Amicus Curiae Brief — Joseph J. Roybal, Sheriff, El Paso County, Colorado, et al., Petitioners v. Darlene Griffith

No. 25-442

IN THE

Supreme Court of the United States

JOSEPH J. ROYBAL, SHERIFF,

EL PASO COUNTY, COLORADO, ET AL.,

Petitioners,

v.

DARLENE GRIFFITH,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF OF AMICI CURIAE THE STATES OF KANSAS,

OKLAHOMA, ALABAMA, ARKANSAS, FLORIDA,

GEORGIA, IDAHO, INDIANA, IOWA, LOUISIANA,

MISSISSIPPI, MISSOURI, MONTANA, NEBRASKA,

NORTH DAKOTA, OHIO, SOUTH CAROLINA,

SOUTH DAKOTA, TEXAS, UTAH, VIRGINIA, WEST

VIRGINIA, AND WYOMING AND THE ARIZONA

LEGISLATURE IN SUPPORT OF PETITIONERS

GENTER DRUMMOND

Attorney General

KRIS W. KOBACH

Attorney General

GARRY M. GASKINS, II

Solicitor General

ZACH WEST

Director of Special

Litigation

ANTHONY J. POWELL*

Solicitor General

ADAM T. STEINHILBER

Assistant Solicitor General

Office of the Oklahoma

Attorney General

313 NE 21st St.

Oklahoma City, OK 73105

(405) 521-3921

Zach.West@oag.ok.gov

Office of the Kansas

Attorney General

120 SW 10th Ave., 2nd Floor

Topeka, KS 66612

(785) 296-2215

Anthony.Powell@ag.ks.gov

Counsel for Amici

(additional counsel listed inside)

November 10, 2025

*Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................. i

TABLE OF CITED AUTHORITIES .......................... ii

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF THE ARGUMENT ........................... 3

ARGUMENT .............................................................. 4

I.

Sex-based

housing

policies

are

constitutional and necessary ............................ 4

II.

The Tenth Circuit should have applied

Turner deference because housing inmates

is a quintessential administrative decision ...... 11

III.

The Tenth Circuit ran afoul of Skrmetti ........ 15

CONCLUSION ......................................................... 19

i

TABLE OF CITED AUTHORITIES

Page

Cases

Adams ex rel. Kasper v.

Sch. Bd. of St. Johns Cnty.,

57 F.4th 791 (11th Cir. 2022) ............................... 8

Bell v. Wolfish,

441 U.S. 520 (1979) ......................................... 9, 18

Brandt ex rel. Brandt v. Griffin,

147 F.4th 867 (8th Cir. 2025) ............................. 16

Bridge v. Okla. State Dep’t of Educ.,

No. 24-6072 (10th Cir. Feb. 18, 2025) ................ 17

Brown v. Plata,

563 U.S. 493 (2011) ............................................. 11

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) ........................................... 5, 6

Cox v. Fluery,

No. 2:08-CV-176, 2009 WL 3011221 (W.D.

