Hicklin v. Lombardi et al
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiff First Motion to Supplement (Doc. 88 ) is GRANTED and Plaintiffs Second Motion to Supplement (Doc. 98 ) is DENIED. IT IS FURTHER ORDERED that Plaintiff Jessica Hicklins Motion for Prelimin ary Injunction (Doc. 63) is GRANTED, in part and DENIED, in part. The Court has carefully considered Plaintiffs specific requests for relief and finds the following injunctive relief to be appropriate: [SEE ORDER FOR COMPLETE DETAILS]. Signed by Magistrate Judge Noelle C. Collins on 02/09/2018. (KCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
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,
ELIZABETH ATTERBERRY, and
Case No. 4:16-cv-01357-NCC
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.
Anne Precynthe is the current Missouri Department of Corrections (MDOC) Director
and is therefore substituted for the former director of the MDOC George Lombardi. Fed. R. Civ.
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 “genderaffirming” 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”
Facts and conclusions determined by a court in granting or denying a preliminary
injunction are provisional and nonbinding. See Henderson v. Bodine Aluminum, Inc., 70 F.3d
958, 962 (8th Cir. 1995).
In July 2015, Ms. Hicklin changed her name and has since updated her social security
card and offender identification card as well as her prison-issued clothing. The parties have
agreed to use female pronouns when addressing Plaintiff Jessica Hicklin.
Defendant is improperly named as Corizon Health, Inc.
Defendants William McKinney, Glen Babich, T.K. Bredeman, Diana Larkin, Kimberley
S. Randolph, Dawn Wade, Stormi Moeller, Shirley Eyman, Elizabeth Atterberry, and Kim
Corizon and the Individual Corizon Defendants will be collectively referred to as the
Defendants George Lombardi, Dwayne Kempker, Ian Wallace, Cindy Griffith, Stan
Payne, Scott O'Kelly, and Deloise Williams.
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
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
3. A strong desire for the primary and/or secondary sex characteristics of the other
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
(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
The Defendants did not object to Dr. Ettner’s declaration.
(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 device9 she requested or formal electrolysis (Doc. 64-6 at 31). Defendant Associate
A laser hair-removal device for personal use at home. See Tria Beauty, Inc. v. Nat'l
Fire Ins. Co. of Hartford, No. C 12-05465 WHA, 2013 WL 2181649, at *1 (N.D. Cal. May 20,
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
(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 also
id. 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 committee to consider dermatology referral and treatment
for hair loss (head) and removal (body) as at this time symptoms [constitute] medical necessity”
(Id. at 35).
On August 31, 2016, Ms. Hicklin’s case was discussed during a conference call of the
Gender Dysphoria Clinical Supervision Group (“GDCSG”) members (Doc. 64-6 at 28). During
the call, the members concurred with Dr. Stephens’ diagnosis of gender dysphoria, and “[a]
referral to the Gender Dysphoria Committee was agreed upon” and “[a]ppropriate hormone
therapy was agreed upon” (Id.). While it is unclear to the Court which group determined a
referral to the Gender Dysphoria Committee was warranted, in a note dated September 20, 2016,
Dr. Stephens indicates, “[r]eferral for hormone therapy treatment placed previously, gender
dysphoria committee in Jefferson City in agreement with referral - - Defer further steps to
medical” (Id. at 34).
On September 29, 2016, Dr. Stephens added an addendum to these notes indicating that
she has received a letter from Ms. Hicklin regarding Ms. Hicklin’s hair removal difficulties (Id.
at 34). Dr. Stephens notes that Ms. Hicklin’s agitation is at “higher levels than previously
reported” as Ms. Hicklin describes an “‘overwhelming feeling of dread,” in the context of
thinning hair on head” and “increasing intrusive self harm [sic] thoughts to remove own testicles
in order to remove offensive testosterone” (Id. at 34-35). While Dr. Stephens references just one
letter, the record reflects that Dr. Stephens received two letters from Ms. Hicklin and Dr.
Stephen’s notes clearly refer to both letters. See Doc. 88-2 (the referenced letters sent to Dr.
Stephens from Ms. Hicklin). Upon receiving these letters, Dr. Stephens set a follow-up visit
within a week of her prior visit with Ms. Hicklin (Doc. 64-6 at 35). In her notes, Dr. Stephens
indicates that Ms. Hicklin suffered from “some increased dysphoria symptoms with body/facial
hair growth . . . and increase in intrusive thoughts to remove testicles with fear of active male
pattern baldness symptoms” (Id. at 36).
On November 10, 2016, Dr. Stephens again notes that she plans to “[c]ontinue to follow
[up] with gender dysphoria committee which has already suggested hormone treatment” (Doc.
68-8 at 9). On January 25, 2017, the GDCSG again convened to discuss Ms. Hicklin’s case
(Doc. 68-8 at 16). The group determined that Ms. Hicklin’s diagnosis was confirmed and
approved her treatment plan (Id.). The treatment plan appears to address Ms. Hicklin’s “gender
integration” and does not include any reference to hormone therapy, “gender affirming” canteen
items, or hair removal (See id. at 17-18).
During her treatment with Dr. Stephens, Ms. Hicklin reported “panic symptoms” with
“active body anxiety, tachycardia, sob, diaphoresisnoted almost daily” (Doc. 64-6 at 5).
