Petition for Writ of Certiorari — Joseph J. Roybal, Sheriff, El Paso County, Colorado, et al., Petitioners v. Darlene Griffith
Supreme Court briefOct 7, 2025
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No. 25-____
In the Supreme Court of the United States
JOSEPH J. ROYBAL, in his official capacity; and ANDREW MUSTAPICK, in his individual capacity,
Petitioners,
v.
DARLENE GRIFFITH,
Respondent.
On Petition for Writ of Certiorari to the U.S.
Court of Appeals for the Tenth Circuit
PETITION FOR WRIT OF CERTIORARI
MICHAEL FRANCISCO
JULIAN R. ELLIS, JR.
FIRST & FOURTEENTH, PLLC Counsel of Record
800 Connecticut Avenue
CHRISTOPHER O. MURRAY
LAURA J. ELLIS
NW, Suite 300
Washington, DC 20006
FIRST & FOURTEENTH, PLLC
(202) 998-1978
2 N. Cascade Avenue,
Suite 1430
Colorado Springs, CO 80903
(719) 428-4937
julian@first-fourteenth.com
Attorneys for Petitioners
(additional counsel listed on inside cover)
NATHAN J. WHITNEY
First Asst. County Attorney
STEVEN W. MARTYN
Senior County Attorney
EL PASO COUNTY
ATTORNEY’S OFFICE
200 S. Cascade Avenue
Colorado Springs, CO 80903
(719) 520-6485
HEIDI K. WILLIAMS
Senior County Attorney/
Sheriff’s Legal Advisor
EL PASO COUNTY
SHERIFF’S OFFICE
27 East Vermijo Avenue
Colorado Springs, CO 80903
(719) 520-7264
i
QUESTIONS PRESENTED
1. Whether a transgender inmate’s challenge to
sex-based prison policies is subject to heightened scrutiny under United States v. Virginia, 518 U.S. 515
(1996), as the Eighth, Ninth, and Tenth Circuits hold,
or subject to the deferential standard of “reasonable
relationship to legitimate penological interests” under
Turner v. Safley, 482 U.S. 78 (1987), as the Second,
Fourth, and D.C. Circuits hold.
2. Whether a rule prohibiting cross-identifiedgender strip searches in prisons is contrary to the flexible and deferential rule adopted in Bell v. Wolfish,
441 U.S. 520 (1979), and reaffirmed in Florence v.
Board of Chosen Freeholders of County of Burlington,
566 U.S. 318 (2012).
ii
PARTIES TO THE PROCEEDINGS
Petitioners are Joseph J. Roybal, in his official capacity as the Sheriff of El Paso County, Colorado, and
Andrew Mustapick, in his individual capacity. Petitioners were defendants in the district court and the
defendant-appellees in the Tenth Circuit.
Respondent is Darlene Griffith who was the plaintiff in the district court and the plaintiff-appellant in
the Tenth Circuit.
iii
LIST OF ALL PROCEEDINGS
This case arises from the following proceedings:
1. Griffith v. El Paso Cnty., Colo., No. 23-1135
(10th Cir.), order denying petition for rehearing en
banc issued June 10, 2025.
2. Griffith v. El Paso Cnty., Colo., No. 23-1135
(10th Cir.), opinion and judgment reversing in part,
vacating in part, and remanding with instructions issued February 19, 2025.
3. Griffith v. El Paso Cnty., Colo., No. 21-cv-00387
(D. Colo.), order affirming and adopting the recommendation of the magistrate judge issued March 27,
2023.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................i
PARTIES TO THE PROCEEDINGS ......................... ii
LIST OF ALL PROCEEDINGS ................................ iii
APPENDIX TABLE OF CONTENTS........................ vi
TABLE OF AUTHORITIES ..................................... vii
DECISIONS BELOW .................................................. 1
JURISDICTION .......................................................... 1
CONSTITUTIONAL PROVISIONS INVOLVED ...... 2
INTRODUCTION ........................................................ 3
STATEMENT OF THE CASE .................................... 6
REASONS FOR GRANTING THE PETITION ....... 12
I.
Sex Classifications in Prisons Are Necessary
and the Constitutional Norm ............................. 12
II. Housing Transgender Inmates in a SexSegregated Correctional System Presents
Operational Difficulties That Require
Administrative Flexibility and Deference ......... 17
III. This Case Cleanly Presents Two of the Most
Pressing Transgender Issues in Prisons............ 21
A. Lower courts are split on the
constitutional scrunity applicable to sexbased equal-protection claims in prisons .... 22
v
TABLE OF CONTENTS (con’t)
B. The majority disregarded the Court’s
strip-search precedent by announcing
there can be no “legitimate penological
purpose” for cross-identified-gender
searches ........................................................ 27
CONCLUSION .......................................................... 30
vi
APPENDIX TABLE OF CONTENTS
United States Court of Appeals
for the Tenth Circuit,
Opinion in 23-1135
Issued February 19, 2025.......................................... 1a
United States Court of Appeals
for the Tenth Circuit,
Judgment in 23-1135
Entered February 19, 2025 ................................... 108a
United States Court of Appeals
for the Tenth Circuit,
Order Denying Petition for Rehearing En Banc
in 23-1135
Issued June 10, 2025 ............................................. 112a
United States District Court
for the District of Colorado,
Plaintiff’s Third Amended Complaint
in 21-cv-00387
Filed June 7, 2022 ................................................. 125a
United States District Court
for the District of Colorado,
Magistrate Judge Report and Recommendation on
Defendants’ Motion to Dismiss Third Amended Complaint in 21-cv-00387
Issued February 27, 2023...................................... 196a
United States District Court
for the District of Colorado,
Order Affirming and Adopting
Recommendation of United States Magistrate Judge
in 21-cv-00387
Issued March 27, 2023 .......................................... 243a
vii
TABLE OF AUTHORITIES
Page(s)
Cases
Armstrong v. Mid-Level Prac. John B. Connally Unit,
2020 WL 230887 (W.D. Tex. Jan. 15, 2020) ......... 25
Ballard v. United States,
329 U.S. 187 (1946)..........................................16-17
Bell v. Wolfish,
441 U.S. 520 (1979)............................... i, 6, 9, 27, 29
Benjamin v. Coughlin,
905 F.2d 571 (2d Cir. 1990) ................................... 24
Bostock v. Clayton Cnty., Ga.,
590 U.S. 644 (2020).................................. 5, 8, 15, 16
Brown v. Zavaras,
63 F.3d 967 (10th Cir. 1995).................................... 8
Byrd v. Maricopa Cnty. Sheriff’s Dep’t,
629 F.3d 1135 (9th Cir. 2011)................................ 28
Carpenter v. United States,
585 U.S. 296 (2018)................................................ 27
Carter-el v. Boyer,
2020 WL 939289 (E.D. Va. Feb. 25, 2020) ............ 19
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985)................................................ 25
Colbruno v. Kessler,
928 F.3d 1155 (10th Cir. 2019).............................. 10
Cortes-Quinones v. Jimenez-Nettleship,
842 F.2d 556 (1st Cir. 1988) .................................. 14
viii
TABLE OF AUTHORITIES (con’t)
Crosby v. Reynolds,
763 F. Supp. 666 (D. Me. 1991) ............................. 20
Doe through Doe v. Rocky Mountain Classical Acad.,