Mich. Sep. 16, 2009) ............................................ 10

Darlingh v. Maddaleni,

142 F.4th 558 (7th Cir. 2025) ............................. 16

Est. of DiMarco v. Wyo. Dep’t

of Corr., Div. of Prisons,

473 F.3d 1334 (10th Cir. 2007) ........................... 16

Farmer v. Brennan,

511 U.S. 825 (1994) ............................................... 7

ii

Florence v. Bd. of Chosen

Freeholders of Cnty. of Burlington,

566 U.S. 318 (2012) .............................. 5, 11, 13-15

Fowler v. Stitt,

104 F.4th 770 (10th Cir. 2024) ........................... 17

Freitag v. Ayers,

468 F.3d 528 (9th Cir. 2006) ................................. 7

Johnson v. California,

543 U.S. 499 (2005) ....................................... 14, 15

Klinger v. Dep’t of Corr.,

31 F.3d 727 (8th Cir. 1994) ................................... 9

Lamb v. Maschner,

633 F. Supp. 351 (D. Kan. 1986) .......................... 8

Little v. Hecox,

No. 24-38 ............................................................. 18

Mauro v. Arpaio,

188 F.3d 1054 (9th Cir. 1999) ............................... 7

Meachum v. Fano,

427 U.S. 215 (1976) ......................................... 1, 10

Nordlinger v. Hahn,

505 U.S. 1 (1992) ................................................... 5

Olim v. Wakinekona,

461 U.S. 238 (1983) ............................................. 10

Poe ex rel. Poe v. Drummond,

149 F.4th 1107 (10th Cir. 2025) ......................... 17

Reynolds v. Quiros,

25 F.4th 72 (2d Cir. 2022) ..................................... 7

iii

Rhodes v. Chapman,

452 U.S. 337 (1981) ............................................. 17

Sandin v. Conner,

515 U.S. 472 (1995) ....................................... 12, 16

Star v. Gramley,

815 F. Supp. 276 (C.D. Ill. 1993) .......................... 6

Shaw v. Murphy,

532 U.S. 223 (2001) ............................................. 12

Stitt v. Fowler,

145 S. Ct. 2840 (2025) ......................................... 17

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

600 U.S. 181 (2023) ............................................. 14

Turner v. Safley,

482 U.S. 78 (1987) ...................... 1, 3, 11-15, 16, 18

United States v. Skrmetti,

145 S. Ct. 1816 (2025) ............................. 3-5, 15-18

Washington v. Harper,

494 U.S. 210 (1990) ....................................... 12, 13

West v. Radtke,

48 F.4th 836 (7th Cir. 2022) ............................. 5, 7

West Virginia v. B.P.J.,

No. 24-4318 ................................................ 14

Women Prisoners of D.C. Dep’t of Corr. v. D.C.,

93 F.3d 910 (D.C. Cir. 1996) ................................. 6

Rules

S. Ct. R. 37.2 ............................................................... 1

iv

Other Authorities

FDA, Sex as a Biological Variable (Jan. 30, 2025) ...... 5

Rosemary Herbert, Women’s Prisons: An Equal

Protection Evaluation,

94 Yale L.J. 1182 (1985) ....................................... 5

Matthew W. Meskell, The History of Prisons in

the United States from 1777 to 1877,

51 Stan. L. Rev. 839 (1999)............................. 2, 11

Christine M. Safarik, Constitutional Law—Separate

But Equal: Jeldness v. Pearce—An Analysis

of Title IX Within the Confines of Correctional

Facilities,

18 W. New Eng. L. Rev. 337 (1996) .................... 11

Lynn D. Wardle & Lincoln C. Oliphant, In Praise

of Loving: Reflections on the “Loving Analogy”

for Same-Sex Marriage,

51 How. L.J. 117 (2007) ........................................ 6

v

INTEREST OF AMICI CURIAE 1

Amici curiae the States of Kansas, Oklahoma,

Alabama, Arkansas, Florida, Georgia, Idaho, Indiana,

Iowa, Louisiana, Mississippi, Missouri, Montana,

Nebraska, North Dakota, Ohio, South Carolina, South

Dakota, Texas, Utah, Virginia, West Virginia, and

Wyoming and the Arizona Legislature operate,

regulate, and oversee numerous prisons, jails, and

other correctional institutions. Confining convicted

criminals and people who have been lawfully charged

with, or suspected of, a crime “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, 84–85 (1987). The task

is neither for the faint of heart nor for judges to second

guess absent truly compelling reasons. And among

correctional facilities, jails face a particularly tough

task, as they must process, house, and keep safe a

constant stream of short-term inmates. Amici have a

strong interest in ensuring correctional facilities can

operate efficiently, effectively, and safely without

micromanagement from the bench. See Meachum v.

Fano, 427 U.S. 215, 229 (1976) (“The federal courts do

not sit to supervise state prisons, the administration

of which is acute interest to the States.”).

Instead of appropriately affording an elected

sheriff the flexibility and discretion necessary to

1 Amici provided timely notice to the parties of their intent to file

this brief. See Rule 37.2.

1

safely manage the jail in El Paso County, Colorado,

the Tenth Circuit applied a searching standard of

review and granted transgender-identifying inmates

specialized status under the Equal Protection Clause.

The court, as Judge Tymkovich observed in dissent,

effectively held “that housing inmates based on their

biological sex is presumptively unconstitutional.”

