Case: 2:13-cv ALM-MRA Doc #: 44 Filed: 04/01/14 Page: 1 of 13 PAGEID #: 428

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1 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 1 of 13 PAGEID # 428 ANTIONE S. LEE, vs. IN THE UNITED STATES DISTRICT COURT SOUTHERN DISRICT OF OHIO EASTERN DIVISION COLUMBUS, OHIO Plaintiff, BRAD ELLER, et. al, Defendants. Case No. 213-cv-87 Judge Algenon L. Marbley Magistrate Judge Mark R. Abel MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION ORAL HEARING REQUESTED Plaintiff Antione Whitney Lee is a transgendered inmate who is suffering continuous harm because of Defendants refusal to provide her with medically necessary hormone treatment. Pursuant to Fed. R. Civ. P. 65, and for the reasons enumerated in the accompanying Memorandum of Law, Ms. Lee moves this Court for a Temporary Restraining Order or Preliminary Injunction to enjoin Defendants from withholding constitutionally required medical care. A Memorandum of Law in support of this Motion is attached. /s/ Ngozi V. Ndulue Ngozi V. Ndulue # Rickell L. Howard # Trial Attorney for Plaintiff David A. Singleton # Co-counsel for Plaintiff Ohio Justice & Policy Center 215 E. 9th Street, Suite 601 Cincinnati, Ohio ext (fax) nndulue@ohiojpc.org rhoward@ohiojpc.org dsingleton@ohiojpc.org

2 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 2 of 13 PAGEID # 429 I. FACTS MEMORANDUM OF LAW Plaintiff Antione Whitney Lee has been incarcerated in Ohio Department of Rehabilitation and Correction ( ODRC ) institutions since January 30, Ms. Lee is a 35-year-old inmate who suffers from gender dysphoria. Despite Ms. Lee s more than fifteen-year history of hormone treatment for this disorder, ODRC abruptly stopped her hormone therapy and continues to refuse to treat Ms. Lee for this serious medical condition. A. Gender dysphoria is a recognized medical disorder that is amenable to treatment. Gender dysphoria is a medical disorder defined as [a] marked incongruence between one s experienced/expressed gender and assigned gender, of at least 6 months duration that is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning. American Psychiatric Ass n, Diagnostic & Statistical Manual of Mental Disorders (5th ed. 2013) (hereinafter DSM V ). 1 Without treatment, gender dysphoria can result in severe, life-long consequences including anxiety, depression, and suicide. (Declaration of Dr. Kayla Springer at 7, attached as Exhibit 2.) However, [g]ender dysphoria can in large part be alleviated through treatment. See Eli Coleman et al., Standards of Care for the Health of 1 In previous versions of the DSM, gender dysphoria was referred to as gender identity disorder and transexualism. See Kothmann v. Rosario, F. App x, 2014 WL , at *5 n.2 (11th Cir. Mar. 7, 2014); Phillips v. Michigan Department of Corrections, 731 F. Supp. 792, 799 (W.D. Mich. 1990); Peggy T. Cohen-Kettenis and Friedemann Pfäfflin, The DSM Diagnostic Criteria for Gender Identity Disorder in Adolescents and Adults, Archives of Sexual Behavior (2009), available at http// 2

