers to accessing gender-affirming care that severely restrict access for trans youth. In addition to monitoring whether the wave of legislation in the United States prohibiting access to gender-affirming care is making its way to Ontario and Canada, trans activists and allies should consider how current, seemingly value-neutral policies, can be vectors of discrimination.