Notably, Ms. Hicklin frequently discussed, and Dr. Stephens noted, Ms. Hicklin’s anxiety as it
relates to her gender dysphoria. See also id. at 14 (“Body anxiety and obsessive body hair
removal directly related to gender dysphoria.”); id. at 34 (“increased body anxiety noted”); id. at
36 (“notable body anxiety”); Doc. 68-8 at 12 (“Anxiety related to gender issues and personal
necessities are on going [sic] issues for [her]. Offender reports anxiety is higher than usual this
month.”). Ms. Hicklin also described “disgust surrounding [her] testicles for multiple reasons
[including. . .] the fact that they produce testosterone which is causing [her] body to not look like
[her] own” (Doc. 64-6 at 23). Indeed, Dr. Stephens diagnosed Ms. Hicklin with Anxiety NOS12
occasionally as “acute exacerbation secondary to hair removal difficulty” (see Doc. 68-8 at 5)
and otherwise listed as “Anxiety NOS (2/2 gender dysphoria vs co-occurring personality disorder
with chronic fixed false beliefs-likely combination with improving insight)” (see Doc. 68-8 at
12). Ms. Hicklin also reported experiencing intrusive thoughts of cutting off her testicles (Doc.
64-6 at 5, 18, 35) and counsel stated on the record that Ms. Hicklin has attempted to remove her
testicles and has a past history of suicidal attempts (Doc. 83 at 6). See also Doc. 64-1 at 12-13
(“Ms. Hicklin avoids contact with her genitals, and, typical of incarcerated gender dysphoric
individuals without access to care, she has thoughts of removing them. On one occasion, Ms.
Hicklin tried to amputate her testicles with a tourniquet, but was stopped by the awareness of the
consequences . . . and a lack of necessary tissue for future surgical treatment.”).
Tachycardia is defined as “rabid beating of the heart, conventionally applied to rates
over 90 beats per minute.” Stedman’s Medical Dictionary 895100 (2014).
Diaphoresis is a synonym for perspiration. Stedman’s Medical Dictionary 244680
As of today’s date, Ms. Hicklin is not receiving hormone therapy and does not have
access to “gender-affirming” canteen items or the means for permanent hair removal. The
MDOC Defendants indicate that medical staff continues to provide Plaintiff with psychiatric care
and counseling (Id. at 26; Doc. 83 at 18).
Expert Testimony—Dr. Ettner’s Evaluation of Ms. Hicklin
On January 27, 2017, Plaintiff’s expert, Dr. Ettner, met with and evaluated Ms. Hicklin.
Dr. Ettner diagnosed Ms. Hicklin with “intractable, untreated gender dysphoria” (Doc. 64-1 at
15). Upon review of Ms. Hicklin’s medical records, Dr. Ettner found that:
[The] lack of appropriate treatment for gender dysphoria is causing Ms. Hicklin to
experience serious psychological and physical symptoms including panic attacks,
anxiety, racing heartbeat (tachycardia), shortness of breath, sleep disturbance, lack of
appetite, headaches, and excessive sweating. She also experiences intrusive thoughts of
cutting off her testicles, and has attempted to amputate them with a tourniquet[.]
(Doc. 64-1 at 16).
Dr. Ettner further indicated that, “Ms. Hicklin has a history of suicide ideation and two suicide
attempts” (Id. at 12). At the evaluation conducted by Dr. Ettner, Dr. Ettner administered four
standardized psychometric indices and, from their outcomes, concluded that “Ms. Hicklin
experiences moderately severe depressive symptoms. These include changes in appetite and
sleep irritability, loss of energy, suicidal thoughts, fatigue, and agitation” (Doc. 64-1 at 14). Dr.
Ettner recommended the immediate initiation of feminizing hormone therapy (Doc. 64-1 at 20).
She further stated that, “[i]ntegral to successful treatment of gender dysphoria is the ability to
present as a female” and,”[t]herefore, Ms. Hicklin should also be allowed access to items and
clothing available to female inmates, and effective, permanent means of body hair removal”
(Doc. 64-1 at 20).
NOS stands for not otherwise specified.
Relevant Policy and Procedures
The MDOC Defendants have provided the Court with limited written policies and
procedures relating to the care of transgender individuals within MDOC custody. First, the
MDOC Defendants provide the Court with the Missouri Department of Corrections Institutional
Services Procedure Manual Procedure IS5-3.1 titled “Offender Housing Assignments” (Doc. 689). The following are the relevant portions of this policy. The MDOC defines a transgender
individual as “[a] person shows a gender identity (i.e., internal sense of feeling male or female) is
different from the person’s assigned gender at birth” (Id. at 1). Each MDOC institution has a
transgender committee comprised of the health service administrator, medical director,
institutional chief of mental health services and the deputy warden or Prison Rape Elimination
Act (PREA) site coordinator (Id.). “The transgender committee is responsible for determining a
permanent housing assignment for each transgender . . . offender, and prior to this assignment
shall meet with each offender to determine his vulnerability within the general population and
length of time living as the acquired gender” (Id. at 3). Of note, the housing policy does not
address any medical issues.
Second, during the Preliminary Injunction Hearing, the MDOC Defendants provided the
Court and opposing counsel with a single paragraph on a sheet of paper without any identifying
information and stated that it was the freeze-frame policy at issue (hereinafter “the Policy”)
(Doc. 77). The Policy of unknown origin reads in its entirety as follows:
[The Prison Rape Elimination Act (PREA)] is designed to keep all offenders safe from
sexual assault and harassment, particularly those at greater risk of sexual victimization.
The Department has adopted and is committed to enforce [sic] PREA zero tolerance of
sexual abuse and harassment by complying with all PREA standards and making every
effort to keep our offenders safe. The Department believes the initiation of Hormone
Replacement Therapy (HRT) is not appropriate in a prison environment. An attempt at
such transition in the prison venue severely compromises the safety of the offender and
places them at substantial risk of sexual abuse and harassment. Therefore, after carefully
balancing the potential benefit of HRT therapy [sic] to an offender, the increased risk to
their personal safety as well as impact on the safety and security of other offenders and
staff, we conclude such therapy is not appropriate in a prison setting and is not approved.
Although HRT therapy [sic] is not approved, Mental Health is directed to and shall
continue to provide all counseling and support deemed necessary.