App. 80a. The Constitution requires no such radical

departure from centuries of settled correctional

practice. See, e.g., Matthew W. Meskell, The History of

Prisons in the United States from 1777 to 1877, 51

Stan. L. Rev. 839, 847 (1999) (“[O]n April 5, 1790, the

Pennsylvania legislature passed the law that

established the legal foundation for America’s first

true prison system,” a law that “ordered that jailers

segregate the sexes.”). This Court has never hinted

that housing inmates by biological sex is

constitutionally suspect, much less presumptively

unconstitutional.

The Tenth Circuit’s decision threw out

prudence and precedent, and it places correctional

facilities in an untenable situation. By having to

house inmates based on asserted gender identity,

facilities will inevitably infringe upon the privacy and

safety of other inmates and guards. In other words,

the facilities are sued if they do, sued if they don’t.

And smaller, rural facilities with minimal resources

will be hardest hit in trying to juggle these competing

demands. This Court should thus grant the petition

for a writ of certiorari and reverse the Tenth Circuit.

2

SUMMARY OF THE ARGUMENT

In effectively holding sex-based housing

policies

presumptively

unconstitutional

in

correctional facilities, the Tenth Circuit erred in at

least three ways, each of which warrants this Court’s

intervention.

First, sex-based housing policies comport with

the Constitution because, at bottom, they treat

similarly situated inmates alike. All inmates—male

and female—are housed with members of their

biological sex. These policies protect inmate and guard

safety, security, and privacy. No state action runs

afoul of the Equal Protection Clause. In concluding

otherwise, the Tenth Circuit flipped Equal Protection

analysis on its head while flying in the face of history

and common sense.

Second, running a correctional facility is a

tough, dangerous task for which the courts are the

least qualified among the three branches of

government. Recognizing reality, this Court has

repeatedly admonished that Turner deference is

generally the appropriate lens through which courts

should review the policies of correctional facilities.

This Court has not excluded policies that implicate

sex from Turner’s reach. The Tenth Circuit erred in

applying intermediate scrutiny instead of the

requisite deference.

Finally, the Tenth Circuit’s searching review

was especially inappropriate in light of Skrmetti’s

directive that courts not second-guess decisions by the

political branches regarding transgender issues. Had

the Tenth Circuit waited a few days before denying

rehearing, it could have reconsidered the case with

3

this Court’s guidance. The Tenth Circuit rushed

ahead, and now this Court should step in.

ARGUMENT

A correctional facility separately housing men

and women is a quintessential administrative

decision, with undeniable historical backing, to which

courts should readily defer. Such a policy comports

with the Equal Protection Clause because there is no

impermissible differential treatment, and it protects

safety and privacy many times over.

Common sense sex-based inmate housing

policies are now effectively unconstitutional in the

Tenth Circuit. Correctional facilities in largely rural

states will thus be placed in an untenable position of

elevating the preferences of transgender-identifying

inmates over the need to maintain safety and order

and to protect the rights of other inmates and guards.

Making matters worse, the Tenth Circuit reached this

conclusion through searching review that was

particularly inappropriate in light of this Court’s

recent guidance in United States v. Skrmetti, 145 S.

Ct. 1816, 1836 (2025). Accordingly, this Court should

grant the petition for a writ of certiorari and make

clear that El Paso County does not contravene the

Constitution by separating inmates by their sex.

I.

Sex-based housing policies

constitutional and necessary.

are

Biology matters. See, e.g., Skrmetti, 145 S. Ct.

at 1829–30 (recognizing that “biological differences

between men and women . . . may contribute to

4

variations seen in the safety and efficacy of drugs,

biologics, and medical devices” (quoting FDA, Sex as a

Biological Variable (Jan. 30, 2025)). And one of the

situations in which it matters most is when inmates

are involuntarily housed in correctional facilities.

After all, “[c]ourts have long recognized that sex is a

trait relevant to inmate privacy.” West v. Radtke, 48

F.4th 836, 850 (7th Cir. 2022). Although prisons are

generally designated for either men or women, jails

are a different beast, as they usually process and

house both men and women for short periods of time.

