| The decision in Hogan v. Ontario (Minister of Health and Long-Term Care)1 allows the Ontario government to continue to omit sex reassignment surgery (SRS) from the list of publicly funded health services in Ontario. This paper argues that justifiably delisting services necessitates a contextual approach to health and human dignity which considers the social construction of disability and gender, the historical basis of assumptions about medical care, and the expressive ability of the law. A refusal to publicly fund SRS in Ontario perpetuates the stigma associated with transsexualism through the maintenance and promotion of misconceptions and stereotypes; the expressive ability of the law ought to be considered when making delisting decisions. Moreover, the traditional judicial deferential stance to governmental decisions is unwarranted as it inadequately considers Charter2 and human rights. Procedural modifications are suggested, including a principled approach to delisting recommendations, written reasons for decisions, public consultation, and an effective review mechanism.; 1[2006] O.H.R.T.D. No. 34 2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, [Charter]. |
