Phillips v. Michigan Dept. of Corrections
| Decision Date | 26 January 1990 |
| Docket Number | No. G88-693 CA1.,G88-693 CA1. |
| Citation | 731 F. Supp. 792 |
| Parties | Marty PHILLIPS, Plaintiff, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Robert Brown, Jr., Director, Darryl Opicka, D.O., R.C.F., Craig Hutchinson, M.D., Medical Director, R.C.F., Lynn A. Green, M.D., Deputy Medical Director, M.D.O.C., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
James H. Geary, Howard & Howard, Kalamazoo, Mich., for plaintiff.
A. Peter Govorchin, Asst. Atty. Gen., Frank J. Kelley, Atty. Gen., Corrections Div., Lansing, Mich., for defendants.
This case is currently before the Court on plaintiff Marty Phillips' Motion for a Preliminary Injunction. Plaintiff is a prisoner at the Riverside Correctional Facility in Ionia, Michigan. Plaintiff filed a complaint in September 1988 pursuant to 42 U.S.C. § 1983 alleging that defendant Michigan Department of Corrections ("MDOC") has been deliberately indifferent to plaintiff's serious medical needs. The Court heard testimony in this case at a hearing which took place on December 11 and 12, 1989. Plaintiff stressed that she is asking this Court only for the opportunity to continue her estrogen treatment, at her own expense, if necessary. Plaintiff is not seeking sex reassignment treatment, nor is she complaining of special housing needs, bathroom or showering privileges.1
Plaintiff is an inmate at Riverside Correctional Facility, an all-male facility. The medical experts testifying in this case describe plaintiff as gender dysphoric, that is, plaintiff was born with male genitalia, yet anguishes over being a man. Indeed plaintiff asserts that she is a woman, a transsexual.2 Plaintiff testified that although she was born with male physical characteristics, she is psychologically a female.
Before plaintiff's incarceration, she appeared and lived as a woman. Plaintiff adopted the name Lindsey Patricia Wofford, and lived with a man, Gradie Wofford, in a heterosexual relationship. Born Albert Hart, plaintiff has cross-dressed since she was fourteen years old, and lived as a woman since she was seventeen.3 Now thirty four, plaintiff has had a number of surgeries and other procedures to enhance her appearance as a female, including electrolysis, a brow lift, dermabrasions, a chemical face peel, jaw reduction, a chin implant, and breast implant surgery. In addition, since the age of seventeen or eighteen, plaintiff has taken estrogen treatment to slow hair growth, soften skin, develop the breast implants, and further develop female characteristics.4 Plaintiff retains male genitalia, and testified that she has not yet had castration surgery, because of the expense and because, in plaintiff's words, "before I had my last surgery, I wanted everything to be perfect."
After being arrested for the charge which led to her imprisonment, plaintiff used the name Marty Phillips. Plaintiff explained that she did this to save her family the embarrassment associated with a criminal trial. Plaintiff was charged with aiding and abetting an arson in which an individual died. At trial, plaintiff was convicted of first degree murder. That conviction was recently overturned by the Michigan Court of Appeals, and it is not yet clear whether the Michigan Supreme Court will hear the appeal. Thus it is possible that plaintiff will be released from prison in a few months.
When plaintiff was first incarcerated, plaintiff was placed in an all-male jail, and the Department of Corrections provided her estrogen treatment. Yet, after plaintiff was transferred to the correctional facility in Ionia, the hormonal treatments were stopped after plaintiff was examined by a MDOC physician, Dr. Opika. Plaintiff was also denied her requests for brassieres until recently when Dr. Opika's superior intervened. According to plaintiff, at the time Dr. Opika first examined her, he abruptly said that plaintiff was born a male and would stay a male as far as the MDOC was concerned.
One of the prison's policy directives affords prisoners limited access to health services outside the facility, at their own expense. Plaintiff has offered to pay for the estrogen therapy herself, and agreed to release the MDOC from claims arising from adverse complications of the estrogen treatment. Defendant MDOC has continued to deny plaintiff access to the treatment. As a result, plaintiff testified that she has suffered significant discomfort due to a reduction of tissue around her breasts which caused bruising. The lack of estrogen has also reversed many of the female characteristics previously attained through treatment and has caused periods of vomiting and depression.
