Opposition 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

U.S. Court of Appeals for the Tenth Circuit.

___________________________________________

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

___________________________________________

ANDY MCNULTY

MARI NEWMAN

NEWMAN | MCNULTY

1490 N. Lafayette St.

Suite 304

Denver, CO 80218

(720) 850-5770

DEVI M. RAO

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-3434

devi.rao@macarthurjustice.org

Attorneys for Respondent

QUESTIONS PRESENTED

1. Whether, at the Rule 12(b)(6) stage, the Tenth

Circuit erred by applying the level of scrutiny that

Petitioners conceded applied, thus declining to

address a novel theory not presented by Petitioners

and not embraced by any courts of appeals.

2. Whether, at the Rule 12(b)(6) stage, the Tenth

Circuit erred in its fact-specific application of this

Court’s well-settled balancing test for resolving

prison-search claims.

(i)

ii

TABLE OF CONTENTS

Questions Presented ....................................................i

Table of Authorities................................................... iii

Introduction ................................................................. 1

Statement of the Case ................................................. 1

Reasons for Denying the Petition ............................... 9

I. The Tenth Circuit did not decide the level-ofscrutiny question presented. ............................... 10

II. There is no circuit split. ....................................... 12

III.The Tenth Circuit opinion was correct. .............. 17

IV. The issues presented do not warrant this Court’s

review, and this case is a poor vehicle. ............... 19

Conclusion ................................................................. 27

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Beard v. Falkenrath,

97 F.4th 1109 (8th Cir. 2024) .............................. 14

Bell v. Wolfish,

441 U.S. 520 (1979) .............................................. 19

Benjamin v. Coughlin,

905 F.2d 571 (2d Cir. 1990) ................................. 15

Carter-el v. Boyer,

No. 1:19-cv-234, 2020 WL 939289

(E.D. Va. Feb. 25, 2020) ....................................... 20

City & Cty. of San Francisco v. Sheehan,

575 U.S. 600 (2015) .............................................. 12

Cutter v. Wilkinson,

544 U.S. 709 (2005) .............................................. 16

Doe v. McHenry,

763 F. Supp. 3d 81 (D.D.C. 2025) ........................ 20

Florence v. Board of Chosen Freeholders

of County of Burlington,

566 U.S. 318 (2012) .............................................. 19

Fowler v. Stitt,

104 F.4th 770 (10th Cir. 2024) ...................... 23, 24

Guy v. Espinoza,

No. 1:19-cv-00498, 2020 WL 309525

(E.D. Cal. Jan 21, 2020) ....................................... 20

iv

Harrison v. Kernan,

971 F.3d 1069 (9th Cir. 2020) ...... 13, 14, 16, 17, 18

Harrison v. Kernan,

No. 16-cv-07103, 2021 WL 4295303

(N.D. Cal. Sept. 21, 2021) .................................... 14

Johnson v. California,

543 U.S. 499 (2005) .............................. 8, 17, 21, 22

Jones v. Union County Sheriff’s Office,

No. 3:18-CV-00509, 2019 WL

5692753 (W.D.N.C. Nov. 4, 2019) ........................ 20

Munday v. Beaufort Cnty.,

No. 9:20-cv-02144, 2023 WL 9188398

(D.S.C. Mar. 31, 2023) ......................................... 15

NASA v. Nelson,

562 U.S. 134 (2011) .............................................. 12

Pitts v. Thornburgh,

866 F.2d 1450 (D.C. Cir. 1989) ...................... 16, 17

Roubideaux v. N.D. Dep’t of Corr. & Rehab.,

570 F.3d 966 (8th Cir. 2009) ................................ 14

Sabbats v. Clark,

No. 7:21-cv-00198, 2022 WL 4134771

(W.D. Va. Sept. 12, 2022) ..................................... 20

Stitt v. Fowler,

145 S. Ct. 2840 (2025) .......................................... 24

Snope v. Brown,

605 U.S. __, 145 S. Ct. 1534 (2025) ..................... 26

v

Trump v. CASA, Inc.,

606 U.S. 831 (2025) .............................................. 21

Turner v. Safley,

482 U.S. 78 (1987) .................................................. 6

United States v. Sineneng-Smith,

590 U.S. 371 (2020) ........................................ 11, 12

United States v. Skrmetti,

145 S. Ct. 1816 (2025) .................................... 23, 24

United States v. Virginia,

518 U.S. 515 (1996) .................................... 8, 17, 21

Veney v. Wyche,

293 F.3d 726 (4th Cir. 2002) ................................ 15

Washington v. Harper,

494 U.S. 210 (1990) ........................................ 17, 20

West Virginia v. B.P.J.,

No. 24-43 .............................................................. 25

Williamson v. Maciol,

839 F. App’x 633 (2d Cir. 2021) ........................... 15

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

v. District of Columbia,

93 F.3d 910 (D.C. Cir. 1996) .......................... 15, 16

Other Authorities

28 C.F.R. § 115.42 ..................................................... 21

vi

Grace DiLaura, “Not Susceptible to the

Logic of Turner”: Johnson v.

California and the Future of Gender

Equal Protection Claims from

Prisons, 60 UCLA L. Rev. 506 (2012) .................. 15

S. Ct. Rule 10 ............................................................. 16

INTRODUCTION

Nothing about the decision below imperils prisons’

or jails’ abilities to segregate facilities based on sex, as

the Petition dramatically claims. Pet. 3. The Tenth

Circuit simply applied intermediate scrutiny to the

claims at hand because Petitioners conceded that

intermediate scrutiny applied, Pet. App. 37a, and

never raised the novel Turner-wins theory inserted

into this case for the first time by the dissent. Future

defendants are free to raise and litigate this issue—

including in the Tenth Circuit. At that point, it’s

possible a circuit split will develop; there isn’t one

now. As for this case, all the Tenth Circuit held is that,

under the generous standards of Rule 12(b)(6), Ms.