3 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 3 of 13 PAGEID # 430 Transsexual, Transgender, and Gender-Nonconforming People, Version 7, World Professional Association for Transgender Health, 13 Int l J. of Transgenderism 165, 168 (2011) (hereinafter Standards of Care ) available at http// Hormone therapy is an established treatment for gender dysphoria that, for many persons living with gender dysphoria, is medically necessary. Standards of Care at 186. B. Ms. Lee has a long history of hormone treatment for gender dysphoria. Since adolescence, Ms. Lee has felt that despite being biologically male, her true identity is female. (February 12, 2014, Declaration of Antione Whitney Lee at 3-8, attached as Exhibit 1.) Ms. Lee began dressing and grooming herself as a woman when she was a teenager, and she began living as a woman at the age of 18. (Ex. 1. at 3-8.) In 1997, when she was 19 years old, Ms. Lee began hormone treatment for gender dysphoria, but this treatment was disrupted by her incarceration. (Ex. 1. at 9.) Ms. Lee restarted hormone treatment in 1999 and continued to receive that treatment for the next 13 years. (Ex. 1. at 15.) Her treatment continued during a incarceration during which ODRC approved estrogen hormone therapy. (Ex. 1 at ) She also received hormones while incarcerated in federal prison, at the Hamilton County Justice Center, and while she was at liberty in the community. (Ex. 1. at ) As a result of Ms. Lee s treatment, her skin and voice softened, she developed breasts, and she was unable to grow facial hair or have erections. (Ex. 1 at 13.) Ms. Lee looked like the woman that she felt was her true identity. (Ex. 1-A, Photographs of Whitney Lee.) Upon entering ODRC in January 2012 and under the supervision of the medical personnel at ODRC s Correctional Reception Center (CRC), Ms. Lee s hormone therapy 3

4 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 4 of 13 PAGEID # 431 was initially continued at the same dosage she received prior to incarceration. (Ex. 1 at 20.) At the direction of ODRC s medical director, Dr. Andrew Eddy, Ms. Lee s hormone therapy was discontinued in February (Ex. 1 at 21; Doc at PageID 284.) This abrupt withdrawal wreaked havoc on Ms. Lee. She has lost breast tissue; her voice has deepened; her skin has become coarser; she has started to grow facial hair; and she has begun experiencing erections. (Ex. 1 at 24.) The lack of treatment has also affected her emotional state. Ms. Lee has become more irritable and angry. (Ex. 1 at 25.) She has also become more depressed and hopeless. (Ex. 1 at 26.) Although she is taking anti-depressants, Ms. Lee has contemplated suicide and was placed on suicide watch in May (Ex. 1. at 26.) As Ms. Lee explains, every time I look in the mirror and see my body turned back to a man s, I become more stressed out, irritated, and depressed. (Ex. 1. at 26.) Ms. Lee has recently been evaluated by Dr. Kayla Springer, a practitioner with decades of experience in treating gender dysphoria. (Ex. 2 at 1-5.) Dr. Springer reviewed available medical records, met with Ms. Lee s mother and met with Ms. Lee for 2.5 hours. (Ex. 2 at 8.) Based on her evaluation, Dr. Springer concluded that Ms. Lee suffers from gender dysphoria and that hormone therapy is a necessary part of her treatment for this condition. (Ex. 2 at 7.) Dr. Springer found that ODRC s refusal to provide hormone therapy was inappropriate given Ms. Lee s history of gender dysphoria and hormone treatment. (Ex. 2 at 32.) Dr. Springer further concluded that Ms. Lee will suffer continued distress as long as hormone therapy is withheld. (Ex. 2 at ) 4

5 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 5 of 13 PAGEID # 432 III. LEGAL ARGUMENT In determining the appropriateness of granting a temporary restraining order or preliminary injunction, the Court must balance the following four factors (1) whether the plaintiff has shown a substantial likelihood of success on the merits; (2) whether the injunction is necessary to prevent the plaintiff from suffering irreparable injury; (3) whether the injunction would harm others; and (4) whether the public interest would be served by the injunction. Deja Vu of Nashville, Inc. v. Metro. Govt. of Nashville & Davidson County, Tenn., 274 F.3d 377, 400 (6th Cir. 2001). Even if the court is not certain that plaintiff is likely to succeed on the merits, a temporary restraining order or preliminary injunction is still appropriate where the plaintiff shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if the injunction is issued. Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009) (quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 104 (6th Cir.1982)). A. Ms. Lee has a substantial likelihood of success on the merits. The Eighth Amendment of the United States Constitution protects prisoners from cruel and unusual punishment. U.S. Const., Am. VIII. Under this constitutional provision, prison officials cannot allow inmates to needlessly suffer. [H]aving stripped [inmates] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course. Harrison v. Ash, 539 F. 3d 510, 518 (6th Cir. 2008) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994) (second alteration in original)). The United States Supreme Court has recently held that [a] prison that deprives prisoners of basic 5

