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Hicklin v. Precynthe

United States District Court, E.D. Missouri, Eastern Division

February 9, 2018




         This matter is before the Court on Plaintiff Jessica Hicklin's Motion for Preliminary Injunction (Doc. 63). The Motion is fully briefed and ready for disposition. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) (Doc. 57). For the following reasons, Plaintiff's Motion will be GRANTED, in part and DENIED, in part.


         On August 22, 2016, Plaintiff Jessica Hicklin (“Ms. Hicklin”)[3] filed this action for injunctive and declaratory relief pursuant to 42 U.S.C. § 1983 against Defendant Corizon, LLC[4](“Corizon”), the Individual Corizon Defendants, [5], [6] and the MDOC Defendants[7] (collectively “Defendants”) for their alleged deliberate indifference to Ms. Hicklin's serious medical needs (Doc. 19). Ms. Hicklin specifically alleges that despite knowing that she has gender dysphoria, a serious medical condition, Defendants have refused to provide Ms. Hicklin with medically necessary care including hormone therapy, permanent hair removal, and access to “gender-affirming” canteen items (Id. at 2-3). Ms. Hicklin asserts that Defendants refuse to provide her with this hormone therapy, citing a policy or custom of providing hormone therapy only to those transgender inmates who were receiving it prior to incarceration (the so-called “freeze-frame” policy) (Id.).

         On April 4, 2017, Ms. Hicklin filed a Motion for Preliminary Injunction (Doc. 63) requesting a preliminary injunction order that (1) directs Defendants to provide Ms. Hicklin with care that her doctors deem to be medically necessary treatment for gender dysphoria, including but not limited to providing her hormone therapy, access to permanent body hair removal, and access to “gender-affirming” canteen items; and (2) enjoins Defendants from enforcing the unconstitutional policies, customs, or practices that deny inmates with gender dysphoria individualized medically necessary treatment and care, which are contrary to widely accepted standards of care and the recommendations of Ms. Hicklin's treating mental health professionals (Doc. 64 at 5). As to gender-affirming canteen items, Ms. Hicklin seeks to have access to, and purchase herself, the same items available to women in the MDOC (Doc. 83 at 9).

         The Court held a hearing on the Motion on May 23, 2017 during which the Parties presented oral argument (Doc. 75). The Court subsequently granted Plaintiff leave to supplement the record no later than June 28, 2017 (Doc. 85). Plaintiff filed two Motions to Supplement the Preliminary Injunction Record (Docs. 88, 98). In the first of these Motions, filed on June 28, 2017, Plaintiff seeks leave to supplement the record with two letters written by Ms. Hicklin to her treating psychiatrist (Doc. 88-2). While the Court will allow Plaintiff to supplement the preliminary injunction record with these two letters, it will take into consideration the Corizon Defendants' arguments in their opposition to the Motion to Supplement (Doc. 89). The Second Motion to Supplement the Preliminary Injunction Record (Doc. 98), however, is untimely and will be denied. Accordingly, the facts before the Court are as follows.

         Ms. Hicklin is a thirty-eight year old pre-operative transgender woman in the custody of the Missouri Department of Corrections (“MDOC”) and housed at Potosi Correctional Center (“PCC”), a facility for male inmates, in Mineral Point, Missouri (Doc. 19 at 5). Ms. Hicklin has been in the custody of the Missouri Department of Corrections (“MDOC”) since the age of 16, serving a sentence of life without the possibility of parole and 100 years, to be served concurrently (See Doc. 16 at ¶64; Doc. 64-1 at 12; Doc. 68-1 at 3). Ms. Hicklin suffers from gender dysphoria (also known as gender identity disorder or transsexualism), a medical condition caused by the incongruence between a person's gender identify and the sex they were assigned at birth (Doc. 64-1 at 3).

         Gender Dysphoria Background

         Gender dysphoria is listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-V”) (Doc. 64-1 at 3). The diagnostic criteria for gender dysphoria in adolescents and adults are as follows:

A. A marked incongruence between one's experienced/expressed gender and assigned gender, of at least six months' duration, as manifested by at least two of the following:
1. A marked incongruence between one's experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics).
2. A strong desire to be rid of one's primary and/or secondary sex characteristics because of a marked incongruence with one's experienced/expressed gender (or in young adolescents, a desire to prevent the development of the anticipated sex characteristics).
3. A strong desire for the primary and/or secondary sex characteristics of the other gender.
4. A strong desire to be of the other gender (or some alternative gender different from one's assigned gender).
5. A strong desire to be treated as the other gender (or some alternative gender different from one's assigned gender).
6. A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one's assigned gender).
B. The condition is associated with clinically significant distress or impairment in social, occupational or other important areas of functioning.