See Florence v. Bd. of Chosen Freeholders of Cnty. of

Burlington, 566 U.S. 318, 326 (2012); Rosemary

Herbert, Women’s Prisons: An Equal Protection

Evaluation, 94 Yale L.J. 1182, 1182 (1985) (“At the

federal state, and county levels, women are

incarcerated in facilities that separate them from

men. Typically, state prisons effect this separation

through institutions designed exclusively for women.

County jails, on the other hand, most often segregate

women in a unit within the confines of a larger

facility.”).

The Equal Protection Clause is not a shield

against any and all government action. See Skrmetti,

145 S. Ct. at 1828. Rather, the Clause “essentially . . .

direct[s] that all persons similarly situated should be

treated alike.” City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985). In other words, the

Clause lives up to its name by ensuring equal

treatment among “persons who are in all relevant

respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10,

(1992). A government policy that meets this standard

5

is “presumed to be valid” and will be upheld if it bears

a rational relationship to a legitimate government

interest. City of Cleburne, 473 U.S. at 440.

Correctional facility housing policies that

separate inmates by sex do not violate the Equal

Protection Clause because they treat all similarly

situated individuals alike, and for good reason.

Biological men are housed with biological men, and

biological women are housed with biological women.

As Judge Tymkovich succinctly observed in his

dissent below, the housing policy “classif[ies] inmates

based on sex, not gender identity.” App. 85a. Thus, the

proper comparison group here is other biological

males, and they received the same treatment under

the policy as the plaintiff: being housed with biological

males. See App. 84a–86a; see also, e.g., Star v.

Gramley, 815 F. Supp. 276, 278 (C.D. Ill. 1993)

(rejecting similar argument because “the plaintiff is

treated no differently from any other similarly

situated (i.e., male) inmate”). And this is why, among

other reasons, it has long been recognized that “the

segregation of inmates by sex is unquestionably

constitutional.” Women Prisoners of D.C. Dep’t of Corr.

v. D.C., 93 F.3d 910, 926 (D.C. Cir. 1996).

Generally, correctional facility housing policies

are based on sex, not asserted or perceived gender

identity, because biology fundamentally requires this

separation. See Lynn D. Wardle & Lincoln C.

Oliphant, In Praise of Loving: Reflections on the

“Loving Analogy” for Same-Sex Marriage, 51 How.

L.J. 117, 157 (2007) (recognizing that “[e]very state

6

now segregates its prisoners by sex”). These facilities

pose myriad dangers that necessitate sex-based

housing. At the most basic level, forcing inmates to

reside with members of the opposite sex invades their

privacy and places them in distressing situations. See

West, 48 F.4th at 850. And more severe harms, like

sexual harassment, abuse, and violence, cement the

need for this separation. Correctional facilities “are

necessarily dangerous places; they house society’s

most antisocial and violent people in close proximity

with one another,” meaning “brutality and sexual

aggression” among inmates is a constant risk. See

Farmer v. Brennan, 511 U.S. 825, 858 (1994) (Thomas,

J., concurring) (quotation marks omitted). As such,

any efforts made to “reduc[e] sexual harassment” (like

separating men and women) are certainly

“legitimate.” See Mauro v. Arpaio, 188 F.3d 1054,

1059 (9th Cir. 1999).

Housing men with women, and vice versa,

threatens harm both to inmates and guards, which

could lead to significant liability for correctional

facilities. See Freitag v. Ayers, 468 F.3d 528, 539 (9th

Cir. 2006) (“Nothing in the law suggests that prison

officials may ignore sexually hostile conduct and

refrain from taking corrective actions that would

safeguard the rights of the victims, whether they be

guards or inmates.”); see also Reynolds v. Quiros, 25

F.4th 72, 85 (2d Cir. 2022) (recognizing that

correctional facilities may incur liability if courtmandated housing decisions result in “a sexually

hostile work environment for . . . employees created

by inmates’ behavior”). The potential danger is

7

particularly acute for women guards and inmates, as

“scientific studies indicate that transgenderidentifying females, even those who have undergone

testosterone suppression to lower their testosterone

levels to within that of an average biological female,

retain most of the puberty-related advantages of

muscle mass and strength seen in biological males.”

See Adams ex rel. Kasper v. Sch. Bd. of St. Johns

Cnty., 57 F.4th 791, 820 (11th Cir. 2022) (en banc)

(Lagoa, J., specially concurring).