99 F.4th 1256 (10th Cir. 2024) .............................. 26
Doe v. McHenry,
763 F. Supp. 3d 81 (D.D.C. 2025) .......................... 24
Farmer v. Brennan,
511 U.S. 825 (1994).................................... 13, 14, 19
Fleming v. Strong,
2023 WL 2142670 (N.D. Fla. Jan. 25, 2023) ......... 20
Florence v. Bd. of Chosen Freeholders of
Cnty. of Burlington,
566 U.S. 318 (2012)............................. i, 9, 27, 28, 29
Fogle v. Pierson,
435 F.3d 1252 (10th Cir. 2006).............................. 26
Fowler v. Stitt,
104 F.4th 770 (10th Cir. 2024) .............. 5, 10, 15, 31
Gale v. Terra,
2025 WL 662806 (E.D. Penn. Feb. 27, 2025) ........ 19
Gilliam v. Dep’t of Pub. Safety & Corr. Servs.,
2024 WL 5186706 (D. Md. Dec. 20, 2024) ... 4, 20, 21
Guy v. Espinoza,
2020 WL 309525 (E.D. Cal. Jan. 21, 2020) ........... 20
Harrison v. Kernan,
971 F.3d 1069 (9th Cir. 2020)................................ 23
Johnson v. California,
543 U.S. 499 (2005).................................... 18, 23, 24
ix
TABLE OF AUTHORITIES (con’t)
Jones v. Cathey,
854 F. App’x 543 (4th Cir. 2021) ........................... 20
Jones v. N.C. Prisoners Lab. Union,
433 U.S. 119 (1977)................................................ 18
Jones v. Union Cnty. Sheriff’s Office,
2019 WL 5692753 (W.D.N.C. Nov. 4, 2019).......... 20
Klinger v. Dep’t of Corr.,
31 F.3d 727 (8th Cir. 1994)........................ 13, 14, 15
L.W. v. Skrmetti,
83 F.4th 460 (6th Cir. 2023) .................................. 17
LeTray v. City of Watertown,
718 F. Supp. 3d 192 (N.D.N.Y. 2024) .................... 21
Oliver v. Scott,
276 F.3d 736 (5th Cir. 2002).................................. 28
Procunier v. Martinez,
416 U.S. 396 (1974).......................................... 17, 21
Rhodes v. Chapman,
452 U.S. 337 (1981)................................................ 19
Roubideaux v. N.D. Dep’t of Corr. & Rehab.,
570 F.3d 966 (8th Cir. 2009).................................. 23
Stitt v. Fowler,
145 S. Ct. 2840 (2025)...................................... 15, 31
Tates v. Blanas,
2003 WL 23864868 (E.D. Cal. Mar. 11, 2003) ...... 20
Turner v. Safley,
482 U.S. 78 (1987)........... i, 3, 5, 6, 10, 17, 18, 19, 21
22, 23, 24, 25, 26, 28, 30
x
TABLE OF AUTHORITIES (con’t)
United States v. Skrmetti,
145 S. Ct. 1816 (2025)........................ 3, 5, 11, 15, 16
United States v. Virginia,
518 U.S. 515 (1996)....... i, 3, 5, 10, 16, 22, 23, 24, 26
Veney v. Wyche,
293 F.3d 726 (4th Cir. 2002)...................... 13, 15, 24
Washington v. Harper,
494 U.S. 210 (1990)................................ 5, 18, 22, 23
West v. Radtke,
48 F.4th 836 (7th Cir. 2022) .................................. 19
Williams v. Kelly,
2018 WL 4403381 (E.D. La. Aug. 27, 2018).......... 25
Williamson v. Maciol,
839 F. App’x 633 (2d Cir. 2021) ............................. 24
Women Prisoners of D.C. Dep’t of Corr. v.
District of Columbia,
93 F.3d 910 (D.C. Cir. 1996) ............................ 15, 24
Constitutional Provisions
U.S. CONST. amend. IV................................................ 2
U.S. CONST. amend. XIV, § 1. ..................................... 2
Statutes
28 U.S.C. § 1254(1) ...................................................... 1
28 U.S.C. § 1291 .......................................................... 1
28 U.S.C. § 1331 .......................................................... 1
Rules
Fed. R. Civ. P. 12(b)(1) ................................................ 8
Fed. R. Civ. P. 12(b)(6) ................................................ 8
xi
TABLE OF AUTHORITIES (con’t)
Regulations
28 C.F.R. § 115.42 ..................................................... 27
Other Authorities
Aditi Bhargava, et al., Considering Sex As a
Biological Variable in Basic & Clinical Studies: An
Endocrine Society Scientific Statement, 42
ENDOCRINE REV. 219 (2021) .................................. 16
Candace Kruttschnitt & Rosemary Gartner, Women’s
Imprisonment, 30 CRIME & JUSTICE 1 (2003) ....... 12
COUNCIL ON CRIMINAL JUSTICE, Women’s Justice: A
Preliminary Assessment of Women in the Criminal
Justice System (July 2024) ..............................12-13
Gender & Health, WORLD HEALTH ORG. ................... 16
Little v. Hecox,
No. 24-38 (U.S.) ................................................. 3, 11
Nicole H. Rafter, Prisons for Women, 1790-1980, 5
CRIME & JUSTICE 129 (1983)............................ 12, 15
Shaziya Allarakha, What Are the 72 Other Genders?,
MED. NET (medically reviewed Feb. 9, 2024) ........ 16
West Virginia v. B.P.J.,
No. 24-43 (U.S.).................................................. 3, 11
1
DECISIONS BELOW
The district court’s order affirming and adopting
the recommendation of the magistrate judge, and the
magistrate judge’s report and recommendation, are
unreported and printed at Pet. App. 243a–65a and
Pet. App. 196a–242a, respectively. The Tenth Circuit’s opinion (Pet. App. 1a–107a), is reported at 129
F.4th 790. The en banc Tenth Circuit’s order denying
review, and the opinions concurring and dissenting
from that order (Pet. App. 112a–24a), are reported at
139 F.4th 1183.
JURISDICTION
The Tenth Circuit entered judgment on February
19, 2025. (Pet. App. 110a–11a.) A petition for rehearing en banc was denied on June 10, 2025. (Pet. App.
114a–15a.) On July 31, 2025, Justice Gorsuch extended the time within which to file a petition for a
writ of certiorari to and including October 7, 2025.
The lower courts had jurisdiction under 28 U.S.C.
§ 1331 and 28 U.S.C. § 1291. This Court has jurisdiction under 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL PROVISIONS INVOLVED
The Fourth Amendment provides, “The right of
the people to be secure in their persons … against unreasonable searches and seizures, shall not be violated[.]” U.S. CONST. amend. IV.
The Fourteenth Amendment’s Equal Protection
Clause says no state shall “deny to any person within
its jurisdiction the equal protection of the laws.” U.S.
CONST. amend. XIV, § 1.
3
INTRODUCTION
For over two centuries, American prisons and jails
have classified and housed inmates and detainees
based on biological sex. This long-standing practice
advances institutional security, prevents sexual violence, and preserves the privacy and dignity of those
in custody and of staff. The decision below threatens
this foundational practice by holding that it is constitutionally suspect under the Equal Protection Clause
to house a biologically male inmate with unaltered
male anatomy alongside male inmates if the inmate
expresses a female identity. By transforming an inmate’s subjective gender identity—of which there are
over 70—into a sex-based constitutional classification
triggering heightened scrutiny, the Tenth Circuit has
subordinated prison security and the privacy interests
of all to the preference of one in contravention of this
Court’s prison-administration precedents.