(Id. at 3-4 (citing DSM-V)).

         According to the Declaration of Dr. Randi C. Ettner (“Dr. Ettner”), a clinical and forensic psychologist retained by Ms. Hicklin as an expert, individuals with untreated gender dysphoria experience clinically significant depression, anxiety, and mental impairment, and, when left untreated, additional serious medical problems including suicidality and the compulsion to engage in self-castration and self-harm (Doc. 64-1 at 4-5).[8] Ms. Hicklin asserts that she should be provided treatment consistent with the World Professional Association for Transgender Health's (“WPATH”) Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People (the “Standards of Care”) (Doc. 19 at 2-4). Dr. Ettner notes that these Standards of Care are “the internationally recognized guidelines for the treatment of persons with gender dysphoria” and have been endorsed by numerous professional medical organizations including the American Medical Association, the American Psychological Association, the American Psychiatric Association, the World Health Organization, and the National Commission of Correctional Health Care (Doc. 64-1 at 5, 8). The Standards of Care explicitly state that they are equally applicable to patients in prison (Id. at 7).

         The Standards of Care

         The following provisions of the Standards of Care are pertinent to this case. Once a diagnosis of gender dysphoria is established, individualized treatment should be initiated (Id. at 6). Such treatment may include (1) living in the gender role that is consistent with one's gender identity, (2) hormone therapy to feminize or masculinize the body, (3) surgery to change primary and/or secondary sex characteristics and/or (4) psychotherapy (Id.). Changes in gender expression including clothing and grooming that affirm one's gender identity as well as permanent body hair removal are significant in alleviating gender dysphoria (Id. at 8). “For individuals with persistent, well-documented gender dysphoria, hormone therapy is an effective, essential, medically indicated treatment to alleviate the distress of the condition” (Id.). Dr. Ettner indicates that the therapeutic effects of hormone therapy are twofold: (1) the patient acquires congruent secondary sex characteristics (i.e., breast development, retribution of body fat, cessation of male pattern baldness, and reduction of body hair) and (2) the hormones act directly on the brain lessening the gender dysphoria and associated psychiatric symptoms (Id. at 9). In regards to psychotherapy:

Merely providing counseling and/or psychotropic medication to a severely gender dysphoric patient is a gross departure from medically accepted practice. Inadequate treatment of this disorder puts an individual at serious risk of psychological and physical harm.

(Id. at 11 (quoting WPATH Medical Necessity Statement, 2016)).

         As Dr. Ettner explains,

Psychotherapy can provide support for the many issues that arise in tandem with gender dysphoria. However, psychotherapy alone is not a substitute for medical intervention when medical intervention is required, nor is it a precondition for medically indicated treatment. By analogy, counseling can be useful for patients with diabetes by providing psychoeducation about living with chronic illness and nutritional information, but counseling doesn't obviate the need for insulin.

(Id. at 10).

         The Medical Record

         Pursuant to PCC policy, on March 4, 2015, Ms. Hicklin requested an initial evaluation for gender dysphoria (Doc. 19 at ¶70). As a result, Dr. Meredith Throop (“Dr. Throop”), a psychiatrist, evaluated Ms. Hicklin on March 23, 2015 (Doc. 64-4 at 2-4). Based on this assessment, Dr. Throop determined that Ms. Hicklin met the diagnostic criteria for gender dysphoria outlined in the DSM-V (Id. at 4). Dr. Throop referred Ms. Hicklin to an endocrinologist “for evaluation of cross-sex hormone [treatment]. Currently, hormone therapy (estrogen, testosterone blockers) is the accepted treatment for individuals with [a] Gender Dysphoria diagnoses” (Id.). In an addendum to Dr. Throop's notes from the evaluation, Dr. Throop notes, “after researching DOC protocols, it was found that endocrinology consult is NOT the appropriate next step for psychiatry in the [treatment] of Gender Dysphoria. Endocrinology consult was not requested” (Id.). Ms. Hicklin was thereafter referred to the Chronic Care Clinic for mental health symptoms, PTSD and anxiety, related to her diagnosis of gender dysphoria and she continued to see Dr. Throop (Doc. 64-4 at 4-6). During her treatment with Dr. Throop, Ms. Hicklin reported that she “continues to experience much discomfort and anxiety surrounding [her] assigned gender [(male).]” (Id. at 7). Ms. Hicklin also reported “occasional feelings of hopelessness” and “distress pertaining to male attributes (body hair, lack of gender affirming canteen items, male attire)” (Id. at 10). Dr. Throop continued to recommend hormone therapy, noting, “It is the opinion of this provider that neglecting to treat this [patient] with the currently accepted standards of care for gender dysphoria as per the APA and WPATH [Standards of Care] is detrimental to [her] mental/emotional/psychiatric well-being” (Id. at 9, 11). Dr. Throop left MDOC for another position in December 2015 (Doc. 64-3 at 2). Dr. Throop indicates, in a declaration provided by Ms. Hicklin, that “[i]f called to testify in this matter, I would do so consistent with my notes and evaluation of Ms. Hicklin, including testimony to confirm her diagnosis of gender dysphoria, and my recommended course of treatment in accordance with the medically accepted Standards of Care” (Doc. 64-2 at 1).

