The Social Chamber of the High Court of Justice of the Canary Islands has ratified the ruling issued in April 2022, which condemned the Canary Islands Health Service (SCS) to pay a trans person who was denied a phalloplasty, that is, the surgical construction of a penis, in Lanzarote. The patient had to be operated on in a private clinic, so he had to pay 20,737.10 euros out of his own pocket.
The TSJC has dismissed the appeal for reversal that was filed by the SCS and by the affected person against the ruling of the Social Court number 1 of Arrecife de Las Palmas, issued on April 29, 2022, where the affected person's claim was partially upheld and his right to be reimbursed for the amount of the phalloplasty was declared, although his request to be compensated for the payment of a mastectomy (removal of the breasts), which was also performed by private healthcare and which he claimed from public healthcare for a value of 7,445 euros, was dismissed.
Both the Court of First Instance and the Chamber of the High Court of Justice of the Canary Islands have considered it proven that the SCS advised against the mastectomy because he had been on hormone treatment for less than a year and, despite this, he had his breasts removed in a private center.
The Chamber has analyzed the patient's medical history, diagnosed with gender dysphoria by doctors of the Canary Islands Health Service since 2017, and considers that it is a case of "unjustified denial of treatment".
Therefore, it has estimated that the operation must be paid for and that when the reimbursement claim is filed, the administration rejects it and argues that "the plaintiff goes to services other than Social Security by his own decision and without authorization, when it is evident that this is not the case, since the decision to go to the private clinic (...) to have the phalloplasty was not a unilateral and capricious decision of the plaintiff, but rather he went to said health center because the public health service in which he was being treated could not provide him with such a service."
Thus, the Chamber has added that "in the present case, the SCS did not even agree to refer him to another public center, as endocrinology requested [...], that is, it rejected any possibility of obtaining another solution in the public health care circuit [...]."
Vital risk
The TSJC has assured that the medical diagnosis of the transsexual person who presented gender dysphoria implies "an important mental health condition". Thus, since he identified himself as a trans man, he sought medical attention and requested specific procedures, such as the request for phalloplasty.
"It is crucial to highlight that the plaintiff presented increasing anxiety and aggravation of his adaptive disorder as medical attention was delayed," he pointed out.
The delay in treatment generated "suicidal thoughts" in the patient, so he underwent phalloplasty in Barcelona. The Chamber has assured that these facts estimate that it was a situation of "utmost importance and transcendence" from a medical and psychological perspective.
Likewise, it has highlighted that the SCS denied him phalloplasty and also "did not provide clear alternatives or make adequate efforts to refer him to a reference center." Thus, it has considered it proven that "the lack of options offered, there was a real impossibility of accessing Social Security services."
Discriminated
In this sense, the Chamber has added that it "cannot ignore" that trans people can be "subject to countless situations of social, health and legal discrimination".
The ruling of the European Court of Strasbourg has affirmed "on countless occasions" the right of trans people "to change sex and the right to be publicly recognized according to the new sex, which is established as a positive obligation of the State".
This ruling is subject to appeal to the Supreme Court for the unification of doctrine.