Third, the MDOC Defendants also indicate that they, in conjunction with Corizon have
developed explicit procedures to respond to inmates with gender dysphoria (Doc. 68 at 6). In
support of this assertion, the MDOC Defendants provide an August 2016 Corizon Memo
regarding “Gender Dysphoria Patients”(Doc. 68-10). In the memo, Corizon outlines its “initial
guidance into the treatment or continuation of treatment for patients with Gender Dysphoria”
(Doc. 68-10). Corizon defines gender dysphoria using the DSM-V definition as provided in full
above (Id. at 2). Relevant to the current case, the memo indicates that the following steps should
be taken when a new diagnosis of Gender Dysphoria is under consideration or suspected, to be
“ruled in or ruled out:”
a. The patient will be scheduled with a Psychiatrist for an evaluation to include a
thorough history and for a consideration of a provisional diagnosis of Gender Dysphoria.
b. Before a diagnosis of Gender Dysphoria can be ruled in, the Gender Dysphoria
Clinical Supervision Group must convene to review the case.
c. During this meeting a review of all medical records, medication records, and
independent reports detailing their findings, and evaluations by site staff must occur, and
a diagnosis of Gender Dysphoria will be ruled in or ruled out.
d. Once the final diagnosis of Gender Dysphoria is ruled in, the individualized medical
and mental health treatment plans will be developed by site health care staff and will then
be forwarded to the Gender Dysphoria Clinical Supervision Group for their review and
e. Once the treatment plans are approved by the Gender Dysphoria Clinical Supervision
Group, they will forward such plans to the DOC Transgender Committee for their review
and subsequent referral to the DOC Central Office.
f. At this time, the patient’s diagnosis should be noted on the problem list and treatment
documented and when implemented with the involvement of the offender within the
electronic medical record.
g. On a case-by-case base, hormonal replacement therapy (HRT) may need to be
considered. In such a situation, the Gender Dysphoria Clinical Supervision Group will be
forward [sic] such decision on to the DOC Transgender Committee for their review and
subsequent referral to DOC Central Office.
h. Upon review, DOC Central Office will provide direction to the DOC Transgender
Committee, and copy the appropriate facility [Health Services Administrator (HSA)],
facility medical director, and the [Intuitional Chief of Mental Health Services (ICMHS)].
i. With the approval of the DOC Central Office, the offender will be scheduled for a
medical evaluation to include a thorough history, complete physical examination, and
baseline laboratory studies and initiate HRT as clinically indicated.
j. Also, if the patient is transferred to another facility, it is expected the sending site HSA
and ICMHS will notify the receiving site’s HSA and ICMHS of this patient, treatment
plan and expectations for fulfilling the requirements of this plan.
(Id. at 4-5). The Gender Dysphoria Clinical Supervision Group is comprised of the healthcare
professionals who are assigned to work with a patient diagnosed with Gender Dysphoria, the
contractual Regional Director of Psychiatry, the appropriate contractual Mental Health Director,
the contractual Regional Medical Director, and a contractual Specialty Physician Consultant
based upon identified need (Id. at 1). This Group meets as needed to conduct an ongoing review
of the management of patients diagnosed with Gender Dysphoria (Id.). Each Department of
Corrections (DOC) institution will have a transgender committee comprised of the health
services administrator (HSA), the medical director, institutional chief of mental health services
(ICMHS) and the deputy warden or prison rape elimination act (PREA) site coordinator (Id. at
2). Defendants also provided a copy of the Corizon Transgender MTF (Male to Female)
Hormone Protocol and Patient Consent form (Id. at 6-7).
Plaintiff’s counsel also indicated during oral argument that it was her understanding that
other individuals were being treated for gender dysphoria, including being given hormone
therapy (Doc. 83 at 9). Although MDOC counsel indicated otherwise, stating at the hearing that
he was not aware, “at this stage of the litigation,” of any other inmates in male facilities
receiving hormone treatment (Id. at 22), the MDOC Defendants admitted in their answer that
“hormone therapy has been provided to transgender inmates in the MDOC” (Doc. 42 at 2).
Internal Grievance Procedure
The parties do not dispute that Ms. Hicklin has exhausted the MDOC’s internal grievance
process (See Doc. 68-2 (Informal Resolution Request Response dated April 27, 2015); Doc. 68-3
(Grievance Response dated June 7, 2015); Doc. 68-4 (Informal Resolution Request Response
dated July 20, 2015); Doc. 68-5 (Grievance Response dated August 12, 2015); Doc. 68-6
(Grievance Response dated August 12, 2015); Doc. 68-7 (Offender Grievance Appeal Response
dated October 21, 2015)). One such grievance response, dated April 27, 2015, although partially
cut off, appears to read, “On that [date,] physician [sic] recorded that per PCC administration,
after discussions between DOC and [Corizon] Health representatives, there are no plans to
proceed with hormone treatment” (Doc. 68-2 at 2). The MDOC Defendants admit that when Ms.
Hicklin met with Defendant Nurse Diana Larkin to discuss whether this grievance could be
resolved through discussion, Defendant Larkin informed Ms. Hicklin that she had received an
email from Dwayne Kempker, previously named in this action as a defendant and the former
Deputy Director, Division of Adult Institutions, MDOC, stating that Ms. Hicklin would not
receive hormone therapy because MDOC policy prohibited an inmate who was not on such
therapy upon entering MDOC from receiving it while in MDOC (Doc. 19 at 21-22; Doc. 42 at
14). Another grievance response, dated August 12, 2015 and signed by Dr. Throop, appears to
read, “The treatment team agre[es] the Standards of Care, in regard to Mental health
professionals helping clients become psych[ologically] prepared in every way as they consider
hormone therapy. This preparation would also include[e] recently being told that you would not
receive hormone therapy treatment, and being able to p[rocess] this news” (Doc. 68-6).