Griffith plausibly alleged an equal protection claim

and claims relating to an abusive cross-gender search.

Petitioners invoke their penological interests and the

need for deference before this Court, but this is not the

venue for doing so; they will have a chance to raise

these arguments on remand as this case proceeds to

discovery. The Court should deny certiorari.

STATEMENT OF THE CASE

Respondent Darlene Griffith is transgender. Pet.

App. 7a. She has been living openly as a woman for

over twenty years, and has been diagnosed with

gender dysphoria. Id. 1 As part of her medicallysupervised treatment, Ms. Griffith changed her name

and altered her physical appearance to conform with

Gender dysphoria is a medical condition recognized by the

American Psychiatric Association; it is characterized by

“significant distress that may accompany the incongruence

between a transgender person’s identity and assigned sex.” Pet.

App. 7a.

1

(1)

2

her female gender identity. Id. She dresses in

feminine attire, and takes feminizing hormones,

which caused her to develop female secondary sex

characteristics, including breasts. Pet. App. 7a-8a.

Ms. Griffith entered the El Paso County Jail

(“County” and “Jail,” respectively) as a pretrial

detainee in July of 2020. Pet. App. 8a; Pet. App. 138a

¶ 47. During her intake screening, she stated that she

was a transgender woman and, as her medical records

confirmed, has been diagnosed and has received

treatment for gender dysphoria. Pet. App. 8a; Pet.

App. 138a ¶¶ 48-49. She explained that she feared

being sexually abused and assaulted in a male facility

by both guards and other detainees, along with the

humiliation of being constantly searched, both

visually and through pat-downs, by male guards in a

male unit. Pet. App. 8a; Pet. App. 138a ¶ 48. For these

reasons, she requested placement in a female housing

unit. Pet. App. 8a; Pet. App. 138a ¶ 48.

The County maintains an official policy of

assigning Jail detainees, solely and without exception,

“on the basis of the individual’s genitalia.” Pet. App.

8a; Pet. App. 136a ¶ 42. 2 The County thus refuses to

house any transgender woman who has not undergone

surgical interventions to her genitals in a female

facility and instead always places these transgender

women in male units within the Jail. Pet. App. 8a.

2 The Petition states that “the County generally makes custodial

assignments based on an inmate’s or detainee’s genitals,” Pet. 6

(emphasis added), but this is inconsistent with the Complaint’s

repeated allegations that the policy assigns people “solely” based

on genitalia. See Pet. App. 136a ¶ 42; see also Pet. App. 138a ¶ 51

(alleging the County “refuses to house transgender women in

female housing facilities”).

3

Consistent with this policy, Ms. Griffith was assigned

to a male housing unit. Id.

Upon entering the Jail, Ms. Griffith underwent a

visual body-cavity inspection. Id. The County’s policy

dictates that all transgender women—including

those, like Ms. Griffith, who have been diagnosed with

gender dysphoria—be strip searched by a male staff

member. Id. Deputy Dawne Elliss, a woman, and

Petitioner Deputy Andrew Mustapick, a man,

searched Ms. Griffith. Pet. App. 8a-9a. Before the

search started, Ms. Griffith asked repeatedly for

Petitioner Mustapick to leave the room, but she was

told that a male deputy would have to search her per

the Jail’s policy because “she was ‘still a male’ in” the

system. Pet. App. 9a.

With Petitioner Mustapick present, Deputy Elliss

told Ms. Griffith to remove her shirt, and then

examined Ms. Griffith’s bare breasts. Id. Deputy

Elliss then left Ms. Griffith alone with Petitioner

Mustapick. He ordered Ms. Griffith to take off her

pants and underwear, and place her hands on the

wall. Id. Petitioner Mustapick then told Ms. Griffith

to “step back, bend over, and ‘spread [her] sexy

cheeks.’” Id. He told her that he was “‘going to go balls

deep in that ass,’” while grabbing his own penis. Id.

Petitioner Mustapick was “extremely aggressive

while searching Ms. Griffith’s genitals” and warned

her “that she had better not tell anyone about what he

did and said to her” during the strip search, or else “he

would make sure that she was brutalized by the

guards” at the Jail. Id.

A few days later, Ms. Griffith again asked to be

transferred into the female housing unit, and the

request was denied. Id. While in the male unit, Ms.

4

Griffith was repeatedly sexually assaulted by a male

detainee in her housing unit. Pet. App. 10a. She was

also continuously subjected to cross-gender pat-down

searches without a female deputy present, during

which male deputies regularly touched her breasts

and groin. Id. The Jail would also not allow Ms.

Griffith to have a sports bra, women’s underwear, and

other products that were provided to cisgender women

at the Jail—citing Jail policy. Pet. App. 10a-11a.

During her time at the Jail, Ms. Griffith

experienced anxiety and exacerbated symptoms of

gender dysphoria. Pet. App. 10. She filed numerous

grievances in which she described these issues, and

repeatedly requested exceptions from the Jail policies.

Ms. Griffith specifically informed the Jail that she

“had previously been housed in female units in other

correctional facilities,” but was informed that she

would continue to be housed in a male unit at the Jail

pursuant to County policy. Pet. App. 11a n.6. The

County’s policies caused Ms. Griffith to suffer

significant emotional distress, which led her to

attempt self-castration. Pet. App. 11a-12a.