As a result of the quest to reconstitute sex-based
distinctions under the Equal Protection Clause to include “gender identity,” courts are floundering on the
meaning of “sex.” This issue appeared in United States
v. Skrmetti, and now again in Little v. Hecox and West
Virginia v. B.P.J. It was also key to the Tenth Circuit’s
decision here, with the majority unabashedly holding
that a distinction based on “transgender status” is a
distinction based on “sex.” (Pet. App. 26a–27a.)
In addition, lower courts are hopelessly divided on
how to analyze sex-based classifications in a carceral
setting. The Eighth, Ninth, and Tenth Circuits apply
heightened scrutiny under United States v. Virginia
(VMI), treating sex-based classifications as presumptively unconstitutional. The Second, Fourth, and D.C.
Circuits apply Turner v. Safley’s deferential
4
reasonableness standard, recognizing that courts
must defer to legitimate penological interests, including in cases challenging sex-based classifications. The
present circuit split leaves prison administrators—
from federal penitentiaries to rural county jails—subject to inconsistent mandates on how to classify and
house transgender inmates while maintaining safety
and security in their facilities.
The Tenth Circuit also announced an unprecedented strip-search rule: absent emergencies, male officers cannot search biologically male inmates who
self-identify as female. In doing so, the Tenth Circuit
holds that the Constitution requires a female officer
to examine the naked body and genitals of a biological
male based solely on that inmate’s subjective selfidentification and without reference to other factors.
Such a rule is constitutionally absurd. And it disregards administrative expertise, creates dignity and
safety concerns, and ignores the operational realities
of running detention facilities like county jails.
The consequences are severe. Hundreds of cases
now flood federal courts, with prison officials facing
litigation from all sides: transgender inmates demanding classification by gender identity; female inmates challenging housing decisions that require
them to sleep, live, and bathe with biological males
who identify as female; inmates objecting to searches
by certain officers; and staff asserting dignity concerns about cross-sex searches. Courts admit “there is
little uniformity to be found among their decisions.”
Gilliam v. Dep’t of Pub. Safety & Corr. Servs., 2024
WL 5186706, at *20 n.14 (D. Md. Dec. 20, 2024).
The present confusion is of the lower courts’ own
making. This Court has been steadfast in concluding
5
that judges lack the operational expertise to micromanage prisons, see Turner, 482 U.S. at 84–85, and
should not constitutionalize fiercely debated social
and scientific issues, see United States v. Skrmetti, 145
S. Ct. 1816, 1837 (2025). Yet lower courts have continued to disregard both mandates, using Bostock v.
Clayton County, Ga.—a Title VII case—to sub silentio
elevate transgender identity to a protected constitutional status in prisons, thereby doing precisely what
the Court has warned against.
This Court should clarify that the Fourteenth
Amendment does not require treating the fluid, subjective concept of transgender identity as a sex-based
or stand-alone constitutional class. And heightened
scrutiny under VMI does not create class-based protections for transgender inmates in prisons. “Sex” refers to immutable biological characteristics—male or
female—defined by chromosomes and reproductive
anatomy. Gender identity is subjective and fluid. Conflating these concepts creates unworkable standards,
elevating individual preference over legitimate privacy, safety, and security interests.
Finally, the Tenth Circuit’s decision cannot be reconciled with Skrmetti. This Court already granted review, vacated, and remanded Fowler v. Stitt, 104
F.4th 770 (10th Cir. 2024), the case on which the
Tenth Circuit’s equal-protection holding rests. At a
minimum, similar treatment is required here. But the
carceral context of this case presents more urgent issues, requiring an immediate reminder that “Turner
applies to all circumstances in which the needs of
prison administration implicate constitutional
rights,” Washington v. Harper, 494 U.S. 210, 224
(1990), with only one exception for racial segregation.
6
Officials must be able to respond to legitimate penological concerns, such as security and privacy interests, in this country’s vastly different detention settings. The Court should grant the petition and reaffirm that the deferential standards in Turner and Bell
apply to sex-based prison classifications and crossidentified-gender searches, ensuring prison administrators and policymakers have the discretion necessary to maintain safe, secure, and humane facilities.
STATEMENT OF THE CASE
In July 2020, Darlene Griffith entered the jail system in El Paso County, Colorado, as a pretrial detainee. (Pet. App. 8a.) At the time, Griffith identified
as a “transgender female”; she had changed her name,
altered her physical appearance to appear female, and
taken feminizing hormones, which caused Griffith to
develop breasts. (Id. at 7a–8a.) Griffith, however, still
had unaltered biologically male reproductive anatomy, including a penis and scrotum. (Id. at 12a.)
Despite this, Griffith asked deputies to be housed
in a female unit based on her female identity. (Id. at
8a.) The deputies declined Griffith’s request because
the County generally makes custodial assignments
based on an inmate’s or detainee’s genitals. (See id.)
Griffith was therefore assigned to a male housing unit
during her detention. (Id.)
As a result of Griffith’s male housing assignment,
she alleges she did not have access to feminine products from the jail’s commissary, including lipstick,
women’s underwear, and a sports bra. (Id. at 10a.)
Griffith further alleges she needed access to these
products, including “panties and lipstick,” to “conform[] with her [female] gender identity.” (Id. at 126a–
7
27a.) Permitting vulnerable biologically male detainees, who identify as female, to have articles that make
them appear more “feminine” increases the risk of violence and harassment. (See id. at 103a–04a n.47.)
As with all pretrial detainees, Griffith underwent
a visual body-cavity inspection when booked during
the intake process. (See id. at 8a.) Griffith insisted
that a female officer perform the strip search, including searching her male genitals. (See id. at 9a.)
Two deputies performed the search. (Id.) Consistent with the County’s policy, a female deputy
searched Griffith above the waist by asking Griffith to
remove her shirt so the deputy could inspect under
Griffith’s clothing, including the breasts Griffith had
developed from taking feminizing hormones. (See id.)
The female deputy then left the examination room. A
male deputy conducted the remainder of the search,
including searching Griffith’s penis and scrotum and
visually inspecting Griffith’s body cavities below the
waist. (See id.) Griffith alleges the male deputy made
inappropriate comments to her during the examination. (Id.) She further alleges that, after booking, she
was subjected to pat-down searches by male deputies
while in the jail’s male housing ward. (Id. at 10a.)
District court proceedings. Griffith filed a 16count complaint against the County, the sheriff, and
six commanders and deputies. (See generally id. at
125a–95a.) Relevant here, Griffith claimed (1) the
County’s housing and commissary policies violated
her rights under the Equal Protection Clause of the
Fourteenth Amendment by denying her housing in a
female unit and denying her access to products available to biologically female inmates; and (2) the
County’s strip-search policy violated her Fourth and
8
Fourteenth Amendment rights by subjecting her to
cross-identified-gender searches (i.e., searches by
male deputies). 1 (Id. at 12a–13a.)