Federal Rule of Civil Procedure 65 gives courts the authority to grant preliminary
injunctions. “A preliminary injunction is an extraordinary remedy never awarded as of right.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (quoting Munaf v. Green, 553 U.S.
674, 689-90 (2008)). “Whether a preliminary injunction should issue involves consideration of
(1) the threat of irreparable harm to the movant, (2) the state of the balance between this harm
and the injury that granting the injunction will inflict on other parties litigant, (3) the probability
that movant will succeed on the merits, and (4) the public interest.” Dataphase Sys., Inc. v. C.L.
Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). Although “‘no single factor is determinative,’ the
probability of success factor is the most significant.” Home Instead, Inc. v. Florance, 721 F.3d
494, 497 (8th Cir. 2013) (quoting Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013))
(internal citations omitted). “The burden of demonstrating that a preliminary injunction is
warranted is a heavy one where, as here, granting the preliminary injunction will give plaintiff
substantially the relief [she] would obtain after a trial on the merits.” Dakota Indus., Inc. v. Ever
Best Ltd., 944 F.2d 438, 440 (8th Cir. 1991). See also Blankenship v. Chamberlain, 2008 WL
4862717, at *2 (E.D. Mo. Nov. 7, 2008) (quoting Kikumura v. Hurley, 242 F.3d 950, 955 (10th
Cir. 2001)) (In seeking a mandatory injunction that disrupts the status quo, the plaintiff “must
demonstrate not only that the four requirements for a preliminary injunction are met but also that
they weigh heavily and compellingly in [her] favor.”).
A. Threat of Irreparable Harm
“The threshold inquiry is whether the movant has shown the threat of irreparable injury.”
Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 738 (8th Cir. 1989) (en
banc). “The failure to show irreparable harm is, by itself, a sufficient ground upon which to deny
a preliminary injunction.” Id. Irreparable harm must be certain and imminent such that there is a
clear and present need for equitable relief. Iowa Utils. Bd. v. F.C.C., 109 F.3d 418, 425 (8th Cir.
1996). Possible or speculative harm is not sufficient. Local Union No. 884, United Rubber,
Cork, Linoleum, & Plastic Workers of Am. v. Bridgestone/Firestone, Inc., 61 F.3d 1347, 1355
(8th Cir. 1995). When there is an adequate remedy at law, a preliminary injunction is not
appropriate. Modern Computer Sys., 871 F.2d at 738.
The Court finds that Plaintiff has met her burden to show the threat of irreparable injury.
Plaintiff asserts that she has and will continue to suffer irreparable harm in the absence of a
preliminary injunction because she suffers from depression, anxiety, and intrusive thoughts of
self-castration as a result of Defendants’ conduct (Doc. 64 at 7-9). Defendants’ assertion that
Ms. Hicklin cannot establish irreparable injury because any injury is merely speculative is
inaccurate (Doc. 69 at 4). The medical records establish that Ms. Hicklin suffers and will
continue to suffer from “panic symptoms” with “active body anxiety, tachycardia, sob, [with]
diaphoresis noted almost daily” (Doc. 64-6 at 5). The record also reflects that these symptoms
are as a result of Ms. Hicklin’s gender dysphoria. Indeed, Plaintiff’s expert, Dr. Ettner indicates,
[The] lack of appropriate treatment for gender dysphoria is causing Ms. Hicklin to
experience serious psychological and physical symptoms including panic attacks,
anxiety, racing heartbeat (tachycardia), shortness of breath, sleep disturbance, lack of
appetite, headaches, and excessive sweating.
(Doc. 64-1 at 16). The records further indicate that Ms. Hicklin’s symptoms have been
worsening and would continue to do so absent treatment for her gender dysphoria. For example,
Dr. Stephens, upon receiving several letters from Ms. Hicklin and after an urgent follow-up
appointment with her, found that Ms. Hicklin suffered from “some increased dysphoria
symptoms with body/facial hair growth . . . and increase in intrusive thoughts to remove testicles
with fear of active male pattern baldness symptoms” (Doc. 64-6 at 36).
The records also establish that Ms. Hicklin is at severe risk of self-harm. While Ms.
Hicklin has consistently indicated that she does not have suicidal ideations or that she will
commit self-harm, she has a history of suicide ideation and has indicated on more than one
occasion the inclination to remove her own testicles. Specifically, “Ms. Hicklin has a history of
suicide ideation and two suicide attempts” (Doc. 64-1 at 13). Ms. Hicklin has also attempted to
remove her testicles with a tourniquet (Doc. 64-1 at 12-13, 16; Doc. 83 at 6). Dr. Ettner notes
that “Ms. Hicklin avoids contact with her genitals, and, typical of incarcerated gender dysphoric
individuals without access to care, she has thoughts of removing them. On one occasion, Ms.
Hicklin tried to amputate her testicles with a tourniquet . . .” (Doc. 64-1 at 16). “Emotional
distress, anxiety, depression and other psychological problems can constitute irreparable injury.”
Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1192 (N.D. Cal.), appeal dismissed and remanded,
802 F.3d 1090 (9th Cir. 2015) (citing Chalk v. U.S. Dist. Ct. Cent. Dist. of California, 840 F.2d
701, 709 (9th Cir. 1988); Stanley v. University of Southern California, 13 F.3d 1313, 1324 n.5
(9th Cir.1994)). See also cf. Reid v. Kelly, No. 5:13CV00249 JLH-JTK, 2013 WL 6231149, at
*2 (E.D. Ark. Dec. 2, 2013) (suggesting self-harm may be sufficient to establish a threat of
Finally, as addressed in more detail below, the deprivation of Ms. Hicklin’s constitutional
rights under the Eighth Amendment is alone sufficient to establish irreparable harm. See Elrod
v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion) (“The loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable injury.”); Michigan
State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 669 (6th Cir. 2016) (internal quotation
marks omitted) (“When constitutional rights are threatened or impaired, irreparable injury is
presumed.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“The district court properly
relied on the presumption of irreparable injury that flows from a violation of constitutional
rights.”); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of
a constitutional right is involved, most courts hold that no further showing of irreparable injury is
Therefore, because Ms. Hicklin has established that she suffers from and will continue to
suffer from severe emotional distress as well as a substantial risk of self-harm and that she has
been deprived of her constitutional rights, Ms. Hicklin has met her burden to show the threat of
B. Likelihood of Success
The Court will next consider the likelihood that Plaintiff will succeed on the merits as the
Eighth Circuit has long held this factor to be the most significant. Dataphase, 640 F.2d at 113.
In considering this factor, the Court need not decide whether Ms. Hicklin, as the moving party,
will ultimately succeed on her claims but, rather, whether Ms. Hicklin has a “fair chance of
success on the merits.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732
(8th Cir. 2008). Here, Ms. Hicklin asserts that she suffers from an objectively serious medical
condition that Defendants, acting with deliberate indifference, have failed to treat in violation of
the Eighth Amendment (Doc. 64 at 13).
“The Eighth Amendment forbids prison officials from ‘unnecessarily and wantonly
inflicting pain’ on an inmate by acting with ‘deliberate indifference’ toward the inmate’s serious
medical needs.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004). The
“deliberate indifference” standard applies to a prisoner's challenge to medical treatment. Wilson
v. Seiter, 501 U.S. 294, 303 (1991). Deliberate indifference has both subjective and objective
components. A plaintiff must show (1) that she suffered from an objectively serious medical
need and (2) that the prison officials actually knew of, but deliberately disregarded, that need.
Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000).
1. Serious Medical Need
First, Ms. Hicklin must demonstrate that she suffers from an objectively serious medical
need. To be objectively serious, the medical need must be “one that has been diagnosed by a
physician as requiring treatment, or one that is so obvious that even a layperson would easily
recognize the necessity for a doctor's attention.” Johnson v. Busby, 953 F.2d 349, 351 (8th Cir.
1991). In this case, Ms. Hicklin asserts that both her diagnosis for gender dysphoria disorder and
her risk of self-harm constitute serious medical needs. Defendants do not contest that Ms.
Hicklin’s gender dysphoria is a serious medical need (Doc. 83 at 24). Regardless, the Court will
engage in the analysis.
The Court finds that Ms. Hicklin suffers from an objectively serious medical need. A
diagnosis of gender dysphoria disorder alone may constitute a serious medical need. See White
v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988) (“We therefore conclude that transsexualism is a
serious medical need.”). See also Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011) (upholding
district court decision recognizing gender identity disorder as a serious medical need); Fields v.
Smith, 712 F. Supp. 2d 830, 862 (E.D. Wis. 2010) (gender identity disorder is a serious medical
need for purposes of the Eighth Amendment), aff’d, 653 F.3d 550 (7th Cir. 2011); Phillips v.
Mich. Dep't of Corr., 731 F. Supp. 792, 800 (W.D. Mich. 1990), aff’d, 932 F.2d 969 (6th Cir.
1991) (same). Two separate psychiatrists diagnosed Ms. Hicklin with gender dysphoria and
noted that she required specific treatment in order to treat her disorder. See Kosilek v. Maloney,
221 F. Supp. 2d 156, 184 (D. Mass. 2002) (finding a gender identity disorder diagnosis by two
doctors to be significant in establishing a serious medical need). Further, upon review of Ms.
Hicklin’s medical records, the Court finds that her gender dysphoria disorder is especially
severe. Id. (D. Mass. 2002) (citing Farmer v. Moritsugu, 163 F.3d 610, 615 (D.C. Cir.1998)).
As addressed in more detail above, as a result of her gender dysphoria, Ms. Hicklin suffers from
the severe symptoms of anxiety, panic attacks, shortness of breath, sleep disturbance, lack of
appetite, headaches, and excessive sweating (See, e.g., Doc. 64-1 at 16). The evidence also
indicates that Ms. Hicklin is at significant risk of self-harm and has attempted on one occasion to
remove her own testicles with a tourniquet (Doc. 64-1 at 12-13, 16; Doc. 83 at 6). De’lonta v.
Angelone (“De’lonta I”), 330 F.3d 630, 634 (4th Cir. 2003) (citing Lee v. Downs, 641 F.2d
1117, 1121 (4th Cir. 1981) (“[P]rison officials have a duty to protect prisoners from selfdestruction or self-injury.”)). See also Soneeya v. Spencer, 851 F. Supp. 2d 228, 244-52 (D.
Mass. 2012) (incarcerated individual with gender identity disorder and history of suicide
attempts and self-mutilation has a serious medical condition).
2. Deliberate Indifference
“In order to demonstrate that a defendant actually knew of, but deliberately disregarded, a
serious medical need, the plaintiff must establish a mental state akin to criminal recklessness:
disregarding a known risk to the inmate’s health.” Allard v. Baldwin, No. 14-1087, 2015 WL
921006, at *3 (8th Cir. Mar. 5, 2015) (internal quotation omitted) (quoting Vaughn v. Gray, 557
F.3d 904, 908 (8th Cir. 2009)). Negligence or medical malpractice does not constitute a
constitutional violation. Estelle, 429 U.S. at 106.
The Court finds that Ms. Hicklin is likely to succeed in establishing that Defendants were
deliberately indifferent to her serious medical need. Ms. Hicklin has presented compelling
evidence that Defendants’ refusal to provide her with hormone therapy after her diagnosis is
based on the Policy rather than on a medical judgment concerning Ms. Hicklin’s specific
Medical professionals, including members of several reviewing committees, are generally
in consensus that Ms. Hicklin requires hormone therapy to treat her gender dysphoria in
accordance with the Standards of Care. Both of Ms. Hicklin’s physiatrists, Dr. Throop and Dr.