Ms. Griffith filed suit under 42 U.S.C. § 1983,

alleging a number of claims under federal and state

law. Pet. App. 12a. As relevant here, Ms. Griffith

brought a Fourteenth Amendment equal protection

claim challenging the County’s policies that required

housing her in an all-male unit and denying her

clothing and products available to cisgender female

detainees; and Fourth and Fourteenth Amendment

claims relating to the abusive cross-gender strip

search. Pet. App. 13a.

The defendants—Petitioners here—moved to

dismiss Ms. Griffith’s complaint in its entirety. Pet.

5

App. 13a. 3 A magistrate judge reviewed the complaint

and recommended dismissal in full based on a

misreading of Tenth Circuit precedent. Id.; see Pet.

App. 196a-242a. The district court adopted the

magistrate judge’s recommendation, over Ms.

Griffith’s objections, and dismissed the entirety of her

complaint, based on the same misreading of Tenth

Circuit precedent. Pet. App. 243a-265a.

The Tenth Circuit (Judges Rossman and Ebel)

affirmed in part, vacated in part, and reversed and

remanded in part. Pet. App. 5a.-6a. Relevant here, the

court of appeals reversed and remanded for further

proceedings on Ms. Griffith’s Fourteenth Amendment

equal protection claim against the Sheriff in his

official capacity based on the Jail’s housing and

commissary policies; Fourth and Fourteenth

Amendment cross-gender search claims against the

Sheriff in his official capacity; and a Fourth

Amendment abusive search claim against Petitioner

Mustapick. Pet. App. 5a.

The court of appeals concluded that the County’s

housing and commissary policies are sex

classifications, since they use a detainee’s biological

sex to determine where they will be housed and

whether they will be allowed to purchase certain

items from the commissary. Pet. App. 16a, 24a. The

Tenth Circuit then held, based on preexisting circuit

precedent, that heightened scrutiny applied to these

claims, Pet. App. 18a-19a, 27a-28a, and concluded

that Ms. Griffith stated a plausible equal protection

claim, Pet. App. 33a. The court pointed out it was “not

3 The El Paso County Sheriff, Petitioner here, was sued in his

official capacity on Ms. Griffith’s claims relating to the County’s

policies. See Pet. ii.

6

speculat[ing] about the ultimate outcome of Ms.

Griffith’s Equal Protection claim,” concluding only

that “[a]t this early stage of the litigation,” Ms.

Griffith’s claims passed the “low bar” for surviving a

Rule 12(b)(6) motion to dismiss. Id. The court of

appeals further noted that “[t]he Policies might

ultimately survive heightened scrutiny,” once there is

“a developed record on the justification for the

policies,” “but that issue is not before [the court].” Pet.

17a, 32a-33a. “That is,” the court explained, “we do not

opine on whether they are constitutional whatsoever.”

Pet. App. 27a. n.13. 4

The court of appeals also noted that Ms. Griffith

separately alleged that the County violated the Equal

Protection Clause because transgender status is a

suspect class, but explained that it “need not consider

the quasi-suspect class issue to resolve this appeal.”

Pet. App. 20a; see also Pet. App. 29a.

The majority opinion also responded to the

arguments asserted by the dissent. Relevant here, it

noted that the dissent’s argument—that the deference

owed to prison administrators under Turner v. Safley,

482 U.S. 78 (1987), applies notwithstanding the

heightened scrutiny required by this Court’s equal

protection jurisprudence—fails in this case because of

the party presentation principle: The County never

raised it. Pet. App. 35a-36a. More than that, the

County

affirmatively

acknowledged

that

“intermediate scrutiny . . . appl[ies] to their” equal

protection claims. Pet. App. 37a. So “the dissent

4 See also Pet. App. 33a (“We do not speculate about the ultimate

outcome of Ms. Griffith’s Equal Protection claim.”); Pet. App. 46a

(“[W]e do not opine on the ultimate merits of [her equal

protection] claim.”).

7

raise[d] and resolve[d] for Appellees an argument they

never made.” Id.

And the majority rejected the dissent’s contention

that under its decision “housing inmates based on

their

biological

sex

is

presumptively

unconstitutional,” Pet. App. 80a; in part because the

majority had “not considered at this procedural stage

whether the constitutional policies before [it]

withstand heightened scrutiny.” Pet. App. 27a n.13.

Turning to Ms. Griffith’s claims relating to the

cross-gender nature of her strip search, the court of

appeals granted qualified immunity to Petitioner

Mustapick, Pet. App. 57a, but reversed the dismissal

of her Fourth and Fourteenth Amendment claim

against the Sheriff in his official capacity, Pet. App.

62a. The Tenth Circuit observed that “cross-gender

searches are ‘universally frowned upon . . . in the

absence of an emergency.’” Pet. App. 59a (quoting

Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d 1135,

1143 (9th Cir. 2011)). The court noted that Ms.

Griffith alleged that there was no “legitimate

penological purpose” for Petitioner Mustapick to

search her; she is transgender, requested to be

searched by a female deputy, and a female deputy was

available to conduct the search—“[i]ndeed, Deputy

Elliss had just helped with the search.” Pet. App. 59a.

As with Ms. Griffith’s equal protection claim, the

Tenth Circuit took pains to point out that it was

“tak[ing] no position on the merits” of her cross-gender

strip search claims, and said “no more than the

district court’s stated reasons for dismissal were

erroneous.” Pet. App. 62a.

Finally, the Tenth Circuit reversed the district

court’s grant of qualified immunity to Petitioner

8

Mustapick on Ms. Griffith’s Fourth Amendment claim

related to the abusive way in which he executed the

search. Pet. App. 65a. The court echoed the

magistrate judge’s characterization of Petitioner

Mustapick’s behavior as “sickening,” “reprehensible,”

and “abhorrent.” Pet. App. 64a. It observed that

“sexual harassment or abuse of an inmate by a

correctional officer can never serve a legitimate

penological purpose,” Pet. App. 65a (cleaned up), and

therefore concluded that “[a] reasonable officer in

Deputy Mustapick’s position did not need a body of

case law involving abusive searches of transgender

inmates to put him on notice that his search of Ms.