The Tenth Circuit’s opinion places facilities

between a rock and a hard place, with the inevitable

result being that someone’s rights will be violated and

the facility will be liable.

Again, sex-based housing necessarily protects

safety and privacy. As one early court to consider this

issue prudently recognized:

A male prisoner cannot be housed in a

women’s prison. Even though a transfer

may relieve [the male prisoner’s]

anxieties, clearly a violation of the

women’s rights would be at issue. Prison

authorities must be given great

deference to formulate rules and

regulations that satisfy a rational

purpose and segregation of the sexes is a

rational purpose.

Lamb v. Maschner, 633 F. Supp. 351, 353 (D. Kan.

1986). That court’s reasoning was rooted in common

sense and in this Court’s admonition that “[p]rison

8

administrators . . . should be accorded wide-ranging

deference in the adoption and execution of policies and

practices that in their judgment are needed to

preserve internal order and discipline and to maintain

institutional security.” Bell v. Wolfish, 441 U.S. 520,

547 (1979). This deference (discussed more below)

counsels against the Tenth Circuit’s searching review

in an effort to manufacture a violation of the Equal

Protection Clause. See Klinger v. Dep’t of Corr., 31

F.3d 727, 732–33 (8th Cir. 1994) (recognizing that

Turner “counsel[ed] against” finding that female

inmates at one facility and male inmates at another

facility were “similarly situated for purposes of prison

programs and services”).

The Tenth Circuit effectively and improperly

conflated asserted gender identity with sex, and its

reasoning extends well beyond El Paso County’s jail.

See App. 24a–28a. All sex-based housing policies in

correctional facilities (and perhaps elsewhere) in the

Circuit are now suspect. There is little daylight

between the complaint here and the inevitable future

lawsuits brought by transgender-identifying inmates

relying upon the opinion. This is particularly

destructive in the Tenth Circuit, where many of the

communities are rural and rely on under resourced

jails. Yet now these facilities must likely accede to the

desires of any inmate whose claimed gender identity

lies with the opposite sex.

The court’s reasoning just as easily applies to

state prisons, and it will inevitably force them to

transfer biologically male inmates to female prisons.

9

But as this Court has affirmed, “The Constitution

does not . . . guarantee that the convicted prisoner will

be placed in any particular prison.” Meachum, 427

U.S. at 224; see also Olim v. Wakinekona, 461 U.S.

238, 245–48 (1983) (recognizing ability of prisons to

freely transfer inmates). Although “[a] prisoner has no

right under federal law to compel . . . a transfer to

another facility,” Cox v. Fluery, No. 2:08-CV-176, 2009

WL 3011221, at *5 (W.D. Mich. Sep. 16, 2009)

(collecting cases), the Tenth Circuit effectively created

one, so long as the transfer is claimed necessary to

align an inmate’s housing with an asserted gender

identity, regardless of biological sex. The opinion also

poses a special danger to the federal prison system,

given the high-profile prisons and prisoners in

Leavenworth, Kansas, and Florence, Colorado, that

lie within the Circuit. These inmates, some of the

Nation’s worst and most dangerous offenders, may

now invoke a recent change in asserted gender

identity in an attempt to compel transfer to a more

favorable facility.

Sex-based housing policies in correctional

facilities align with both common sense and the

Constitution. They promote order, safety, and privacy

in highly volatile environments. The Tenth Circuit’s

belief to the contrary is incorrect and distorts Equal

Protection analysis.

10

II.

The Tenth Circuit should have

applied Turner deference because

housing inmates is a quintessential

administrative decision.

Common sense, sound judgment, and our

constitutional structure establish that courts should

not readily second-guess those who administer

correctional facilities. See Turner, 482 U.S. at 84–85.

And courts should especially avoid doing so when the

facilities are carrying out universal practices that

have endured since our country’s founding. See

Meskell, supra, at 847; see also Christine M. Safarik,

Constitutional Law—Separate But Equal: Jeldness v.