Stephens, recommended hormone therapy in accordance with the Standards of Care (See, e.g.,
Doc. 64-6 at 35; Doc. 64-4 at 9, 11). Cf. Smith v. Hayman, 489 F. App’x 544, 547 (3d Cir.
2012) (unpublished) (footnote omitted) (“While in certain circumstances the failure to provide
hormones and other courses of treatment can be constitutionally impermissible, the allegations of
the present case do not show ignorance or an affirmative failure to treat, but rather caution and
diagnostic disagreement. Such circumstances, in the absence of aggravating factors such as
previous GID treatment or even a definitive GID diagnosis, do not rise to the level of
constitutional violation.”). The Gender Dysphoria Clinical Supervision Group also agreed on
appropriate hormone therapy to treat Ms. Hicklin’s gender dysphoria (Doc. 64-6 at 28).
Despite these recommendations, the evidence indicates that the decision to refuse Ms.
Hicklin the hormone therapy rests solely on the Policy. The Policy is mentioned extensively
throughout the medical record as the reason for the refusal to provide Ms. Hicklin with hormone
therapy. For example, after her initial review of Ms. Hicklin, 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” (Doc. 64-4 at 4). However, in an addendum to her notes from the
evaluation, Dr. Throop indicates, “after researching DOC protocols, it was found that
endocrinology consult is NOT the appropriate next step for psychiatry in the [treatment] of
Gender Dysphoria” (Id.). Dr. Stephens also references the Policy multiple times. For example,
Dr. Stephens states in a plan note dated April 22, 2016, “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” (Doc. 64-6 at 21). See also Id.
at 17 (“pending decision on DOC policy of use of hormone treatment of gender dysphoria
diagnosed while incarcerated”). The MDOC Defendants also admit that when Ms. Hicklin met
with Defendant Nurse Diana Larkin to discuss whether one of her grievances could be resolved
through discussion, Defendant Larkin informed Ms. Hicklin that she had received an email from
Dwayne Kempker, the former Deputy Director, Division of Adult Institutions, MDOC, stating
that Ms. Hicklin would not receive hormone therapy because MDOC policy prohibited an inmate
who was not on such therapy upon entering MDOC from receiving it while in MDOC (Doc. 19
at 21-22; Doc. 42 at 14). The denial of hormone therapy based on a blanket rule, rather than an
individualized medical determination, constitutes deliberate indifference in violation of the
Eighth Amendment. See, e.g., Kosilek v. Spencer, 774 F.3d 63, 91 (1st Cir. 2014) (en banc);
Fields v. Smith, 653 F.3d 550, 556-57 (7th Cir. 2011); De’lonta I, 330 F.3d at 635; Allard v.
Gomez, 9 Fed.Appx. 793, 794 (9th Cir. 2001) (unpublished).
The MDOC Defendants do not contest that the medical staff at PCC recommends
hormone therapy for Ms. Hicklin nor do they appear to dispute that the treatment was denied
based on the Policy, instead they argue, “there is an important distinction to be made between
what medical professionals recommend and what the federal constitution requires” (Doc. 68 at
12). Citing Smith v. Rasmussen, 249 F.3d 755 (8th Cir. 2001), a case upholding a state Medicaid
regulation prohibiting payment for sex reassignment surgery, the MDOC Defendants specifically
assert that “[t]here is no constitutional right to sex-reassignment therapy” (Id. at 7). Reliance of
Rasmussen is misplaced here and Plaintiff has not asked for surgery (Id.). The MDOC
Defendants also argue, citing portions of a report entitled, “Sexuality and Gender: Findings from
the Biological, Psychological, and Social Services,” by Dr. Lawrence S. Mayer and Dr. Paul R.
McHugh, that “there is a legitimate disagreement in the scientific community about what
treatment is or is not appropriate for a patient with gender dysphoria” (Doc. 68 at 13). Similarly,
the Corizon Defendants indicate that they have not “refused the particular care that Plaintiff
seeks” but that this is, “at best, merely . . . a disagreement regarding treatment decisions that
have been made” (Doc. 69 at 3). Defendants assert that Plaintiff is receiving extensive and
continuing medical and psychological care for her gender dysphoria, “far more than that could
possibly be required by the federal Constitution” (Doc. 68 at 1). See also id. at 9-10 (“Plaintiff
has not shown that the medical and psychological care and counseling she has received and
continues to receive somehow amounts to ‘cruel and unusual punishment.’”).
Defendants’ decision to provide “some treatment” is inadequate and, therefore, not
constitutional. De’lonta v. Johnson (De’lonta II), 708 F.3d 520, 526 (4th Cir. 2013) (emphasis
in original). See also Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (internal quotation
marks omitted) (“[A] total deprivation of care is not a necessary condition for finding a
constitutional violation: Grossly incompetent or inadequate care can also constitute deliberate
indifference . . . .”). As aptly put by the District Court of Massachusetts, “if [Ms. Hicklin] had
cancer, and was depressed and suicidal because of that disease, the DOC would discharge its
duty to [her] under the Eighth Amendment by treating both [her] cancer and [her] depression.”