6 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 6 of 13 PAGEID # 433 sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. Brown v. Plata, 131 S. Ct. 1910, 1928 (2011). There are two components of an Eighth Amendment claim for denial of inmate medical care. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000). The objective component requires the existence of a sufficiently serious medical need. Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004) (quoting Farmer, 511 U.S. at 834). The subjective component requires the inmate to show that prison officials had a sufficiently culpable state of mind in denying care. Brown, 207 F.3d at 867 (quoting Farmer, 511 U.S. at 834). To satisfy the subjective component, the inmate must show that prison officials acted with deliberate indifference to her serious medical needs. Blackmore, 390 F.3d at Deliberate indifference means something more than mere negligence, Farmer, 511 U.S. at 835, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Id. 1. Ms. Lee s medical condition is sufficiently serious to meet the objective component of her Eighth Amendment claim. Ms. Lee s claim satisfies the objective prong of the Eighth Amendment standard because her gender dysphoria constitutes a serious medical need. A serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor s attention. McCarthy v. Place, 313 F. App x 810, 814 (6th Cir. 2008) (quoting Harrison v. Ash, 539 F. 3d 510, 518 (6th Cir. 2008)). 6

7 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 7 of 13 PAGEID # 434 A number of courts have considered the medical needs faced by inmates suffering from gender dysphoria. These courts have recognized the consequences of leaving this condition untreated. As a result, courts have consistently found that gender dysphoria (often referred to as transsexualism) is a sufficiently serious medical need for purposes of an Eighth Amendment claim for denial of medical care. See Murray v. United States Bureau of Prisons, 106 F. 3d 401, 1997 WL (6th Cir. 1997) (unpublished table decision) (recognizing that transsexualism is a recognized medical disorder, and transsexuals often have a serious medical need for some sort of treatment ); Phillips v. Michigan Department of Corrections, 731 F. Supp. 792, 799 (W.D. Mich. 1990) (concluding that transsexualism and GIDAANT [( gender identity disorder of adolescence or adulthood, non-transsexual type )] are serious psychiatric disorders with profound emotional and physical effects. ), aff d, 932 F.2d 969 (6th Cir. 1991); see also Cuoco v. Moritsugu, 222 F. 3d 99, 106 (2nd Cir. 2000) (citing with approval the 7 th Circuit s categorization of transsexualism as a serious medical need); Meriwether v. Faulkner, 821 F. 2d. 408, (7th Cir. 1987) ( There is no reason to treat transsexualism differently than any other psychiatric disorder thus [the inmate s] complaint does state a serious medical need. ); White v. Farrier, 849 F. 2d 322, 325 (8th Cir. 1988) (concluding that transsexualism is a serious medical need). In Phillips v. Michigan Department of Corrections, a Michigan district court granted a preliminary injunction to a plaintiff whose hormone therapy was discontinued by prison officials. 731 F. Supp Phillips was diagnosed with either transsexualism or GIDAANT, gender dysphoric diagnoses that existed under the Diagnostic and Statistic 7