The defendants moved to dismiss Griffith’s complaint in its entirety under Federal Rule of Civil Procedure 12(b)(1) and (b)(6). At the start, the district
court accepted Griffith’s framing of the case, characterizing it as a case, “at its core,” “about governmental
validation of the existence and experiences of
transgender people.” (Pet. App. 252a (quoting Griffith’s operative complaint).) While the court was “sympathetic to [Griffith],” it nonetheless found “that existing Tenth Circuit precedent binds the Court’s hands”
and dismissed the entire case. (Id.)
First, as to the equal-protection claims, the district court held rational-basis review applied. In
Brown v. Zavaras, 63 F.3d 967 (10th Cir. 1995), the
Tenth Circuit concluded “that ‘transsexuals are not a
protected class’ for purposes of the Fourteenth
Amendment.” (Pet. App. 259a (quoting Brown, 63 F.3d
at 971).) While Griffith challenged whether Brown
was still good law after Bostock v. Clayton County,
Ga., 590 U.S. 644 (2020), the court said, “[r]egretfully,” it was “unable to engage in that analysis or arrive at th[at] conclusion[]” because of binding circuit
precedent. (Pet. App. 262a.) The court added, “If the
Court were to consider the issue untethered
by Brown, the Court would not hesitate to find that
heightened scrutiny is warranted for [Griffith’s] equal
1 In her complaint, Griffith alleged other claims against the
defendants, only one of which was sustained by the Tenth Circuit. That claim is an individual-capacity claim against the male
deputy for “abusive cross-gender strip search” under the Fourth
Amendment. (Id. at 12a–13a, 61a–71a.)
9
protection claim because transgender-based discrimination constitutes sex-based discrimination[.]” (Id. at
261a.) But, as is, the court agreed that the County had
“a rational basis for housing [Griffith] in an all-male
unit and declining to give her feminine clothing and
grooming products.” (Id. at 262a.)
Second, as to the cross-identified-gender search
claim, the district court agreed with the magistrate
judge’s “careful[] balanc[ing] [of Griffith’s] right to
bodily privacy and right to be free from unreasonable
searches against the requirements of prison administration.” (Id. at 262a.) This is consistent with the
rule in Bell v. Wolfish, 441 U.S. 520 (1979), and Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. 318 (2012). The court continued by
holding that, even if Griffith had alleged a constitutional violation, the claim would fail under “the
‘clearly established’ prong of qualified immunity because [Griffith] offer[ed] no binding precedent clearly
establishing that a visual strip search by a male and
female deputy of a transgender inmate … violates the
inmate’s constitutional rights.” (Pet App. 256a.)
Tenth Circuit majority opinion. Griffith appealed. Chief among Griffith’s contentions was that
heightened scrutiny applied to her equal-protection
claims. In a 2-1 decision, the majority agreed, holding
that a distinction based on transgender identity is necessarily a classification or discrimination based on sex.
“Specifically, the [County] lets only cisgender females
(who were assigned a female sex at birth based on
their genitalia)—but not transgender females (who
were assigned a male sex at birth based on their genitalia)—live in female housing and receive the products at issue.” (Id. at 17a.) That, the majority
10
reasoned, amounts to “discriminat[ion] on the basis of
sex.” (Id. (quoting Fowler v. Stitt, 104 F.4th 770, 794
(10th Cir. 2024)).) And “‘all’ sex-based classifications
‘warrant heightened scrutiny.’” (Id. (quoting VMI, 518
U.S. at 555).)
The majority also reversed the dismissal of Griffith’s cross-identified-gender strip-search claim. In an
unprecedented ruling, the majority held “a male deputy’s participation in the strip search of a transgender
female detainee ha[s] no ‘reasonable relationship’ to a
‘legitimate governmental objective.’” (Id. at 59a–60a
(quoting Colbruno v. Kessler, 928 F.3d 1155, 1163
(10th Cir. 2019).) In other words, it is unconstitutional
for a male officer to strip search a biologically male
inmate or detainee who identifies as female, even if
the inmate or detainee still has male genitals.
Judge Tymkovich’s dissenting opinion. Judge
Tymkovich recognized “the case pits profoundly personal convictions against jail policies aimed at maintaining institutional security while balancing the dignitary concerns of officers and inmates.” (Id. at 107a.)
But he disagreed that Griffith’s interests, as alleged,
should “transcend the [County’s]” legitimate penological interests. (Id.) Rather, because Griffith challenged policies in a jail, Judge Tymkovich would have
applied the Court’s mandate in Turner v. Safley, 482
U.S. 78 (1987): “when a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid
if it is reasonably related to legitimate penological interests.” (Pet. App. 80a (quoting Turner, 482 U.S. at
89).) And, applying the correct level of scrutiny, Judge
Tymkovich, like the district court, would have found
Griffith’s constitutional claims foreclosed.
11
Denial of en banc review. Because the majority
decision, at best, raised novel first-impression issues,
and, at worst, was against circuit precedent, the
County petitioned for en banc review. (Id. at 114a–
15a.) Six days before the Court issued its decision in
United States v. Skrmetti, 145 S. Ct. 1816 (2025), the
Tenth Circuit denied review. Judge Rossman, the author of the majority decision, concurred in the denial.
(Pet. App. 116a–17a.) Judge Tymkovich (joined by
Judges Eid and Carson) dissented from the denial:
Holding that sex-discrimination is an exception to Turner puts us out of step with the Supreme Court and other circuits. And it is
simply incorrect. We remain bound by two facially contradictory Supreme Court cases. …
But only the Supreme Court can truly solve
this conflict.
(Id. at 124a.)
Because the majority’s decision undermines security, privacy, and administrative interests at detention facilities, including some of the country’s most
critical and secure federal facilities (which are located
in the Tenth Circuit), and because the Court has and
will provide material guidance in cases like Skrmetti,
Little v. Hecox, and West Virginia v. B.P.J., petitioners
seek this Court’s immediate review.
12
REASONS FOR GRANTING THE PETITION
I.
Sex Classifications in Prisons Are Necessary and the Constitutional Norm
1. State and local governments have operated jails
and prisons since the post-Revolutionary War period.
They have been segregated by sex just as long. See
generally Nicole H. Rafter, Prisons for Women, 17901980, 5 CRIME & JUSTICE 129–81 (1983). While early
segregation was an administrative necessity because
the incarcerated-female population was exceedingly
small and prison facilities were open and communal,
this necessity led to significant differences in how facilities house men and women inmates and detainees
today. Id. at 131–32. Thus, in the United States, the
historical norm has been segregation and classification based on biological sex in prison 2 settings.
As a result of expanded research on women in
prison in the last 50 years, special attention has been
dedicated to “the distinctiveness of female prisoners’
needs, disadvantages, and ways of adapting or responding to imprisonment.” Candace Kruttschnitt &
Rosemary Gartner, Women’s Imprisonment, 30 CRIME
& JUSTICE 1, 1 (2003). This was critical because earlier
criminal-justice processes and facilities investment focused predominately on male inmates, which make up
a far greater portion of the incarcerated population.
COUNCIL ON CRIMINAL JUSTICE, Women’s Justice: A
2 At times in this petition, petitioners refer to carceral de-
tentions facilities colloquially as “prisons.” This ease-of-reference
should not minimize the meaningful physical-, human-, and financial-resource differences between jails, prisons, and institutional correctional facilities.
13
Preliminary Assessment of Women in the Criminal
Justice System (July 2024), http://bit.ly/4mwyRlo.