Kosilek v. Maloney, 221 F. Supp. 2d 156, 188 (D. Mass. 2002) (emphasis added). See also e.g.,
Kothmann v. Rosario, 558 F. App’x 907, 910 (11th Cir. 2014) (unpublished) (denying qualified
immunity to prison official who denied transgender prisoner hormone therapy while providing
anti-anxiety and anti-depression medications, mental health counseling, and psychotherapy
treatments); De’lonta II, 708 F.3d at 526 (finding counseling and anti-depressants insufficient as
defendants had not clearly demonstrated that this treatment was provided for the purpose of
alleviating plaintiff’s self-harm or that it was deemed to be a reasonable method of preventing
further mutilation); Fields, 653 F.3d at 556 (“Although DOC can provide psychotherapy as well
as antipsychotics and antidepressants, defendants failed to present evidence rebutting the
testimony that these treatments do nothing to treat the underlying [gender dysphoria].”);
Soneeya, 851 F. Supp. 2d at 246-50 (blanket ban on laser hair removal and surgery was
deliberately indifferent even though transgender plaintiff was receiving some treatment,
including psychotherapy and hormones). Accordingly, while Defendants are correct in their
assertion that Ms. Hicklin is not constitutionally entitled to the treatment of her choice, the
treatment must nevertheless be adequate to address the prisoner’s serious medical need. See cf.
Reid v. Griffin, 808 F.3d 1191, 1192-93 (8th Cir. 2015) (finding plaintiff unable to establish that
the defendants’ conduct amounted to deliberate indifference when plaintiff was not diagnosed
with gender identity disorder and the medical records and physician affidavits indicated that the
care provided was adequate). In light of treating physicians’ recommendations, psychiatric care
and counseling alone are constitutionally inadequate to address Ms. Hicklin’s gender dysphoria.
The Court further finds that Ms. Hicklin is likely to succeed on the merits as to her
requests to have access to “gender-affirming” canteen items and permanent hair removal.
Pursuant to the Standards of Care, individualized treatment for gender dysphoria may include
living in the gender role that is consistent with one’s gender identity (Doc. 64-1 at 6). In line
with and specifically noting the Standards of Care, Dr. Stephens suggested that Ms. Hicklin be
given the opportunity to live as her desired gender (See 64-6 at 6, 15). In order to accomplish
this, 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]” (Id. at 5). Dr. Stephens
also endorsed the use of medication to prevent hair loss and treatment for hair removal (Id. at
35). Specifically, Dr. Stephens notes, on September 20, 2016, “[g]iven this increased agitation,
self harm [sic] thoughts and reported active symptoms of male pattern baldness will refer to
gender dysphoria committee to consider dermatology referral and treatment for hair loss (head)
and removal (body) as at this time symptoms [constitute] medical necessity” (Doc. 64-6 at 35).
The basis of the denial of these items is unclear from the record. At one point, in response to an
internal grievance, Nurse Wade indicates Dr. Babich, Associate Regional Medical Director,
stated that various forms of permanent hair removal were “not medically necessary” (Doc. 68-4
at 2). However, as discussed above, the medical evidence does not support this blanket assertion
and the case law is clear—“gender-affirming” canteen items and permanent hair removal are not
merely cosmetic treatments but, instead, medically necessary treatments to address a serious
medical disease. See Alexander v. Weiner, 841 F. Supp. 2d 486, 493 (D. Mass. 2012) (finding
plaintiff sufficiently asserted factual allegations to support a claim of deliberate indifference to
survive a motion to dismiss when she alleged that she was prescribed laser hair removal and/or
electrolysis on at least three occasions but defendants “repeatedly ignored treatment prescriptions
given to [p]laintiff by her doctors”). See also Soneeya, 851 F. Supp. 2d at 247 (finding the
department of corrections’ blanket policy prohibiting, among other things, laser hair removal to
be unconstitutional and, therefore, entering a permanent injunction enjoining the department of
corrections from enforcing it); Konitzer v. Frank, 711 F. Supp. 2d 874, 909 (E.D. Wis. 2010)
(finding modest makeup, female undergarments, facial hair remover, and hair growth stimulators
to be “part of the real-life experience” required under the applicable standards of care such that
sufficient evidence supported the conclusion that these items may be medically necessary to
survive summary judgment).
Accordingly, the Court finds that Ms. Hicklin is likely to succeed on the merits as to her
Eighth Amendment claim that Defendants were deliberately indifferent by failing to provide her
with hormone therapy, “gender-affirming” canteen items, and permanent hair removal to treat
her serious medical of gender dysphoria.
C. Balance of Harms
In considering the equities of a preliminary injunction, courts “must balance the
competing claims of injury and must consider the effect on each party of the granting or
withholding of the requested relief.” Winter, 555 U.S. at 24. “In exercising their sound
discretion, courts of equity should pay particular regard for the public consequences in
employing the extraordinary remedy of injunction.” Id.
The balance of harms substantially weighs in favor of granting injunctive relief to Ms.
Hicklin. Ms. Hicklin has met her heavy burden to establish that she continues to face irreparable
injury absent relief, as addressed in more detail above, including the denial of her constitutional
rights. Conversely, the MDOC Defendants contend that they will be harmed, as addressed for
the first time during oral argument, by considerations of safety both for Ms. Hicklin as well as
other inmates, suggesting that any gender-identity transition places her at substantial risk of
sexual abuse and harassment (Doc. 77; Doc. 83 at 17-22). The MDOC Defendants have also
tangentially raised the issue of cost (See, e.g., Doc. 68 at 12). The Court is cognizant that
Defendants have the difficult task of ensuring staff and inmate safety and security, and
appropriate medical care for those incarcerated. However, the challenge of housing thousands of
inmates safely cannot impede on the constitutional rights of the individuals in MDOC custody.