         During the same time period, on June 19, 2015, Ms. Hicklin was evaluated for a TRIA hair removal device[9] she requested or formal electrolysis (Doc. 64-6 at 31). Defendant Associate Regional Medical Director Dr. Glen Babich determined that neither treatment option was medically necessary (Id. at 32; Doc. 68-4; Doc. 68-5; Doc. 68-7).

         Ms. Hicklin continued her treatment with a new psychiatrist, Dr. Evelynn Stephens (“Dr. Stephens”) (Doc. 64-6 at 4). Dr. Stephens diagnosed Ms. Hicklin with “gender dysphoria with associated panic secondary to current body characteristics” on December 16, 2015 (Id. at 6). Dr. Stephens prescribed medication for panic and body anxiety symptoms (Id.). Dr. Stephens also recommended that Ms. Hicklin be treated with “hair removal device and hormone therapy as these are likely to greatly decrease patient's current level of discomfort and intrusive thoughts” (Id.). After this initial evaluation, Dr. Stephens met with the gender dysphoria committee on January 13, 2016 to discuss next steps (Id.). Dr. Stephens noted that her “overall suggestion is to utilize the standard of care discussed by the 2012 APA task force on treatment of gender identity disorder (now gender dysphoria)” and specifies “the patient initially requires psychotherapy during a period that patient is presenting as desired gender, then I would suggest referral to medicine to initiate hormone therapy” (Id.). Dr. Stephens added:

[Ms. Hicklin's] symptoms are escalating with age given risk of male pattern baldness more likely at this time if hormone therapy not initiated. This should be taken into account when considering the time table for starting treatment. The patient does meet the requirements for diagnosis of gender dysphoria and has now been diagnosed by two psychiatrists.

(Id. at 10).

         During this time, Ms. Hicklin discontinued anxiety medication shortly after its prescription (Id. at 14). At her next visit with Dr. Stephens on or about February 3, 2016, Dr. Stephens recommended “psychotherapy ongoing, 3-6 months living as a female with access to products that females in DOC have access to for self care [sic], then referral to medicine for hormone therapy. Suggest weekly psychotherapy if possible given the severity of illness” (Id. at 15). However, on March 14, 2016, Dr. Stephens suggests the use of medication to prevent hair loss as “this could be used while pending decision on DOC policy of use of hormone treatment of gender dysphoria diagnosed while incarcerated. Defer to medical” (Id. at 17). Then again, Dr. Stephens in a plan note dated April 22, 2016, states:

Per discussion from Gender Dysphoria council at PCC, still pending decision from recent request on policy surrounding treatment of gender dysphoria with hormonal treatment if diagnosed in prison.
Suggest consideration of addition of hormone treatment as patient showing improved sense of self during therapy sessions and addition of this treatment likely to aid in partial decrease of anxiety symptoms. Defer final decision to medical and pending decision as noted above. Gender dysphoria committee continues to follow.

(Id. at 21). On June 6, 2016, while Dr. Stephens notes that she will defer the final decision regarding whether Ms. Hicklin can begin hormone therapy to the medical team, she states, “[f]ormal request for hormone therapy consideration was submitted again today as the patient has successfully lived as a female with ongoing therapy for over 6 months” (Id. at 24). See alsoid. at 35 (formal referral to medical to consider hormone replacement, noting “[t]his is the next step in accordance with APA guidelines”). On September 20, 2016, Dr. Stephens notes, “[g]iven this increased agitation, self harm [sic] thoughts and reported active symptoms of male pattern baldness will refer to gender dysphoria ...

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