8 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 8 of 13 PAGEID # 435 Manual of the time. Id. at Regardless of the nomenclature, the court recognized Phillips s serious medical need The essence of both disorders result in a human who experiences distress about one of the most striking parts of our identity whether we are male or female. The medical testimony was clear that transsexualism and GIDAANT are serious psychiatric disorders with profound emotional and physical effects. Id. at 800. Like Phillips, Ms. Lee suffers from a disorder that affects the core of her identity and that seriously affects her emotional and physical wellbeing. From a young age, Ms. Lee has recognized that her true identity is female, and she has sought hormone treatment to alleviate the gap between her self-perception and her natal sex. (Ex. 1 at 3-19; Ex. 2 at 30.) She has received hormone treatment for gender dysphoria for over fifteen years from a number of prescribing authorities, including the medical director of the Hamilton County Justice Center, correctional healthcare staff of the Federal Bureau of Prisons, and correctional healthcare staff at ODRC during a previous incarceration. (Ex. 1 at 16.) Without treatment for her gender dysphoria, Ms. Lee feels depressed, anxious, and irritable. She has even become suicidal. (Ex. 1 at ) The lack of treatment has also taken a physical toll on Ms. Lee, reversing the effects of years of hormone treatment. (Ex. 1 at 24.) Deprivation of hormone treatment wreaks havoc on Ms. Lee s physical and mental health and puts her life in danger. Thus, one does not need to be a physician to see the effects of this disorder on Ms. Lee. Phillips, 731 F. Supp. at 800. Given the serious physical and psychological effects of Ms. Lee s untreated gender dysphoria, her medical condition is sufficiently serious for purposes of her Eighth Amendment constitutional claim. 8

9 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 9 of 13 PAGEID # Ms. Lee s claim satisfies the subjective prong of the Eighth Amendment standard because Defendants demonstrated deliberate indifference in denying Ms. Lee treatment. Ms. Lee s claim also satisfies the subjective prong of the Eighth Amendment standard because Defendants had a sufficiently culpable state of mind in denying care. Brown, 207 F.3d at 867 (internal citations omitted). In Murray v. United States Bureau of Prisons, the Sixth Circuit held that [s]ince transsexualism is a recognized medical disorder, and transsexuals often have a serious medical need for some sort of treatment, a complete refusal by prison officials to provide a transsexual with any treatment at all would state an Eighth Amendment claim for deliberate indifference to medical needs WL 34677, at *3; see also Fields v. Smith, 653 F.3d 550, 556 (7th Cir. 2011) (recognizing that for certain patients with [gender identity disorder], hormone therapy is the only treatment that reduces dysphoria and can prevent the severe emotional and physical harms associated with it ). Further, the Phillips court found that when a transsexual inmate had been receiving estrogen hormone therapy for an extensive period prior to incarceration, defendant s conduct actually reversed the therapeutic effects of previous treatment. Phillips, 731 F. Supp. at 800. The court found this worse than not starting treatment at all, noting that [t]aking measures which actually reverse the effects of years of healing medical treatment [makes] the cruel and unusual determination much easier. Id.; see South v. Gomez, 211 F.3d 1275, 2000 WL , at *2 (9th Cir. 2000) (unpublished table decision) (holding that the abrupt discontinuation of hormone treatment can constitute deliberate indifference); Wolfe v. Horn, 130 F. Supp.2d 648 (E.D. Pa. 2001) (same). 9

10 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 10 of 13 PAGEID # 437 As in Murray, Ms. Lee s hormone therapy was terminated and Defendant Dr. Eddy refuses to provide Ms. Lee with treatment of any kind. Dr. Eddy was aware that Ms. Lee was diagnosed with gender dysphoria prior to incarceration. Dr. Eddy was also aware that Ms. Lee received estrogen hormone therapy prior to January 2012, as ODRC previously administered it to treat Ms. Lee s gender dysphoria. (Ex. 1 at 18-19; Doc ) In addition, she received estrogen hormone therapy during her first month of incarceration. (Ex. I at 20.) Despite the fact that Ms. Lee has a long-standing history of hormone therapy treatment, in February 2012, this therapy was arbitrarily and abruptly discontinued. (Ex. I at ) Dr. Eddy refuses to approve estrogen hormone therapy, and Ms. Lee continues to be denied treatment for her gender dysphoria. (Ex. I at 28.) These facts alone are sufficient to draw the inference that Defendants acted with deliberate indifference to Ms. Lee s serious medical need. Additionally, the sudden withdrawal of hormone therapy has in fact reversed years of medical treatment. Years of hormone therapy had caused significant changes in Ms. Lee s appearance. The hormones softened her skin and her voice. They caused her breasts to develop, stopped facial hair from growing and stopped her from having erections. (Ex. 1 at 13; Ex. 1-A.) Without hormone treatment, all of these gains have been lost, and Ms. Lee has reverted to a more masculine appearance. (Ex. 1 at 24-26, 29.) These physical changes have led to predictable psychological distress. (See Ex. 2 at 12 ( Without this therapy, many transgender individuals will experience distress because their physical appearance is at odds with a fundamental part of their selfimage. ).) Ms. Lee explains that, Defendants have destroyed my body and made me feel like a stranger to myself. (Ex. 1 at 24.) Ms. Lee is in a constant state of 10