Griffith was unlawful.” Pet. App. 69a-70a.

Judge Ebel concurred. He noted the preliminary

posture of this case, which “comes to [the court] at the

motion to dismiss stage,” without “a developed factual

record.” Pet. App. 78a. He also complimented his

colleagues for their thoughtful opinions, which he was

“confident . . . will contribute to the further evolution

of the law in this case.” Pet. App. 79a.

Judge Tymkovich dissented. Pet. App. 80a-107a.

In his view, Turner’s rational basis review should

displace the heightened scrutiny that would otherwise

apply to sex-based equal protection claims under

United States v. Virginia, 518 U.S. 515 (1996) (VMI).

Pet. App. 86a. He acknowledged that this Court

applied strict scrutiny to the prison racialclassification claim in Johnson v. California, 543 U.S.

499, 510 (2005), but believed the reasoning should not

apply to sex-based claims. Pet. App. 87a-88a. The

dissent acknowledged the VMI/Johnson-or-Turner

issue was not raised by the Petitioners, but did not

consider that to be an impediment to the court itself

9

raising and addressing the question. Pet. App. 86a

n.37.

The full Tenth Circuit denied the petition for

rehearing en banc. Pet. App. 114a-115a. Judge

Tymkovich dissented. Pet. App. 119a. He chastised

the court for failing to “face the hard question” he

believes is presented by the VMI/Johnson-or-Turner

issue. Pet. App. 119a. 5 Judge Rossman concurred in

the denial, responding that the court simply

“adjudicated the arguments the parties actually

raised.” Pet. App. 116a. She noted that the fact “that

the entire Turner/VMI tension is one ‘the dissent

raised and resolved for [the Sheriff]’ makes this case

a particularly poor vehicle for further review.” Pet.

App. 117a.

Petitioners now seek certiorari.

REASONS FOR DENYING THE PETITION

Petitioners ask this Court to weigh in on a bespoke

legal issue that was not adjudicated by the Tenth

Circuit below because—consistent with party

presentation principles—Petitioners didn’t raise,

brief, or argue it. And no wonder that they didn’t

present the argument below: not a single court of

appeals has embraced the position they would have

the Court adopt. The Petition boils down to a plea for

“administrative flexibility and deference,” Pet. 17, but

prisons receive that regardless of the level of scrutiny

applied to equal protection claims; deference in the

unique context of prisons is baked into the analysis.

Indeed, if the scrutiny question were make-or-break

5 See also Pet. App. 119a (“Had we properly wrestled with the

question…”); id. at 121a (“The panel majority avoided the central

question.”).

10

in these cases, one would expect the Turner-overVMI/Johnson argument to have created a circuit split

by now, calling out for this Court’s review. It has not.

Petitioners’ quest for certiorari on the cross-gender

search claim fares no better. The court of appeals did

not hold that cross-gender searches are categorically

unconstitutional, and Petitioners do not even attempt

to manufacture a circuit split on the issue. The

decision below was factbound, correct, and

preliminary.

Intervention now is both premature and

unnecessary, even as to this particular case, making

it a poor vehicle. This Court’s decisions from this- and

last-term regarding equal protection claims relating

to transgender plaintiffs may impact how this case

proceeds, and it will do so without this Court granting

certiorari in this particular case. Additionally, since

this case arises in a motion to dismiss posture, there

is plenty of ballgame left, and Petitioners remain free

to assert their penological justifications on remand.

The Court should deny the petition.

I.

The Tenth Circuit did not decide the levelof-scrutiny question presented.

The first question presented was not decided in

this case at the district or appellate level. That is

because the Turner-beats-VMI/Johnson argument

wasn’t raised, briefed, or argued by Petitioners to the

panel. Pet. App. 36a-38a. Not only did Petitioners

“never ma[k]e th[at] argument”—either before the

panel or the district court, Pet. App. 36a, they

affirmatively conceded on appeal that “intermediate

scrutiny applies” to Ms. Griffith’s claims. Pet. App.

11

37a (cleaned up) (quoting Petitioners’ Rule 28(j)

response letter).

The Tenth Circuit was clear that party

presentation principles were “decisive in this case.”

Pet. App. 38a; see also Pet. App. 36a (“[T]hat failure

of party presentation is decisive in this case.”). Indeed,

when Judge Tymkovich dissented from the Tenth

Circuit’s denial of the en banc petition, he repeatedly

acknowledged that the panel did not decide the issue.

See Pet. App. 119a (“Rather than face the hard

question. . . .”); id. (“Had we properly wrestled with

the question . . . .”); id. at 121a (“The panel majority

avoided the central question.”). So, as recognized by

both the Tenth Circuit majority and dissent, the panel

did not actually address the merits of the

VMI/Johnson-v.-Turner question. 6 In other words,

because Petitioners did not present QP1 to the panel,

the court of appeals did not resolve it.

“In our adversarial system of adjudication,” courts

“follow the principle of party presentation.” United

States v. Sineneng-Smith, 590 U.S. 371, 375 (2020).

That is, courts “rely on the parties to frame the issues

for decision”; courts are “assig[ed] . . . the role of

neutral arbiter of matters the parties present.” Id.

(quoting Greenlaw v. United States, 554 U.S. 237, 243

(2008)). Under this system, courts are “passive

instruments” that “do not, or should not, sally forth

each day looking for wrongs to right.” Id. at 376; see

6 Counsel has reviewed every case available on Westlaw that

cites to the Tenth Circuit opinion in this case (published in

February) and found zero citations related to the level of scrutiny

applicable to an equal protection claim. The decision is cited most

frequently for the standard for surviving a 12(b)(6) motion to

dismiss.