Incarcerated women, however, face “a unique set
of obstacles.” Id. “Most have experienced poverty and
trauma,” and they are “more likely” to be victims of
abuse and sexual violence by a partner, to be diagnosed with mental health and substance-use disorders, and to have experienced homelessness. Id. Many
incarcerated women are “entangled in other [government] systems” (e.g., child welfare, housing, etc.) and,
as the primary caretakers of their children, “their incarceration is more likely than men’s incarceration to
destabilize families and create ripple effects throughout communities.” Id.; see also Klinger v. Dep’t of
Corr., 31 F.3d 727, 731–32 (8th Cir. 1994) (“[F]emale
inmates as a class have special characteristics distinguishing them from male inmates, ranging from the
fact that they are more likely to be single parents with
primary responsibility for child rearing to the fact that
they are more likely to be sexual or physical abuse victims[.]”). These factors and characteristics, and the
needs flowing from them, influence the programs and
policy choices of prison administrators.
Incarcerating women also presents unique safety
and privacy concerns. “Prisons are necessarily dangerous places; they house society’s most antisocial and violent people in close proximity with one another,”
Farmer v. Brennan, 511 U.S. 825, 858 (1994) (Thomas,
J., concurring), and there is little doubt that male inmates are more antisocial and more violent than female inmates, see, e.g., Veney v. Wyche, 293 F.3d 726,
734 (4th Cir. 2002) (“At Riverside, females and males
are housed separately, and each gender faces unique
safety and security concerns of various degrees.
14
Indeed, it is a well-documented reality that institutions for females generally are much less violent than
those for males.”); Klinger, 31 F.3d at 732 (“Male inmates, in contrast, are more likely to be violent and
predatory than female inmates.”).
Further, the Court’s Eighth Amendment caselaw
requires prison officials “to protect prisoners from violence at the hands of other prisoners.” Farmer, 511
U.S. at 833 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). “Having incarcerated ‘persons [with] demonstrated proclivit[ies]
for antisocial criminal, and often violent, conduct,’ having stripped them 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.” Id. (citations omitted). For this reason, detention settings are not intended to mirror general life or the outside world,
where men and women freely intermix—indeed, constitutionally, they cannot. Administrators would face
immeasurable risk of liability for failure to protect if
it were otherwise.
To balance female inmates’ safety and privacy
concerns, the structure and operation of women’s prisons have long differed from their male counterparts.
They are often physically separate from facilities
housing male inmates and there are fewer of them (because there are far fewer incarcerated females); they
operate at lower security levels and the general population spaces tend to be more communal, dormitory
style; bathroom facilities (showers, toilets, etc.) are
generally more private, including partitions and private bathing facilities; and the prison staff, particularly those in charge of administration and those who
15
have direct contact with female inmates, typically are
female themselves. See Rafter, supra, at 131–33, 137,
142–44, 146–47, 156–60, 165–72. The safety and privacy considerations motivating these differences are
obvious and have been credited by courts. See, e.g.,
Veney, 293 F.3d at 734; Klinger, 31 F.3d at 732.
Considering this history and reality, courts have
uniformly concluded that “the segregation of inmates
by sex is unquestionably constitutional.” Women Prisoners of D.C. Dep’t of Corr. v. District of Columbia, 93
F.3d 910, 926 (D.C. Cir. 1996).
2. But this raises a question: what does it mean
for officials in prisons to segregate—or adopt classifications—based on “sex”? The Tenth Circuit majority
held that treating a preoperative, biologically male inmate who identifies as female as a “male” for purposes
of sex-based classifications in prison is sex discrimination. (Pet. App. 26a–27a.) It relied predominantly on
the circuit’s decision in Fowler v. Stitt, which earlier
held that when a defendant “intends to discriminate
based on transgender status [it] necessarily intends to
discriminate based in part on sex.” 104 F.4th 770, 789
(10th Cir. 2024) (citing Bostock v. Clayton Cnty., Ga.,
590 U.S. 644, 665 (2020)), cert. granted, judgment vacated, 145 S. Ct. 2840 (2025). The majority’s ill-fated
reliance on Fowler, which this Court vacated and reversed after United States v. Skrmetti, 145 S. Ct. 1816
(2025), is reason enough to grant review, vacate, and
reverse in this case. But, as argued below, there are
additional issues unique to a carceral setting that desperately need final resolution by the Court.
More fundamentally, while the Equal Protection
Clause does not mention the word “sex,” the Court has
long held that sex is a constitutionally protected
16
characteristic. VMI, 518 U.S. at 532–33 (collecting
cases). Science and precedent—and, in a prison setting, necessity—confirm that this characteristic refers
to fixed, objective, biological features: the state of being either male or female.
“Sex” is immutable and represents the “inherent”
and “enduring” “[p]hysical differences between men
and women.” Id. at 533. Sex is binary, objective, and
defined by inherent and unalterable characteristics in
male and female genetics. Advocates on both sides of
the issue agree. E.g., Aditi Bhargava, et al., Considering Sex As a Biological Variable in Basic & Clinical
Studies: An Endocrine Society Scientific Statement, 42
ENDOCRINE REV. 219, 221 (2021) (“Sex is a biological
concept … . [A]ll mammals have 2 distinct sexes … .
Sex is dichotomous, with sex determination in the fertilized zygote stemming from unequal expression of
sex chromosomal genes.”). On the other hand, gender
identity is necessarily subjective, “refer[ing] to a person’s deeply felt, internal and individual experience of
gender, which may or may not correspond to the person’s physiology or designated sex at birth.” Gender &
Health, WORLD HEALTH ORG., https://bit.ly/4nOzVSV.
Studies have catalogued more than 70 gender identities—far from a binary construct. Shaziya Allarakha,
What Are the 72 Other Genders?, MED. NET (medically
reviewed Feb. 9, 2024), http://bit.ly/48zdmgz.
Following science, the Court has recognized that
“sex” is an objective characteristic distinct from an individual’s gender identity and resulting “transgender
status.” Bostock, 590 U.S. at 669; see Skrmetti, 145 S.
Ct. at 1824 (to identify as “transgender” means that
one’s “gender identity does not align with their biological sex”). Whereas sex is binary, see, e.g., Ballard v.
17
United States, 329 U.S. 187, 193–94 (1946), gender
identity involves “a huge variety,” L.W. v. Skrmetti, 83
F.4th 460, 487 (6th Cir. 2023).
Based on the enduring differences between men
and women, and the long history of sex-based segregation in prisons, jail administrators have logically
separated inmates by “sex” and adopted other sexbased policies for over 200 years.
II. Housing Transgender Inmates in a Sex-Segregated Correctional System Presents Operational Difficulties That Require Administrative Flexibility and Deference
Prisoners are increasingly using transgender status to raise constitutional challenges to long-standing
sex-based classifications and policies in detention facilities. The targets of these challenges are prison officials who must balance institutional safety and security for all with requests for exceptions and accommodations for one in a sex-based detention system.
They do this while contending with vastly different incarcerated populations and disparate facilities, infrastructure, staffing, and financial resources.
Central to this Court’s prison-administration
caselaw is the recognition that “the problems of prisons in America are complex and intractable” and “they
are not readily susceptible of resolution by decree.”
Procunier v. Martinez, 416 U.S. 396, 404–05 (1974).