The Court finds the MDOC Defendants’ assertions particularly unavailing in this case because
the limited evidence reflects that other inmates within the MDOC system have received hormone
therapy. And MDOC Defendants have accommodated Plaintiff by giving her the option to
shower without male inmates present (Doc. 83 at 18). Therefore, the Court cannot determine
that the MDOC Defendants’ decision to deny Ms. Hicklin the medical care she seeks is based on
substantiated penological concerns. Cf. Kosilek v. Spencer, 774 F.3d 63, 83 (1st Cir. 2014)
(internal citations and quotation marks omitted) (“‘Wide-ranging deference’ is accorded to
prison administrators in the adoption and execution of policies and practices that in their
judgement are needed to maintain institutional security. In consequence, even a denial of care
may not amount to an Eighth Amendment violation if that decision is based in legitimate
concerns regarding prisoner safety and institutional security.”). Similarly, the MDOC
Defendants’ assertions regarding cost are unsupported by specifics. MDOC is already
providing—or has provided—this treatment to other inmates and did not provide the Court with
any information regarding the cost of these treatments for the Court’s consideration.13
Accordingly, the Court finds the balance of harms weighs heavily in favor of Ms. Hicklin.
D. The Public Interest
Finally, the public interest weighs strongly in favor of issuing the preliminary injunction.
Ms. Hicklin seeks to protect her constitutional rights (Id. at 14). “[I]t is always in the public
interest to prevent the violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d
990, 1002 (9th Cir. 2012).
E. The Policy
Additionally, as relief in her Motion for Preliminary Injunction, Ms. Hicklin requests the
Court enter an order “enjoining Defendants from enforcing the policies, customs, or practices
that have served as a moving force behind their constitutional violations by denying inmates with
gender dysphoria individualized medically necessary treatment and care, contrary to widely
accepted standards of care and the recommendations of Ms. Hicklin’s treating mental health
professionals” (Doc. 64 at 19). Although unclear as to the precise meaning of this request, Ms.
Hicklin appears to suggest that the Policy is itself unconstitutional and the MDOC Defendants
should be enjoined from enforcing it. The Court notes that the Policy categorically restricts
inmates who are diagnosed with gender dysphoria after entering the MDOC from receiving
hormone treatment. There does not appear to be any rational relationship between the Policy and
a legitimate governmental interest or penological purpose especially in light of the evidence
By illustration, as noted by the Seventh Circuit, “[i]n 2004, [the Wisconsin Department
of Corrections (DOC)] paid a total of $2,300 for hormones for two inmates. That same year,
DOC paid $2.5 million to provide inmates with quetiapine, an antipsychotic drug which costs
more than $2,500 per inmate.” Fields, 653 F.3d at 555.
indicating that other inmates in the MDOC system receive hormone therapy. Turner v. Safley,
482 U.S. 78, 89 (1987). Further, failure to conduct an individualized review of a prisoner’s
needs may violate the Eighth Amendment. Kosilek v. Spencer, 774 F.3d 63, 91 (1st Cir. 2014)
(citing Roe v. Elyea, 631 F.3d 843, 863 (7th Cir. 2011)) (any blanket policy regarding sex
reassignment surgery would conflict with the requirement that medical care be individualized
based on a particular prisoner’s serious medical needs and that such a failure may violate the
Eighth Amendment). See also Fields, 653 F.3d at 556 (finding blanket law denying access to
hormone treatment to be unconstitutional; “Refusing to provide effective treatment for a serious
medical condition serves no valid penological purpose and amounts to torture.”). However, Ms.
Hicklin does not raise this issue in her Complaint nor did any of the Parties present argument on
this claim either in their briefs or before the Court during the hearing.
The Court has considered the entire record and the arguments presented at the hearing on
this matter. Based upon the foregoing consideration of all of the Dataphase factors, the Court
finds that Ms. Hicklin is entitled to a preliminary injunction that Defendants’ provide Ms.
Hicklin with care that her doctors deem to be medically necessary treatment for her gender
dysphoria, including hormone therapy, access to permanent body hair removal, and access to
“gender-affirming” canteen items. However, Ms. Hicklin’s has failed to meet her burden to
warrant a preliminary injunction as to the Policy in general.
Federal Rule of Civil Procedure 65(c)’s instruction that “[n]o restraining order or
preliminary injunction shall issue except upon the giving of security by the applicant, in such
sum as the court deems proper” has long been interpreted to mean that a district court has
discretion to grant injunctive relief without requiring bond or other security, especially when
doing so would function to bar poor people from obtaining judicial redress. See, e.g., Doctor’s
Assocs., Inc. v. Stuart, 85 F.3d 975, 985 (2d Cir. 1996); Kaepa, Inc. v. Achilles Corp., 76 F.3d
624, 628 (5th Cir. 1996); Miller v. Carlson, 768 F. Supp. 1331 (N.D. Cal.1991); Brown v. Artery
Org., Inc., 691 F. Supp. 1459, 1462 (D.D.C. 1987). In this case, Ms. Hicklin is incarcerated and
appears to lack sufficient resources from which to provide security. Requiring a bond in this
case would effectively bar Ms. Hicklin from obtaining injunctive relief. Therefore, the Court
will grant injunctive relief without requiring bond or other security. See Johnson v. Bd. of Police
Comm’rs, 351 F. Supp. 2d 929, 952 (E.D. Mo. 2004)(“[A] district court has discretion to grant
injunctive relief without requiring bond or other security, especially when doing so would
function to bar poor people from obtaining judicial redress.”).
IT IS HEREBY ORDERED that Plaintiff First Motion to Supplement (Doc. 88) is
GRANTED and Plaintiff’s Second Motion to Supplement (Doc. 98) is DENIED.
IT IS FURTHER ORDERED that Plaintiff Jessica Hicklin’s Motion for Preliminary
Injunction (Doc. 63) is GRANTED, in part and DENIED, in part.
The Court has carefully considered Plaintiff’s specific requests for relief and finds the
following injunctive relief to be appropriate:
(1) Defendants are directed to provide Ms. Hicklin with care that her doctors deem to be
medically necessary treatment for her gender dysphoria, including hormone therapy,
access to permanent body hair removal, and access to “gender-affirming” canteen items.
Dated this 9th day of February, 2018.
/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE
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