12

also NASA v. Nelson, 562 U.S. 134, 147 n.10 (2011)

(“[A]ppellate courts do not sit as self-directed boards

of legal inquiry and research.”). As such, courts act

“essentially as arbiters of legal questions presented

and argued by the parties before them.” Id.; see also

Sineneng-Smith, 590 U.S. at 376 (courts “normally

decide only questions presented by the parties”).

In short, because “[n]o party” advanced the

Turner-trumps-VMI/Johnson argument—“and given

all parties apparently ha[d] a contrary reading”—the

panel appropriately “adjudicated the arguments the

parties actually raised” and “declined” to decide the

issue sua sponte. Pet. App. 42a-43a, 116a. Petitioners

do not dispute this litigation history, or assert that

this question arose in this case before “the dissent

raised and resolved” the issue “sua sponte.” Pet. App.

116a. And they do not explain why party presentation

issues should be excused here, or why this Court

should deviate from its practice of “not ordinarily

decid[ing] questions that were not passed on below.”

City & Cty. of San Francisco v. Sheehan, 575 U.S. 600,

610 (2015).

II.

There is no circuit split.

1. In addition to not being passed on by the court

of appeals, certiorari is not warranted because there

is no circuit split on the level of scrutiny that applies

to equal protection challenges to sex-based

classifications in prisons. Indeed, the panel dissent,

which “raised and resolved the Turner/VMI tension

sua sponte,” Pet. App. 116a, did not allege one, see Pet.

13

App. 86a-98a. Petitioners have not unearthed any

caselaw that the dissent overlooked. 7

To start, as explained above, the Tenth Circuit is

not “[f]irmly entrenched on the heightened-scrutiny

side” of the issue, as Petitioners claim, Pet. 22-23,

since the panel resolved the case based on party

presentation principles, see supra Section I.

More broadly, Petitioners argue that the courts

that apply intermediate scrutiny are “disregarding

long-standing deference to legitimate penological

interests.” Pet. 18. But the two circuits that have

decided some heightened level of scrutiny applies to

such claims have done no such thing. In Harrison v.

Kernan, 971 F.3d 1069 (9th Cir. 2020), the Ninth

Circuit concluded that intermediate scrutiny applied

to gender-based prison cases. Id. at 1078. But it also

made clear that “the special difficulties that arise in

the prison context” are very much part of the merits

inquiry. Id. at 1079. That is, under heightened

scrutiny, “the deference owed to judgments made by

prison officials is factored into the importance of the

government’s asserted interest.” Id. “Indeed,” the

court of appeals continued, “there is no reason to think

that intermediate scrutiny will prove fatal to genderbased prison” policies, and it cited “numerous

examples of prison officials successfully crafting

constitutionally-sound gender-based policies.” Id. As

such, “it [wa]s not a foregone conclusion” that the

challenged regulations were unconstitutional, and the

7 Petitioners do not attempt to allege a circuit split on the strip-

search claim, see Pet. 27, and before the Tenth Circuit admitted

that the issue “has yet to be adequately addressed by . . . any

Circuit Court.” Defendants’-Appellees’ Petition for Rehearing En

Banc, ECF 136, at 7 (Mar. 20, 2025).

14

court noted that the defendant “may ultimately be

able to show that” the policies were “substantially

related to the achievement of important penological

objectives.” Id. at 1080. The Ninth Circuit remanded

the case to the district court to apply heightened

scrutiny in the first instance, id., and, in fact, the

district court granted qualified immunity to the

individual defendants, Harrison v. Kernan, No. 16-cv07103, 2021 WL 4295303 (N.D. Cal. Sept. 21, 2021),

and ultimately dismissed the remaining claims as

moot after defendants changed the challenged

regulations. Harrison v. Kernan, No. 16-cv-7103, Doc.

105 (N.D. Cal. Feb. 23, 2024).

The Eighth Circuit also has recognized that while

intermediate scrutiny applies to such claims, the

prison context in which they arise is a meaningful

component of the equal protection analysis. See

Roubideaux v. N.D. Dep’t of Corr. & Rehab., 570 F.3d

966, 974 (8th Cir. 2009) (noting it was “mindful that

this claim arises in a prison housing context where . . .

it is appropriate to segregate male and female inmates

on the basis of gender” and quoting Turner, noting

that generally “[c]ourts are ill equipped to deal with”

many issues of prison administration). 8

2. Petitioners incorrectly claim the Second, Fourth,

and D.C. Circuits fall “[o]n the Turner side of the

8 This case, too, did not result in liability for the defendants. The

court of appeals concluded that the plaintiffs failed to allege

gender discrimination (and other claims were moot), and

affirmed the grant of summary judgment to the defendants. See

570 F.3d at 974-75. Nor does it seem to have blown the doors

open for such claims. See, e.g., Beard v. Falkenrath, 97 F.4th

1109, 1116 (8th Cir. 2024) (granting qualified immunity to

defendants for equal protection claim brought by a transgender

prisoner).

15

split.” Pet. 24. Most fundamentally, the published

circuit precedent Petitioners cite were all decided well

before Johnson, so could not possibly have grappled

with whether Johnson’s “carve out”—as the dissent in

this case put it—from Turner when it comes to race

should also apply to sex-based claims. Pet. App. 93a;

see Veney v. Wyche, 293 F.3d 726 (4th Cir. 2002);

Benjamin v. Coughlin, 905 F.2d 571 (2d Cir. 1990);

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

Columbia, 93 F.3d 910 (D.C. Cir. 1996). 9

The two cases Petitioners cite from the Second

Circuit are off-base for additional reasons. Not only

was Benjamin v. Coughlin (from 1990) decided before

Johnson, it was decided before VMI, so is doubly outof-date. And the Petition’s citation to Williamson v.