Running prisons, in their vastly different forms, “is an
inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of
which are peculiarly within the province of the legislative and executive branches of government.” Turner
v. Safley, 482 U.S. 78, 85 (1987). Although individuals
18
do not lose all constitutional rights when they are incarcerated, the Court has been consistent in how to
weigh these reduced rights against penological interests: “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”
Id. at 89. This “standard is necessary if ‘prison administrators ..., and not the courts, [are] to make the difficult judgments concerning institutional operations.’”
Id. (quoting Jones v. N.C. Prisoners Lab. Union, 433
U.S. 119, 128 (1977)). Fidelity to this deferential
standard ensures prison officials—not federal
judges—are the decision-makers “of what constitutes
the best solution to every administrative problem.” Id.
As the Tenth Circuit did here, courts are increasingly disregarding long-standing deference to legitimate penological interests in favor of levels of constitutional scrutiny never applied in a carceral setting.
This is against the Court’s clear mandate: “[W]e held
that the proper standard … is to ask whether the regulation is ‘reasonably related to legitimate penological
interests.’ This is true even when the constitutional
right claimed to have been infringed is fundamental”
and “a more rigorous standard of review” might apply
outside of prison. Washington v. Harper, 494 U.S. 210,
223 (1990) (quoting Turner, 482 U.S. at 89). The only
exception to this rule is for race-based classifications
in jails and prisons, as the Court held in Johnson v.
California, 543 U.S. 499 (2005). 3
3 Of course, the Turner standard does not address liability
for actions under the Eighth Amendment. But Eighth Amendment liability requires the inmate to show (1) a sufficiently serious constitutional deprivation that resulted in the denial of “the
minimal civilized measure of life’s necessities,” and (2) that the
19
The result of straying from Turner’s clear rule is
a dizzying array of constitutional litigation by
transgender inmates and, at times, reactionary litigation by other inmates (sometimes targeting
transgender inmates) against officials managing facilities with transgender populations. These cases exist
because of the recent quest to rewrite the Court’s
prison-administration constitutional standards—
which, again, defer to legitimate penological interests
and give officials substantial flexibility to solve pressing problems—to treat the fluid and subjective concept of transgender identity as a sex-based or standalone constitutional class in prisons.
Take a few examples:
• In Carter-el v. Boyer, a transgender female (a
biological male who identified as a female) inmate alleged a male officer violated the Fourth Amendment
after the officer strip searched the inmate. 2020 WL
939289, at *2 (E.D. Va. Feb. 25, 2020).
• In Gale v. Terra, a male prisoner alleged a
transgender male (a biological female who identified
as male) officer violated the inmate’s constitutional
right to privacy after the officer strip searched him.
2025 WL 662806, at *9 (E.D. Penn. Feb. 27, 2025); see
also West v. Radtke, 48 F.4th 836, 853 (7th Cir. 2022)
(reviving Fourth Amendment claim for strip search of
a Muslim, male inmate by transgender male officer).
• In Jones v. Union County Sheriff’s Office, a partially preoperative transgender female filed an equalprotection challenge because officers “treated [her] as
official was “deliberately indifferent” to the inmate’s health or
safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
20
a male,” even though the plaintiff was temporarily detained with neither male nor female detainees. 2019
WL 5692753, at *3 (W.D.N.C. Nov. 4, 2019), aff’d sub
nom. Jones v. Cathey, 854 F. App’x 543 (4th Cir. 2021).
• In Crosby v. Reynolds, a female detainee alleged a violation of her constitutional right to privacy
after officers housed a preoperative transgender female with her in a cell block, which also required the
detainees to share bathroom facilities. 763 F. Supp.
666, 670 (D. Me. 1991) (dismissing case on qualifiedimmunity grounds because “contours of [the] right [to
privacy] are not clear when it comes to the determination of where to house transsexuals”); Guy v. Espinoza, 2020 WL 309525, at *5 (E.D. Cal. Jan. 21, 2020)
(same); see also Fleming v. Strong, 2023 WL 2142670,
at *2 (N.D. Fla. Jan. 25, 2023) (challenging federal
prison transgender policy of housing, at times, biologically male inmates with male genitals in female prisons under the First, Eighth, and Fifth/Fourteenth
Amendments, and under the Religious Freedom Restoration Act).
• In Tates v. Blanas, a preoperative transgender
female challenged, among other policies, a prison’s
policy of segregating transgender detainees to avoid
housing them in general population. 2003 WL
23864868, at *2–4 (E.D. Cal. Mar. 11, 2003).
• In Gilliam v. Department of Public Safety &
Correctional Services, three transgender females (it is
unclear whether they were pre- or post-operative)
challenged Maryland’s transgender housing policies,
which, at times, included administrative separation
for the protection of the inmate. 2024 WL 5186706, at
*1–3 (D. Md. Dec. 20, 2024).
21
• And in LeTray v. City of Watertown, a
transgender female detainee sued for injunctive relief
ordering prison officials to “correct” all prison records
identifying the plaintiff “as a woman, not a man,” and
to delete booking photographs showing her without
her female wig because they incorrectly represent the
plaintiff’s gender identity. 718 F. Supp. 3d 192, 207–
08 (N.D.N.Y. 2024) (citing complaint).
Just in the last five years, courts have contended
with hundreds of cases raising transgender-inmate issues, with hundreds more to come. Lower courts have
noted their struggle and that “there is little uniformity to be found among their decisions.” Gilliam,
2024 WL 5186706, at *20 n.14. That struggle is not
surprising—time and again, this Court has recognized
the judiciary is “ill equipped to deal with the increasingly urgent problems of prison administration and
reform.” Turner, 482 U.S. at 84 (quoting Martinez, 416
U.S. at 405). Failure to faithfully apply Turner has
compounded the problem by creating uncertainty and
risk for prison officials. Officials today face constitutional litigation from transgender inmates who want
to be classified and housed according to their gender
identity, even before attempting medical transition;
biologically female inmates who do not want to be
housed with inmates of the opposite sex (especially
those with male genitals) because of safety and privacy concerns; and still others who desire unique
treatment and accommodation.
III. This Case Cleanly Presents Two of the Most
Pressing Transgender Issues in Prisons
The Tenth Circuit majority, and Judge Tymkovich’s probing dissent, lay bare two prison-administration issues that have hopelessly confused courts
22
across the county. First, lower courts are split on the
level of scrutiny that applies to transgender inmates’
equal-protection claims challenging sex-based classifications in prisons. As Judge Tymkovich previewed,
“only the Supreme Court can truly solve th[e] conflict”
in the caselaw. (Pet. App. 124a.) Second, the Tenth
Circuit majority endorsed a first-of-its-kind rule making it unconstitutional for a male officer to search a
biological, preoperative male inmate if that inmate
“identifies” as female. To the majority, there can be
“no ‘legitimate penological purpose’” for such crossidentified-gender searches. (Id. at 59a.) Both issues
require the Court’s immediate attention.
A. Lower courts are split on the constitutional scrutiny applicable to sex-based
equal-protection claims in prisons
Judge Tymkovich said it best: “court[s are] between a rock and a hard place” in deciding equal-protection challenges to sex-based classifications in prisons. (Id. at 119a.) The Court in Washington v. Harper
spoke in absolutes: the standard for prison policies infringing inmates’ constitutional rights is “whether the
regulation is ‘reasonably related to legitimate penological interests.’ This is true even when the constitutional right claimed to have been infringed is fundamental[.]” 494 U.S. 210, 223 (1990) (quoting Turner v.