During the two day hearing, the Court heard medical testimony from three physicians. Also, one medical expert was deposed and the transcript was provided to the Court. The following is a summary of the highlights of this medical and psychiatric evidence.
Dr. Darryl Opika, a general practitioner, originally examined plaintiff at Riverside Correctional Facility. He testified that he had no special expertise in diagnosis or treatment of transsexuals or gender dysphoric individuals. After Dr. Opika discovered that plaintiff still had testicles, he decided that there was no medical indication for estrogen. He also admitted that he denied plaintiff's request for a brassiere, stating that he did not "buy bras." Referring to plaintiff using masculine pronouns, Dr. Opika stated that plaintiff Phillips would not have his testicles removed while in the MDOC, and while in the Department of Corrections, he would remain in a male prison and "would be a male." Dr. Opika also testified that he had "no way of knowing whether plaintiff is or isn't a transsexual."
Dr. Robert Dickey, defendant's medical expert, is a staff psychiatrist at the Clarke Institute of Psychiatry in Toronto, Canada. Dr. Dickey is the psychiatrist in charge of the Gender Identity Clinic at the Clarke Institute, and has seen hundreds of patients through his work at the clinic in the past seven or eight years. Dr. Dickey examined plaintiff in one session recently at Ionia Correctional Facility.
According to Dr. Dickey, transsexualism is one of several types of gender dysphoria. See Defendant's Exhibit 3 (Diagnostic and Statistical Manual of Mental Disorders) at 71-78. Gender dysphoria, a disturbance in gender identity, is a psychiatric condition demonstrating no impairment of reality. Id. at 71. According to the Diagnostic and Statistical Manual of Mental Disorders ("DSM-III-R"), published by the American Psychiatric Association, the crux of the gender identity disorders is as follows:
The essential feature of the gender identity disorders is an incongruence between assigned sex (i.e., the sex that is recorded on the birth certificate) and gender identity. Gender identity is the sense of knowing to which sex one belongs, that is, the awareness that `I am a male,' or `I am a female.' Gender identity is the private experience of gender role, and gender role is the public expression of gender identity. Gender role can be defined as everything that one says and does to indicate to others or to one-self the degree to which one is male or female.
Transsexualism, one of the gender identity disorders, is a severe disturbance.5 The DSM-III-R, used by Dr. Dickey in his testimony, states as follows:
Some forms of gender identity disturbance are on a continuum, whereas others may be discrete. When gender identity disturbance is mild, the person is aware that he is a male or female, but discomfort and a sense of inappropriateness about the assigned sex are experienced. When severe, as in transsexualism, the person not only is uncomfortable with the assigned sex but has the sense of belonging to the opposite sex.
Id. at 71. Dr. Dickey discussed transsexualism and another less severe gender identity disorder — known as gender identity disorder of adolescence or adulthood, non-transsexual type ("GIDAANT") — concluding that plaintiff Marty Phillips is properly diagnosed as having a GIDAANT. See also DSM-III-R § 302.85, at 76. Dr. Dickey decided that plaintiff is not a transsexual, because he questions plaintiff's conviction about acquiring new primary and secondary sex characteristics. According to Dr. Dickey's testimony, his clinic, consistent with the DSM-III-R diagnosis criteria, considers a transsexual as one who is unhappy with his or her anatomical sex and has had a persistent desire for two or more years for a change of primary and secondary sex characteristics. The DSM-III-R defines transsexualism as follows:
The essential features of transsexualism are a persistent discomfort and sense of inappropriateness about one's assigned sex in a person who has reached puberty. In addition, there is persistent preoccupation, for at least two years, with getting rid of one's primary and secondary sex characteristics and acquiring the sex characteristics of the other sex. Therefore the diagnosis is not made if the disturbance is limited to brief periods of stress. Invariably there is the wish to live as a member of the other sex.... People with this disorder usually claim that they are uncomfortable wearing clothes of their assigned sex and therefore dress in clothes of the other sex. Often they engage in activities that in our culture tend to be associated with the other sex. These people often find their genitals repugnant, which may lead to persistent requests for sex reassignment by hormonal or surgical means. To various degrees, the behavior, dress, and mannerisms become those of the other sex.