Maciol, 839 F. App’x 633 (2d Cir. 2021), is puzzling,

given that there—as here—the court applied

intermediate scrutiny because the parties conceded

that was the appropriate standard of review for such

claims. Id. at 636 n.2.

As for the Fourth Circuit, it remains to be seen

whether that court would adhere to its pre-Johnson

decision on this question, as noted by district courts

within the circuit. See e.g., Munday v. Beaufort Cnty.,

9 One 2012 academic comment notes that “individual circuit and

district courts have divided on the appropriate standard of

review” in such cases, but the cases to which it cites for the

“strictly Turner-reliant approach” are all pre-Johnson. Grace

DiLaura, “Not Susceptible to the Logic of Turner”: Johnson v.

California and the Future of Gender Equal Protection Claims

from Prisons, 60 UCLA L. Rev. 506, 516-18 (2012); see also Pet.

App. 42a (citing same). Indeed, the piece notes that “the

applicable standard of review” is “the most common source of

argument about Johnson’s future.” DiLaura, 60 UCLA L. Rev. at

518.

16

No. 9:20-cv-02144, 2023 WL 9188398, *6 (D.S.C. Mar.

31, 2023) (“To date, the Fourth Circuit has not

explained which prison contexts receive intermediate

or strict scrutiny.”); see also Harrison, 971 F.3d at

1079 n.12 (describing the Fourth Circuit in Veney as

“apply[ing] Turner’s reasonableness standard . . .

before the Supreme Court decided Johnson”).

Finally, in Women Prisoners of D.C. Dep’t of Corr.

v. District of Columbia, the D.C. Circuit did not apply

any particular level of scrutiny, or address whether

the programming in question survived, because the

resolution of the case depended on “[t]he threshold

inquiry” requirement of identifying similarly-situated

comparators. 93 F.3d at 924. Indeed, the court

favorably cited its earlier precedent, Pitts v.

Thornburgh, see id. at 926, which held that

“heightened scrutiny,” not rational-basis review,

applied when reviewing equal protection claims

brought by a class of female prisoners, 866 F.2d 1450,

1453 (D.C. Cir. 1989). 10

In short, there are at maximum two circuits—the

Eighth and Ninth—to have considered the

appropriate standard for equal protection claims after

Johnson, and so far there is no circuit split on the

issue. Since this is “a court of review, not of first view,”

Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005),

further (or any) percolation on this issue is warranted.

10 The “[]other vein of the split” that Petitioners allege is based

on two unpublished district court orders. Pet. 25. These decisions

both seem to have come out in defendants’ favor, and not been

addressed on appeal, so this is—to put it mildly—not an issue

desperately calling out for this Court’s review. See generally S.

Ct. Rule 10.

17

III.

The Tenth Circuit opinion was correct.

1. The closest to an argument on the merits

Petitioners present is a generalized plea for

“administrative flexibility and deference.” Pet. 17. But

applying Turner isn’t necessary; this deference is

baked into the application of intermediate scrutiny in

the prison context. That is, “[t]he necessities of prison

security and discipline” are themselves “compelling

government interest[s].” Johnson, 543 U.S. at 512.

Indeed, this Court has been clear that the concerns for

“institutional safety and security” that Petitioners

raise (at 17) “can be considered in applying”

heightened scrutiny, “which is designed to take”

“[s]uch circumstances . . . into account.” Johnson, 543

U.S. at 515. “Heightened scrutiny does not eliminate

appreciation of both the difficulties confronting prison

administrators and the considerable limits of judicial

competency.” Pitts, 866 F.2d at 1455. So application of

intermediate scrutiny “should not be read to mean

that deference to prison officials plays no role in

[assessing]

prisoners’

constitutional

claims.”

Harrison, 971 F.3d at 1079 (cleaned up).

As to the merits of the actual question presented,

in their single paragraph on the topic, see Pet. 18,

Petitioners do not attempt to explain why Turner’s

application to “all circumstances in which the needs of

prison administration implicate constitutional

rights,” Washington v. Harper, 494 U.S. 210, 224

(1990), would necessarily displace VMI’s (later)

directive that “all” sex-based classifications “warrant

heightened scrutiny,” 518 U.S. at 555 (cleaned up).

Nor do they explain why heightened scrutiny would

not apply to this species of equal protection claim, just

as it did for the race-based prison-classification claim

in Johnson.

18

In short, Turner deference is neither appropriate

nor needed here, because “there is no reason to think

that intermediate scrutiny will prove fatal to genderbased prison regulations”—including the one in this

case. Harrison, 971 F.3d at 1079. The panel, for its

part, made clear it was “not opin[ing] on the ultimate

merits of th[is] claim,” and “conclude[ed] only that the

district court’s reason for dismissal was erroneous.”

Pet. App. 46a. 11

2. The Tenth Circuit’s ruling regarding Ms.

Griffith’s cross-gender strip-search claim was limited

to the facts and circumstances presented in this case.

As the Tenth Circuit explained, “[a]t this procedural

stage,” and “[a]ccording to the allegations in Ms.

Griffith’s complaint,” there was no legitimate

penological purpose “in this case” for this search. Pet.

App. 59a. 12 This is because: 1) “Deputy Mustapick

knew Ms. Griffith is a transgender woman and that

she lived with gender dysphoria”; 2) “[h]e also knew

Ms. Griffith asked to be searched by a female deputy;

3) “a female deputy was available to conduct the

search,” having “just helped with the search”; and

4) “[n]othing in the complaint suggests there was an

emergency or other justification requiring Deputy

Mustapick to participate.” Pet. App. 59a. As with Ms.