Safley, 482 U.S. 78, 89 (1987)). Yet, the Court in VMI
emphasized that “all gender-based classifications today warrant heightened scrutiny.” 518 U.S. at 555. So,
where does that leave jail policies that classify by sex?
Lower courts have split at least three ways on the
level of constitutional scrutiny applied to equal-protection claims in prisons. Firmly entrenched on the
heightened-scrutiny side of the split are the Eighth,
23
Ninth, and Tenth Circuits. These circuits hypothesize
that VMI announced a categorical rule that all classifications based on sex are subject to heightened scrutiny—no matter the circumstances. Harrison v.
Kernan, 971 F.3d 1069, 1076 (9th Cir. 2020) (“We now
hold that prison regulations …, which facially discriminate on the basis of gender, must receive intermediate scrutiny.”); Roubideaux v. N.D. Dep’t of Corr. &
Rehab., 570 F.3d 966, 974 (8th Cir. 2009) (applying
VMI and adopting heightened scrutiny). (See also Pet.
App. 18a (“[I]t is now firmly established the Equal
Protection Clause requires courts to apply ‘a heightened standard of review’ to government classifications
“based on gender.”); but see Pet. App. 42a (“courts are
split on whether intermediate scrutiny applies to
[equal-protection] claims” in jails).)
The logic of these circuits is that Turner’s reasonableness test predates VMI, and the Court’s later decision in Johnson v. California, 543 U.S. 499 (2005),
carving out a narrow exception from Turner for racebased segregation, means that Turner and Washington must be subject to other exceptions. As the Ninth
Circuit held, “although the Supreme Court has not yet
so held,” the justification for a higher level of scrutiny
in Johnson applies to “the right not to be discriminated against in prison based on gender.” Harrison,
971 F.3d at 1077. (See also Pet. App. 41a (noting “tension between VMI’s categorical holding that all sex
discrimination triggers heightened scrutiny and
Washington’s categorical holding that all prison policies … undergo rational-basis scrutiny,” but nonetheless applying heightened scrutiny).)
24
On the Turner side of the split are the Second,
Fourth, and D.C. Circuits. In Veney v. Wyche, the
Fourth Circuit stated the rule plainly:
[W]hen equal protection challenges arise in a
prison context … courts must adjust the level
of scrutiny to ensure that prison officials are
afforded the necessary discretion to operate
their facilities in a safe and secure manner. In
a prison context, therefore, we must determine whether the disparate treatment is “reasonably related to [any] legitimate penological
interests.”
293 F.3d 726, 732 (4th Cir. 2002). The Second and
D.C. Circuits are in accord. See Benjamin v. Coughlin,
905 F.2d 571, 575 (2d Cir. 1990); Williamson v. Maciol, 839 F. App’x 633, 636 n.2 (2d Cir. 2021) (quoting
Benjamin and stating “our cases apply this Turner
standard ‘to the assessment of equal protection claims
in the prison setting’”); Women Prisoners of D.C. Dep’t
of Corr. v. District of Columbia, 93 F.3d 910, 931–32
(D.C. Cir. 1996) (addressing equal-protection claim
and citing Turner and stating “[b]ecause courts have
little experience in the ‘inordinately difficult’ task of
running a prison, they should give deference to prison
officials where possible”); Doe v. McHenry, 763 F.
Supp. 3d 81, 88 (D.D.C. 2025) (noting Johnson did not
change the level of scrutiny applicable to sex-based
equal-protection claims against prison policies). Like
Judge Tymkovich, these circuits recognize that
“Turner—and the caselaw applying it—prescribe deferential rational basis review for jail policies impacting constitutional rights other than race,” and the
later VMI and Johnson decisions did nothing to
change that mandate. (Pet. App. 91a.)
25
For claims by transgender inmates specifically,
yet another vein of the split has developed focusing on
whether a transgender female inmate, for example, is
similarly situated to a biologically female inmate. The
Equal Protection Clause “is essentially a direction
that all persons similarly situated should be treated
alike.” City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439 (1985). Thus, in the first instance, a
transgender inmate must “show that [he or] she was
‘similarly situated’ to inmates receiving differential
treatment.” (Pet. App. 84a (Tymkovich, J., dissenting).) But a biologically male inmate (even if the inmate identifies as female) is not similarly situated to
biologically female inmates. (Id.) This was the holding
in Armstrong v. Mid-Level Prac. John B. Connally
Unit, 2020 WL 230887, at *8 (W.D. Tex. Jan. 15,
2020). There, a transgender female inmate compared
herself to biologically female inmates who qualified
for vaginoplasty surgery. The court rejected the comparison: “Armstrong is … attempting to equate himself as a transgender [fe]male to a cisgender female for
purposes of an equal protection claim. However, Armstrong is not similarly situated.” Id. The court in Williams v. Kelly held similarly: “because plaintiff [a
transgender female] is not ‘similarly situated’ to the
prisoners she uses as a basis of comparison, her equal
protection claim necessarily fails.” 2018 WL 4403381,
at *12 (E.D. La. Aug. 27, 2018). In each of these cases,
the prisoner-plaintiff failed to clear the threshold
equal-protection inquiry, so the court did not have to
apply any level of constitutional scrutiny.
Clarity on the level of scrutiny—if any—applicable to transgender inmates’ sex-discrimination claims
is exceedingly important. Under Turner, it is the
plaintiff’s burden to “show that any ‘difference in
26
treatment was not reasonably related to’ its ‘legitimate penological interest[]’ in institutional security.”
(Pet. App. 99a (Tymkovich, J., dissenting) (quoting
Fogle v. Pierson, 435 F.3d 1252, 1261 (10th Cir.
2006)).) Such review is dispositive in cases like this
one where the “obvious” reason “for the jail’s sex-based
classifications is that doing so is the best way to regulate institutional security in the dynamic jail environment,” like a county jail. (Id. at 101a.)
Under heightened scrutiny, however, the prison
official must prove “a justification for the sex-based
classification that is ‘exceedingly persuasive,’ and that
classification must serve ‘important governmental objectives’ through means ‘substantially related to’
achieving those objectives.” (Id. at 31a (majority op.)
(quoting Doe through Doe v. Rocky Mountain Classical
Acad., 99 F.4th 1256, 1260 (10th Cir. 2024), and VMI,
518 U.S. at 524).) This is antithetical to Turner’s core
teaching of deference to legitimate penological interests and trusting (not disregarding) administrative
expertise in the “inordinate[] difficult[y]” of running
prisons and jails. (Id. at 90a (Tymkovich, J., dissenting) (collecting cases).) Throwing away Turner in
transgender-inmate litigation also means these cases
will increase the time and expense of litigation because, ultimately, the cases will turn on what the
finder of fact “believes” in terms of science and the
fierce social debate surrounding transgender identity.
It is highly unlikely a factfinder is going to credit “important government objectives” of classifying based on
biological sex if the factfinder doubts the existence of
a binary sex dichotomy altogether. This is why Turner
must apply. Prisons aren’t reflective of society writ
large—they are dynamic places that are often volatile
and unpredictable, requiring prison officials to
27
manage the risk for all, including segregating inmates
and detainees based on sex. 4
At present, how courts approach equal-protection
claims by transgender inmates, including the legal
standards they apply, depends entirely on the jurisdiction in which inmates are housed. That is untenable. Only this Court can resolve who is right on the
level of constitutional scrutiny.
