JD gold medallist says recent fight for trans rights in OHIP appeal was bolstered by Osgoode training

Frank Nasca

For Frank Nasca, it was the culmination of their Osgoode education – and a chance to test three years of legal course work in the courtroom. But the recent JD grad and academic Gold Medal recipient says the rare opportunity as a law student to work on an important tribunal appeal this past spring also meant fighting for a cause that’s close to their heart.

When Nasca, who is transgender, met Ottawa resident Nathaniel Le May in a Facebook group for trans people last winter, they took an immediate interest in his plight. For nearly a year, the Ontario Health Insurance Plan (OHIP) had refused to cover gender-affirming surgery for Le May, who identifies as transmasculine non-binary.

Nasca had studied the issue extensively in the independent research they had done during their three years at Osgoode. So they were happy to provide Le May with information and referrals. Then Le May asked Nasca to represent him in his appeal to the Health Services Appeal and Review Board.

“I could feel Frank’s passion for this case and them embracing the challenge,” said Le May. “They had already demonstrated they are very competent and that they have the ability to represent me.”

The adjudicative tribunal’s practice direction allows for appellants to be represented by law students. So Nasca agreed. Working together, the two of them dived in, spending hundreds of hours to prepare a case and build an evidentiary record that ultimately amounted to more than 1,000 pages. The case even attracted the attention of news outlets like The Globe and Mail.

“It was very time intensive,” said Nasca, “but it was an excellent learning experience.”

One early obstacle was finding an expert medical witness. Almost every Ontario doctor they approached declined, perhaps wary of testifying against OHIP. Nasca and Le May eventually scored a big win by landing Dr. Devin O’Brien Coon, a leading U.S. plastic surgeon and an authority in gender affirming surgery. O’Brien Coon is the clinical director and surgical co-director of the Brigham and Women’s Hospital Center for Transgender Health in Boston and an associate professor of surgery at Harvard Medical School. At another point, Nasca had to puzzle through the intricacies of serving an interprovincial summons on a Quebec-based medical expert.

“There was a lot of learning how to put into action things I had learned in a few courses,” they said, “and working through issues of evidence and how to get the things we needed into the record.”

Along the way, Nasca consulted with some of their Osgoode professors, including Professors Palma Paciocco and Bruce Ryder, adjunct faculty member and Stockwoods LLP lawyer Andrea Gonsalves and lawyer Kisha Munroe with the Human Rights Legal Support Centre, who had served as a mentor during their time in Osgoode’s Anti-Discrimination Intensive Program (ADIP). In addition, they consulted with former colleagues at the Toronto law firm Paliare Roland Rosenberg Rothstein LLP, where they interned in the summer of 2022, receiving significant support from lawyer Denise Cooney.

“I was extremely impressed by their informed, perceptive, deeply thoughtful approach to developing a legal strategy,” Paciocco said of Nasca’s work on the case. “I was also inspired by the energy and dedication with which they used their considerable talents and the legal training they have received at Osgoode to advance social justice – all while wrapping up the JD program and balancing their other commitments. Frank’s work on this case really represents the best of what the Osgoode community offers.”

Nasca and Le May based their arguments on statutory and regulatory interpretation, interpretation of the OHIP schedule of benefits, the Ontario Human Rights Code and sections 7 and 15(1) of the Canadian Charter   of Rights and Freedoms, which pertain to security of the person and equality rights, respectively.

For his gender-affirming surgery, Le May is seeking the surgical construction of a phallus, known as a phalloplasty. But OHIP repeatedly denied coverage for the procedure without a vaginectomy and hysterectomy – surgical removal of the vagina and uterus. Le May and Nasca argued that these additional procedures amounted to coerced sterilization and violated his rights under the Charter and Human Rights Code. They also argued that the wording of the OHIP schedule of benefits and relevant statutes did not preclude coverage of the phalloplasty procedure alone.

In early June, on the eve of the hearing, OHIP reversed its decision and approved funding for the phalloplasty, without the other procedures. As a result, the Health Services Appeal and Review Board lost jurisdiction over the matter, meaning that Le May’s Human Rights Code and Charter claims could not be adjudicated in that forum.

Nasca said OHIP’s decision was “bittersweet” – especially in a post-pandemic period of renewed hostility against the 2SLGBTQI+ community.

“What Nathaniel and I really wanted out of this case was to secure some systemic change,” they said. “My feeling about it was it was a bit of a damage-control measure by OHIP to minimize scrutiny.

“In some ways I feel proud,” they added, “because it speaks to the strength of the case that Nathaniel and I put together, which led OHIP to say we need to reverse course on this decision. But it also means that all the work we did doesn’t get to see the light of day and doesn’t have the same precedential value. We were hoping it would have a broader impact for our community.”

Nasca, who will begin a one-year clerkship with the Court of Appeal for Ontario in August, said that Nathaniel is now exploring other legal options. Their stint with the Court of Appeal will preclude them from being involved – for now.

In the meantime, as they begin their law career, Nasca said the experience gives them confidence in the solid grounding they received at Osgoode.

“I somewhat shaped my curriculum around doing something like this and this was a test of how it worked out,” they said. “I think I was pretty well prepared – especially at this stage of my career – by my education at Osgoode.”