Griffith’s equal protection claim, the Tenth Circuit

took “no position on the merits” of this claim, and said

11 Petitioners’ prognostication about factfinders running amok

with these cases is notably devoid of any support, Pet. 26, despite

the “dizzying array” of litigation they cite, id. 19.

12 Contrary to Petitioners’ assertion, the court of appeals did not

definitively hold that “absent emergency circumstances, there

can be no legitimate penological purpose” for a cross-gender

search. Pet. 28 (cleaned up).

19

“no more than the district court’s stated reasons for

dismissal were erroneous.” Pet. App. 62a.

To the extent Petitioners have penological

interests in the search as-executed, see Pet. 29-30,

they will have a chance to raise them before the

district court. See Pet. App. 78a (Ebel, J., concurring)

(“[T]his case comes to us at the motion to dismiss

stage, where we do not have a developed factual

record.”); cf. Pet. App. 32a-33a (“The absence of a

developed record on the justification for the policies

make sense at the motion-to-dismiss stage.”). At that

point, consistent with this Court’s precedent, the

district court will “balance . . . the need for the

particular search against the invasion of personal

rights the search entails.” Bell v. Wolfish, 441 U.S.

520, 559 (1979), which means taking into account “the

undoubted security imperatives involved in jail

supervision,” Florence v. Board of Chosen Freeholders

of County of Burlington, 566 U.S. 318, 330 (2012). The

motion-to-dismiss decision below does not conflict

with this Court’s precedent or require this Court’s

intervention.

IV.

The issues presented do not warrant this

Court’s review, and this case is a poor

vehicle.

1. The issues (belatedly) raised in this case do not

require an extension of this Court’s limited resources.

Big picture—the scrutiny question is not an outcomedeterminative issue. To illustrate, not a single one of

the proclaimed “dizzying array” of litigation

Petitioners point to has resulted in liability for

20

defendants. See Pet. 19-20. 13 Indeed, some courts have

avoided deciding the issue by concluding that under

either level of scrutiny the plaintiff’s claims fail. See,

e.g., Sabbats v. Clark, No. 7:21-cv-00198, 2022 WL

4134771, at *9 n.9 (W.D. Va. Sept. 12, 2022) (“If I were

to apply the intermediate scrutiny standard to the

equal protection claim . . . I would [still] find for the

[defendant prison officials].”); cf. Doe v. McHenry, 763

F. Supp. 3d 81, 88 (D.D.C. 2025) (concluding “the

Court need not reach any firm conclusion about

Turner’s effects on plaintiffs’ equal protection claims,”

and granting preliminary injunction on Eighth

Amendment claims). No wonder, then, that no circuit

split has developed on this question in the twenty

years since Johnson. In other words, as noted above,

Petitioners’ need for “administrative flexibility and

deference” due to “operational difficulties,” Pet. 17,

are well-addressed under any equal protection

analysis, see supra at 17.

What is more, any equal protection challenge is

necessarily fact-specific under either level of scrutiny.

Compare Harper, 494 U.S. at 224-25 (listing relevant

Turner considerations as “the legitimate government

interest put forward,” “the impact” the requested

“accommodation . . . will have on guards and other

inmates,” and “the absence of ready alternatives”),

13 See, e.g., Carter-el v. Boyer, No. 1:19-cv-234, 2020 WL 939289,

at * 3-4 (E.D. Va. Feb. 25, 2020) (granting defendant’s motion for

summary judgment); Jones v. Union County Sheriff’s Office, No.

3:18-CV-00509, 2019 WL 5692753, at *4-5 (W.D.N.C. Nov. 4,

2019) (granting defendants’ motion to dismiss), aff’d sub nom.

Jones v. Cathey, 854 F. App’x 543 (4th Cir. 2021); Guy v.

Espinoza, No. 1:19-cv-00498, 2020 WL 309525, at *5-8 (E.D. Cal.

Jan 21, 2020) (dismissing action with prejudice on pre-complaint

screening).

21

with Johnson, 543 U.S. at 507 (heightened scrutiny

requires consideration of the “particularized

circumstances” in a given facility). The individual

nature of these claims, regardless of how they are

analyzed, suggests that an answer to the scrutiny

question will not meaningfully decrease litigation

costs—the main real-world gripe that Petitioners

assert. Pet. 26. 14 And if a transgender prisonerplaintiff were to actually prevail on such a claim—

despite the fact that apparently none have before,

according to Petitioners’ research, see supra at 1920—any relief would be targeted to that plaintiff only.

See VMI, 518 U.S. at 547 (“A remedial decree . . . must

closely fit the constitutional violation.”); cf. Trump v.

CASA, Inc., 606 U.S. 831, 843-44 (2025) (noting

historical tradition of “rebuff[ing] requests for relief

that extended beyond the parties”).

Nor is this case worth taking on for the sake of

defendants in the Tenth Circuit. Since the court of

appeals’ equal protection ruling in this case was based

on the arguments presented by the parties—and did

not decide the issue for all time, see supra Section I—

14 Petitioners cite to a federal regulation that similarly requires

“individualized determinations” relating to prisoner safety, and

require the BOP to “consider on a case-by-case basis” “whether

to assign a transgender” individual “to a facility for male or

female inmates,” taking into account “management or security

problems.” 28 C.F.R. § 115.42(b), (c). Petitioners cite this

regulation to support their “inherent need for penological

deference,” Pet. 27 n.4, but the regulation says nothing of the

sort. To the contrary, it notes that “[a] transgender . . . inmate’s

own views with respect to his or her own safety shall be given

serious consideration,” 28 C.F.R. § 115.42(e), something

precluded by the Jail’s policy of always housing people

exclusively based on their genitalia.