B. The majority disregarded the Court’s
strip-search precedent by announcing
there can be no “legitimate penological
purpose” for cross-identified-gender
searches
The “ultimate measure of the constitutionality of
a governmental search is ‘reasonableness,’” Carpenter
v. United States, 585 U.S. 296, 316 (2018) (cleaned
up). The reasonableness standard “is not capable of
precise definition or mechanical application,” but rather requires “balancing … the need for the particular
search against the invasion of personal rights that the
search entails.” Bell v. Wolfish, 441 U.S. 520, 559
(1979). The Court made plain in Bell—and reaffirmed
in Florence v. Board of Chosen Freeholders of County
of Burlington, 566 U.S. 318 (2012)—that, “[b]alancing
the significant and legitimate security interests of the
institution against the privacy interests of the
4 Federal regulations acknowledge the inherent need for pe-
nological deference. See 28 C.F.R. § 115.42 (acknowledging
prison and jail officials’ discretion to consider many factors in
making housing decisions for transgender inmates—including
the health and safety of the inmate, the inmate’s stated preference, and whether the placement would present safety and management concerns—and to ultimately choose a housing placement that differs from the inmate’s stated preference).
28
inmates,” visual body-cavity inspections in prisons are
constitutionally permissible. Id. at 560.
Of course, this must be the case. “Maintaining
safety and order at [federal, state, and local] institutions requires the expertise of correctional officials,
who must have substantial discretion to devise reasonable solutions to the problems they face.” Florence,
566 U.S. at 326. The Court has consistently “confirmed the importance of deference to correctional officials and explained that a regulation impinging on
an inmate’s constitutional rights must be upheld ‘if it
is reasonably related to legitimate penological interests.’” Id. (quoting Turner, 482 U.S. at 89).
This Court has never said cross-sex—much less
cross-identified-gender—searches are unconstitutional. To be sure, over the last thirty years inmates
have regularly challenged cross-sex strip searches in
prisons. See Byrd v. Maricopa Cnty. Sheriff’s Dep’t,
629 F.3d 1135, 1146 (9th Cir. 2011) (describing the
“litany of cases” over the last thirty years). But even
there, no circuit has ruled that such searches are categorically off limits. They universally recognize that
“emergency or exigent circumstances” may require
such searches, id. at 1143, and still other circuits have
upheld policies that delegate the decision-making authority to use cross-sex searches to prison officials, see
Oliver v. Scott, 276 F.3d 736, 743 (5th Cir. 2002).
Here, the Tenth Circuit held that, absent emergency circumstances, there can be “no ‘legitimate penological purpose’” for a cross-identified-gender search
and that prison officials must accept the gender by
which the inmate identifies, even if the chosen identity is inconsistent with biological characteristics (e.g.,
a transgender female inmate with male genitals) and
29
even if the chosen identity changes over time (e.g., an
inmate vacillates between identifying consistent with
and inconsistent with biology), without regard to any
other legitimate interests. (See Pet. App. 59a.)
This novel ruling is a watershed in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
Now officials in this six-state area—from the highly
secure federal correctional facilities in Florence, Colorado, to the smallest local county and municipal jail in
Kansas and Oklahoma—must eschew same-sex
search policies in favor of recognizing a new constitutional right that “requires female deputies to strip
search biologically male inmates who identify as
women.” (Id. at 105a (Tymkovich, J., dissenting).) The
Tenth Circuit’s new gender-identity rule is clearly
wrong as against Bell and Florence.
“[I]t is generally considered a greater invasion to
have one’s naked body viewed by a member of the opposite sex.” (Id. at 58a (majority op.).) But what about
the female prison officers who must perform the
search? As Judge Tymkovich recognized, under Griffith’s view “female guards will now have to perform
cross-sex strip searches. Dignitary interests run both
ways.” (Id. at 102a, n.45 (Tymkovich, J., dissenting).)
To the majority, it is constitutionally required for a female deputy to search Griffith’s naked body in private,
including examining Griffith’s penis and scrotum. But
such a rule has it exactly backwards.
The Tenth Circuit’s rule will also remove prison
officials’ discretion to shape search policies that promote compassion and understanding while maintaining security and privacy interests of the institution.
Take the search policy at issue here. The County assigned a female deputy to search Griffith above the
30
waist because Griffith had developed female secondary sex characteristics, including breasts, from the
feminizing hormones she was taking. (Id. at 7a–8a.)
But, because Griffith still had male genitals, the
County assigned a male deputy to search Griffith below the waist. (Id. at 8a–9a.) This was a commendable
effort in keeping with Turner to apply administrative
expertise to solve a present problem while affording
Griffith as much dignity and respect as possible during the visual search process. Running prisons “is an
inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of
which are peculiarly within the province of the legislative and executive branches of government.” Turner,
482 U.S. at 85. The Tenth Circuit’s decision, however,
subordinates administrative expertise to an inmate’s
chosen gender and fundamentally upends the inmatejailer power dynamic by forcing officers to defer to an
inmate’s stated preferences. It also ignores the everchanging situations of a jail setting, including the
availability of male and female officers in varying detention settings, the fact that one’s chosen gender does
not always correspond with one’s reproductive anatomy, and the fact that an inmate’s gender identity
could easily change over the course of incarceration for
both legitimate and illegitimate reasons.
The Tenth Circuit’s new rule is unworkable and
forces a lose-lose on prison officials and officers. It is
also out of step with clear precedent from this Court,
requiring immediate intervention.
CONCLUSION
The petition for a writ of certiorari should be
granted, and the Court should decide the important
prison-administration questions presented. If it does
31
not decide these questions now, the Court should at
least grant, vacate, and reverse the Tenth Circuit’s decision. The majority decision relied extensively on
Fowler v. Stitt, 104 F.4th 770, 789 (10th Cir. 2024), to
anchor its erroneous equal-protection analysis, and
the Court has already reversed and vacated that decision in Stitt v. Fowler, 145 S. Ct. 2840 (2025). It should
at a minimum do the same here.
Respectfully submitted,
MICHAEL FRANCISCO
JULIAN R. ELLIS, JR.
FIRST & FOURTEENTH, PLLC Counsel of Record
800 Connecticut Ave NW,
CHRISTOPHER O. MURRAY
LAURA J. ELLIS
Suite 300
Washington, DC 20006
FIRST & FOURTEENTH, PLLC
(202) 998-1978
2 N. Cascade Avenue,
Suite 1430
NATHAN J. WHITNEY
Colorado Springs, CO 80903
First Asst. County Attorney
(719) 428-4937
STEVEN W. MARTYN
julian@first-fourteenth.com
Senior County Attorney
EL PASO COUNTY
ATTORNEY’S OFFICE
200 S. Cascade Avenue
Colorado Springs, CO 80903
(719) 520-6485
HEIDI K. WILLIAMS
Senior County Attorney/
Sheriff’s Legal Advisor
EL PASO COUNTY
SHERIFF’S OFFICE
27 East Vermijo Avenue
Colorado Springs, CO 80903
(719) 520-7264
Attorneys for Petitioners
OCTOBER 7, 2025
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