11 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 11 of 13 PAGEID # 438 depression, and her emotional state has deteriorated to the extreme of contemplating suicide. (Ex. 1 at 24-26, 29.) Thus, Defendants refusal to provide hormone treatment amounts to deliberate indifference to Ms. Lee s serious medical need in violation of the Eighth Amendment. Both the objective and subjective prongs of Ms. Lee s Eighth Amendment claim have been met, and Ms. Lee is substantially likely to prevail on the merits. B. Ms. Lee will suffer irreparable harm absent an injunction. Absent the injunctive relief she requests, Ms. Lee will continue to suffer irreparable harm in the form of extreme psychological distress from her untreated gender dysphoria. See Hadix v. Caruso, 461 F.Supp.2d 574, 598 (W.D. Mich. 2006) (preliminary injunction granted after court finds that the Eighth Amendment violations cause irreparable harm, including unnecessary pain and aggravation of injury ). In her declaration, Dr. Springer has explained the problems created by Ms. Lee s lack of treatment Whitney is experiencing a continuing challenge to her core identity. The changes to her body have widened the gap between how she perceives herself and how others see her and relate to her. This incongruence threatens Whitney s emotional stability and her ability to maintain a cohesive sense of self. (Ex. 2 at 34.) Without this Court s intervention, Ms. Lee s suffering will continue. C. The harm Ms. Lee will continue to suffer if an injunction is not granted greatly outweighs any harm to others. As discussed above, if an injunction is not granted, Ms. Lee will continue to suffer and risk of permanent injury. Ms. Lee has received hormone therapy in ODRC without harm to Defendants or any others. The harm to others, if injunctive relief is granted, is non-existent. 11

12 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 12 of 13 PAGEID # 439 D. The public interest favors the granting of the injunction. Finally, it is always in the public interest to prevent violation of a party s constitutional rights. G & V Lounge, Inc. v. Michigan Liquor Control Com'n, 23 F.3d 1071, 1079 (6th Cir. 1994). Here, Ms. Lee s Eighth Amendment right to be free from cruel and unusual punishment is being violated. The public interest will be served by the granting of an injunction requiring Defendants to provide her with the medical care she urgently requires. IV. CONCLUSION For the reasons discussed above, this Court should grant Ms. Lee s Motion for Temporary Restraining Order or Preliminary Injunction. Respectfully submitted, /s/ Ngozi V. Ndulue Ngozi V. Ndulue # Rickell L. Howard # Trial Attorney for Plaintiff David A. Singleton # Co-counsel for Plaintiff Ohio Justice & Policy Center 215 E. 9th Street, Suite 601 Cincinnati, Ohio ext (fax) nndulue@ohiojpc.org rhoward@ohiojpc.org dsingleton@ohiojpc.org 12

13 Case 213-cv ALM-MRA Doc # 44 Filed 04/01/14 Page 13 of 13 PAGEID # 440 CERTIFICATE OF SERVICE I certify that on April 1, 2014, a copy of the foregoing Plaintiff s Motion for Temporary Restraining Order or Preliminary Injunction was filed electronically. Notice of this filing will be sent to all parties by operation of the court s electronic filing system. Additionally, I served a copy of the foregoing Motion by on Assistant Attorney General Caitlyn A. Nestleroth at Caitlyn.Nestleroth@OhioAttorneyGeneral.gov. /s/ Ngozi V. Ndulue Ngozi V. Ndulue 13