Pearce—An Analysis of Title IX Within the Confines of

Correctional Facilities, 18 W. New Eng. L. Rev. 337,

337 (1996) (“Although society generally has attempted

to eradicate the separation of persons on the basis of

an immutable characteristic, the segregation of

prisoners on the basis of sex has withstood this

societal evolution. Sexually segregated prisons are, in

fact, the ‘norm’ throughout the United States.”

(footnotes omitted)).

“The difficulties of operating a detention center

must not be underestimated by the courts.” Florence,

566 U.S. at 326. As Justice Scalia appropriately

recognized, “general concerns associated with judges’

running social institutions are magnified when they

run prison systems.” Brown v. Plata, 563 U.S. 493,

559 (2011) (Scalia, J., dissenting). Decades ago, this

Court appropriately put to rest the notion that judges

should “make the difficult judgments concerning

11

institutional operations” of correctional facilities.

Turner, 482 U.S. at 89 (quotation marks omitted); see

also, e.g., Shaw v. Murphy, 532 U.S. 223, 230 (2001)

(“[U]nder Turner and its predecessors, prison officials

are to remain the primary arbiters of the problems

that arise in prison management.”); Sandin v. Conner,

515 U.S. 472, 482 (1995) (recognizing “that federal

courts ought to afford appropriate deference and

flexibility to state officials trying to manage a volatile

environment”). Accordingly, “when a prison

regulation impinges on inmates’ constitutional rights,

the regulation is valid if it is reasonably related to

legitimate penological interests.” Turner, 481 U.S. at

89. In other words, Turner deference applies unless

this Court has specifically held otherwise.

The confinement of convicted criminals and

those lawfully accused or suspected of a crime poses

innumerable risks. Chief among them are physical

altercations between inmates, who may have

previously engaged in violent conduct, have severe

mental and psychological issues, and be driven by a

sense of desperation. Understandably, “[t]here are few

cases in which the State’s interest in combating the

danger posed by a person to both himself and others

is greater than in a prison environment, which, by

definition, is made up of persons with a demonstrated

proclivity for antisocial criminal, and often violent,

conduct.” Washington v. Harper, 494 U.S. 210, 225

(1990) (quotation marks omitted).

Safety issues—and the accompanying need for

deference—are magnified in jails, where “officials

12

there know so little about the people they admit at the

outset.” Florence, 566 U.S. at 336. Jails generally hold

people for short periods of time, perhaps only after an

initial booking or while awaiting trial or transfer to

another facility, meaning correctional officers may be

unable to readily ascertain how inmates will interact

with each other and with guards. See id. And given

the space and staffing capacities of jails, which will

generally be less robust than state and federal

prisons, jail staff often will be unable to accommodate

the highly individualized needs of inmates. Against

this backdrop, facility “administrators have not only

an interest in ensuring the safety of . . . staff[] and

administrative personnel, but also the duty to take

reasonable measures for the [inmates’] own safety.”

Washington, 494 U.S. at 225 (citation omitted). When,

as in this case, a jail’s policy is at issue, it is even more

appropriate for courts to defer to it.

The Tenth Circuit, contravening this Court’s

precedent, applied a heightened standard of review to

a bedrock administrative issue—inmate housing. See

App. 27a. As Judge Tymkovich observed (and as just

noted), the plaintiff’s Equal Protection Clause claim

was “foreclose[d]” because the plaintiff was “treated

identically to those with whom [the plaintiff] is

similarly situated, biological males.” App. 85a–86a.

That should have ended the case. But, assuming it

was appropriate for the court to have proceeded with

any scrutiny of the housing policy, Turner deference

was the most searching standard available and should

have applied because this Court has not excluded sex

from Turner’s reach. See App. 93a–94a.

13

In Johnson v. California, this Court made an

exception to Turner for decisions that implicate race

because “searching judicial review of racial

classifications is necessary to guard against [this]

invidious discrimination.” 543 U.S. 499, 511 (2005).

And the Court’s holding makes sense; after all, “[t]he

right not to be discriminated against based on one’s

race . . . is not a right that need necessarily be

compromised for the sake of proper prison

administration.” Id. at 510. The particularly heinous

nature of racial discrimination further compels

thorough judicial scrutiny. See, e.g., Students for Fair

Admissions, Inc. v. President & Fellows of Harvard

Coll., 600 U.S. 181, 206 (2023). Yet this Court has

noted that even racial discrimination may—in

extraordinarily rare cases—be permissible in

correctional facilities. See id. at 207; Johnson, 543

U.S. at 512–13.

