Hicklin v. Anne Precynthe, Ian Wallace, Cindy Griffith, Stan Payne, Scott O'Kelly, Deloise Williams, Corizon Health, Inc., Case No. 4:16-cv-01357-NCC

• Decision Date: 09 February 2018
• Docket Number: Case No. 4:16-cv-01357-NCC
• Parties: JESSICA HICKLIN, Plaintiff, v. ANNE PRECYNTHE, IAN WALLACE, CINDY GRIFFITH, STAN PAYNE, SCOTT O'KELLY, DELOISE WILLIAMS, CORIZON HEALTH, INC., WILLIAM MCKINNEY, GLEN BABICH, T.K. BREDEMAN, DIANA LARKIN, KIMBERLEY S. RANDOLPH, DAWN WADE, STORMI MOELLER, SHIRLEY EYMAN, ELIZABETH ATTERBERRY, and KIM FOSTER, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

JESSICA HICKLIN, Plaintiff, v. ANNE PRECYNTHE¹, IAN WALLACE, CINDY GRIFFITH, STAN PAYNE,SCOTT O'KELLY, DELOISE WILLIAMS, CORIZON HEALTH, INC., WILLIAM MCKINNEY, GLEN BABICH,

T.K. BREDEMAN, DIANA LARKIN, KIMBERLEY S. RANDOLPH, DAWN WADE, STORMI MOELLER,

SHIRLEY EYMAN, ELIZABETH ATTERBERRY, and KIM FOSTER, Defendants.

Case No. 4:16-cv-01357-NCC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

February 9, 2018

MEMORANDUM AND ORDER

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.

I. FACTS AND BACKGROUND²

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, LLC⁴ ("Corizon"), the Individual Corizon Defendants,⁵,⁶ and the MDOC Defendants⁷ (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 hasbeen 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). "Forindividuals 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.)...