Id. at 74. A transsexual demonstrates a consistent desire to change primary and secondary sex characteristics over a period of time and with an intensity Dr. Dickey feels plaintiff lacks.
On the other hand, Dr. Dickey stated that plaintiff falls into another gender dysphoric group, the GIDAANT class, which the DSM-III-R defines as follows:
The essential features of this...
To continue reading
Request your trial
-
Kosilek v. Spencer
...]; Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir.1995); Phillips v. Mich. Dept. of Corr., 932 F.2d 969 (6th Cir.1991), affg.731 F.Supp. 792 (W.D.Mich.1990); White[ ], ;Meriwether v. Faulkner, 821 F.2d 408, 411–413 (7th Cir.1987); see also Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir.1997) (d......
-
Wolfe v. Horn
...terminate medical treatment that was previously recommended and administered by a medical professional. In Phillips v. Michigan Dep't. of Corrections, 731 F.Supp. 792 (W.D.Mich.1990), aff'd, 932 F.2d 969, 1991 WL 76205 (6th Cir.1991), the plaintiff had taken hormones immediately before inca......
-
O'Donnabhain v. Comm'r of Internal Revenue
...supra; Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir.1995); Phillips v. Mich. Dept. of Corr., 932 F.2d 969 (6th Cir.1991), affg. 731 F.Supp. 792 (W.D.Mich.1990); White v. Farrier, supra; Meriwether v. Faulkner, 821 F.2d 408, 411–413 (7th Cir.1987); see also Maggert v. Hanks, 131 F.3d 670, 67......
-
Kosilek v. Maloney
...general population of a male prison. Other state prison officials have apparently been able to do so safely. See Phillips v. Mich. Dept. of Corr., 731 F.Supp. 792, 792 at n. 1. (W.D.Mich.1990), aff'd, 932 F.2d 969 (1991) (issuing preliminary injunction requiring the reinstitution of previou......
-
Binary Imprisonment: Transgender Inmates Ensnared Within the System and Confined to Assigned Gender
...v. Gomez, 9 F. App'x 793, 794 (9th Cir. 2001); Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000); Phillips v. Mich. Dep't of Corr., 731 F. Supp. 792, 800 (W.D. Mich. 1990), aff'd, 1991 U.S. App. LEXIS 10204, at *1-2 (6th Cir. May 10, 1991); White v. Farrier, 849 F.2d 322, 325 (8th Cir. 19......
-
Tax Court rules on medical necessities.
...2000); Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir. 1995); Phillips v. Michigan Dept. of Corr., 932 F.2d 969 (6th Cir. 1991), aff'g 731 F. Supp. 792 (W.D. Mich. 1990); White v. Farrier, 849 F.2d 322 (8th Cir. 1988); and Merriwether v. Faulkner, 821 F.2d 408, 411-413 (7th Cir. 1987). (30) O......
-
Gender Identity Disorders in Prisons: What Are the Legal Implications for Prison Mental Health Professionals and Administrators?
...http://www.nclrights.org/site/DocServer/RightsofTransgender-Prisoners.pdf?doc Phillips v. Michigan Department of Corrections et al., 731 F. Supp. 792 (WD Mich, 1990).Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980).Reed, H. M. (2003). Sexual reassignment surgery (SRS): Sex change operation in G......
-
Transgender Inmates in Prisons
...in the California prison system. Hastings Race & Poverty Law Journal, 8, 109-137. Phillips v. Michigan Department of Corrections, 731 F. Supp. 792 (WD Mich, 1990).Pizarro, J., & Stenius, V. (2004). Supermax prisons: Their rise, current practices, and effect on inmates. The Prison Journal, 8......