In Johnson, the Court did not discuss a

carveout for policies that implicate sex, even though

its opinion came well after it had held that sex-based

policies, in most contexts, should be subject to

intermediate scrutiny. In fact, in Florence, which was

decided after both Virginia and Johnson, this Court

“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.’” 566 U.S. at 326 (quoting Turner, 482 U.S.

at 89). This Court has not indicated that anything but

Turner deference applies to correctional policies that

implicate sex. And it should not carve out sex because,

14

as previously discussed, there is a legitimate need to

separate inmates based on sex. The Tenth Circuit

(wrongly) got ahead of its skis in carving out sex as an

exception to Turner.

Turner’s deferential standard of review should

have governed the Tenth Circuit’s analysis because

the policy only implicated sex, not race. And the policy

passes this deferential standard with flying colors. As

previously noted, see § I, supra, sex-based housing

policies further the “compelling government

interest[s]” of maintaining privacy, safety, and order

in correctional facilities, see Johnson, 543 U.S. at 512;

Florence, 566 U.S. at 326. At the end of the day, sexbased

housing

policies

are

fundamentally

administrative decisions that fall squarely within

Turner.

III.

The Tenth Circuit ran afoul of

Skrmetti.

Judicial deference should be at its apex here.

First, a correctional facility’s administrative policy is

at issue. Second, the facility is a jail, which has its own

unique challenges. See Florence, 566 U.S. at 326, 336.

And

finally,

because

the

issue

involves

accommodating a transgender-identifying inmate, the

dispute enters an area where this Court recently held

that the political branches should be afforded “wide

discretion.” See Skrmetti, 145 S. Ct. at 1836; see also,

15

e.g., Brandt ex rel. Brandt v. Griffin, 147 F.4th 867,

884 (8th Cir. 2025) (applying Skrmetti).

In Skrmetti, this Court recognized that the

Equal Protection Clause is not violated every time

state action adversely impacts a transgenderidentifying person. See 145 S. Ct. at 1834. Although

that case involved state legislation, its reasoning

readily applies to local correctional policies. “[L]egal

debates surrounding transgender issues are profound

and unsettled,” Darlingh v. Maddaleni, 142 F.4th 558,

565 (7th Cir. 2025) (citing Skrmetti), and these issues

inevitably include ensuring transgender-identifying

inmates are housed in correctional facilities in a

manner designed to maximize safety and privacy for

all inmates in light of limited resources. An elected

county sheriff is certainly “more politically

accountable” than federal judges, and thus should

receive deference in creating and implementing

policies that implicate transgender inmates. See

Brandt, 147 F.4th at 884.

Correctional facilities are not perfect. There

will inevitably be times, especially in jails, when a

policy could have been better, or when another action

could have been taken. But through Turner and its

progeny, this Court has rejected as inappropriate the

judicial “second-guessing or micro-management” of

these facilities and their administrators. See Est. of

DiMarco v. Wyo. Dep’t of Corr., Div. of Prisons, 473

F.3d 1334, 1342 (10th Cir. 2007) (citing Sandin, 515

U.S. at 482–84). Indeed, “courts cannot assume that .

. . prison officials are insensitive to the requirements

16

of the Constitution or to the perplexing sociological

problems of how best to achieve the goals of the penal

function in the criminal justice system[.]” Rhodes v.

Chapman, 452 U.S. 337, 352 (1981). Skrmetti aligns

with Turner deference in this case. The Tenth Circuit

thus ran afoul of two lines of precedent.

Although Skrmetti was decided after the Tenth

Circuit issued its initial opinion, the Tenth Circuit

could—and should—have held the petition for

rehearing pending this Court’s decision. Over the

protests of four judges, App. 118a (Hartz, J.); App.

120a (Tymkovich, J., joined by Eid and Carson, JJ.),

the Tenth Circuit instead denied rehearing in early

June. The court was well aware of Skrmetti’s

forthcoming value, as it had already abated several

appeals in other cases so that it could benefit from

Skrmetti. See Poe ex rel. Poe v. Drummond, 149 F.4th

1107, 1119 (10th Cir. 2025) (similar law being

challenged as the Tennessee law in Skrmetti); Order,

Bridge v. Okla. State Dep’t of Educ., No. 24-6072 (10th

Cir. Feb. 18, 2025) (challenge to sex separation in

public school restrooms).

The Tenth Circuit’s error was particularly

egregious because its opinion below relied heavily on

Fowler v. Stitt, 104 F.4th 770 (10th Cir. 2024)—which

this Court vacated soon after (and in light of)

Skrmetti. See Stitt v. Fowler, 145 S. Ct. 2840 (2025).

Given the pending petition for a writ of certiorari in

Fowler, the Tenth Circuit should have foreseen the

distinct possibility of a grant-vacate-and-remand.

17

Instead, it pressed ahead with its radical and

transformative decision.

The Tenth Circuit’s opinion and denial of

rehearing were made without the benefit of Skrmetti.

If nothing else, this warrants another grant-vacateand-remand. 2

***

“Whether it be called a jail, a prison, or a

custodial center, the purpose of the facility is to

detain.” Bell, 441 U.S. at 537. And because lawfully

detaining people is hard and dangerous, decisions in

this realm deserve deference. Courts should not

readily

second-guess

the

administration

of

correctional

facilities.

The

Tenth

Circuit’s

unprecedented intrusion into the administration of a

county jail cannot stand. By effectively requiring

correctional facilities to house inmates according to

subjective asserted (or perceived) gender identity

rather than objective biological sex, the decision

imperils safety, privacy, and order throughout the

Tenth Circuit. The Constitution does not compel

States to elevate gender identity claims over inmate

safety and privacy. This Court’s intervention is

essential to restore the appropriate deference that

Turner, Bell, and (now) Skrmetti require.

2 It would also be worthwhile for this Court to grant-vacate-

and-remand this matter after it decides Little v. Hecox, No. 2438, and West Virginia v. B.P.J., No. 24-43.

18

CONCLUSION

For the foregoing reasons, this Court should

grant the petition for a writ of certiorari.

Respectfully submitted,

GENTER DRUMMOND

Attorney General

KRIS W. KOBACH

Attorney General

GARRY M. GASKINS, II

Solicitor General

ZACH WEST

Director of Special

Litigation

ANTHONY J. POWELL*

Solicitor General

ADAM T. STEINHILBER

Assistant Solicitor General

Office of the Oklahoma Office of the Kansas

Attorney General

Attorney General

120 SW 10th Ave., 2nd Floor

313 NE 21st St.

Oklahoma City, OK 73105 Topeka, KS 66612

(785) 296-2215

(405) 521-3921

Anthony.Powell@ag.ks.gov

Zach.West@oag.ok.gov

November 10, 2025

*Counsel of Record

Counsel for Amici

(additional counsel and signatories listed below)

19

STEVE MARSHALL

Alabama

Attorney General

CATHERINE L. HANAWAY

Missouri

Attorney General

TIM GRIFFIN

Arkansas

Attorney General

AUSTIN KNUDSEN

Montana

Attorney General

JAMES UTHMEIER

Florida

Attorney General

MICHAEL T. HILGERS

Nebraska

Attorney General

CHRISTOPHER M. CARR

Georgia

Attorney General

DREW H. WRIGLEY

North Dakota

Attorney General

RAÚL R. LABRADOR

Idaho

Attorney General

DAVE YOST

Ohio

Attorney General

THEODORE E. ROKITA

Indiana

Attorney General

ALAN WILSON

South Carolina

Attorney General

BRENNA BIRD

Iowa

Attorney General

MARTY J. JACKLEY

South Dakota

Attorney General

LIZ MURRILL

Louisiana

Attorney General

KEN PAXTON

Texas

Attorney General

LYNN FITCH

Mississippi

Attorney General

DEREK BROWN

Utah

Attorney General

20

JASON S. MIYARES

Virginia

Attorney General

KEITH G. KAUTZ

Wyoming

Attorney General

JOHN B. MCCUSKEY

West Virginia

Attorney General

STEVE MONTENEGRO

Speaker of the

Arizona House of

Representatives

WARREN PETERSEN

President of the

Arizona Senate

21