22

defendants in that circuit are free to raise and litigate

the issue in future cases.

2. Intervention is not even necessary for the

outcome of this particular case. The Tenth Circuit

went out of its way to repeatedly state that it was only

deciding that the complaint stated a few plausible

claims under the “low bar” set out for surviving a

12(b)(6) motion, and refused to “speculate about the

ultimate outcome” of Ms. Griffith’s claims. Pet. App.

33a; see also Pet. App. 78a (Ebel, J., concurring)

(noting “high burden that must be met by a defendant

who moves to dismiss at the pleading stage”). Making

this point explicit, the court of appeals noted that it

“ha[d] not considered at this procedural stage whether

the challenged policies before [it] withstand

heightened scrutiny.” Pet. App. 27a n.13. Similarly,

the Tenth Circuit took “no position on the merits of

Ms. Griffith’s Fourth and Fourteenth Amendment

claims” relating to the cross-gender search. Pet. App.

62a.

In other words, since this case arises in a motion

to dismiss posture, it remains to be seen whether the

scrutiny issue will make a difference in the ultimate

outcome of this case. Indeed, Petitioners will be free

to present to the district court their “obvious”

arguments about operational difficulties; safety,

privacy, and security issues; and infrastructure,

staffing, and financial constraints to support any

claim that a compelling government interest justifies

their actions. Pet. 13, 17, 26; accord Johnson, 543 U.S.

at 514 (“Strict scrutiny does not preclude the ability of

prison officials to address the compelling interest in

prison safety.”). It is at the summary judgment stage

that Petitioners can assert these interests and the

courts will have the benefit of “a developed factual

23

record.” Pet. App. 78a (Ebel, J., concurring). As the

Tenth Circuit put it: “The Policies might ultimately

survive heightened scrutiny, but that issue [wa]s not

before” the court. Pet. App. 17a.

And even aside from the two issues on which

Petitioners seek certiorari, it’s not as if this Court

granting the case would end this litigation. In

addition to the two issues on which Petitioners now

seek review, the Tenth Circuit also reversed and

remanded the district court’s dismissal of Ms.

Grifith’s claim against Petitioner Mustapick relating

not to the existence of the cross-gender search per se,

but the “sickening,” “reprehensible,” and “abhorrent”

manner in which it was conducted. Pet. App. 64a; see

also Pet. App. 56a-57a (separating out claims). He

does not seek review of that claim, which will require

resolution in the district court regardless of the

disposition of the petition. See Pet. 8 n.1.

3. Percolation on this issue is warranted—aside

from the glaring lack of a circuit split on the issue—to

give this Court’s recent and upcoming decisions

touching on transgender and equal protection issues a

chance to work their way into the doctrine—both in

this case and beyond. Petitioners cite to this Court’s

decision to grant, vacate, and remand the Tenth

Circuit’s opinion in Fowler v. Stitt, 104 F.4th 770 (10th

Cir. 2024), in light of United States v. Skrmetti, 145 S.

Ct. 1816, 1837 (2025), and argue for the same result

here. Pet. 5. But the chronology of the cases show the

opposite result should yield; this issue will work itself

out in this case and more broadly after this Court

declines certiorari.

A brief historical tour explains why: The court of

appeals in this case determined that its 2024 decision

24

in Fowler “confirms the . . . [Jail’s] Policies are sex

classifications subject to heightened scrutiny.” Pet.

App. 25a. Fowler, in turn, relied on “Bostock’s

reasoning” to conclude that Oklahoma’s policy of

barring transgender people from obtaining a birth

certificate reflecting their gender identity constituted

sex discrimination that was subject to heightened

scrutiny. 104 F.4th at 789, 793-94. The Fowler

decision issued after oral arguments in the present

case and, in a post-argument letter, Petitioners

conceded that, under Fowler, “intermediate scrutiny

. . . appl[ies]” to Ms. Griffith’s claims. Pet. App. 37a.

In June of this year, the Court decided United

States v. Skrmetti. 145 S. Ct. 1816. There, the Court

held that “a Tennessee law banning certain medical

care for transgender minors” was not subject to

heightened scrutiny under the Equal Protection

Clause. Id. at 1824, 1829. The Court concluded that

the law relied on classifications on the basis of age and

medical use, not sex. See id. at 1829. Shortly after

issuing the Skrmetti decision, the Court granted,

vacated, and remanded the Tenth Circuit’s decision in

Fowler “for further consideration in light of” Skrmetti.

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

Now, on remand, the Tenth Circuit is in the

process of reconsidering Fowler in light of Skrmetti.

Specifically, the court of appeals asked for

supplemental briefing on whether the Oklahoma law

in question in Fowler “involved classifications based

on transgender status,” the “proper level of scrutiny

under the Equal Protection Clause” and “[w]hether

the allegations in the complaint meet that standard.”

Order Requesting Supplemental Briefing, Fowler v.

Stitt, No. 23-5080, ECF 119 (Aug. 6, 2025). The briefs,

including one from the United States as amicus

25

curiae, are on file and awaiting a decision from the

Tenth Circuit. Whatever the court of appeals says in

a new opinion in Fowler may have relevance to the

issues in this case, and the district court will be wellpositioned to address them. 15 There is absolutely no

need for this Court to grant, vacate, and remand, as

Petitioners request (at 5, 15); the lower courts will

incorporate newer decisions from this Court and the

court of appeals as they come down without this

Court’s intervention.

So too with whatever the result in West Virginia v.

B.P.J., No. 24-43, to be argued later this term. One of

the questions presented in that case is “[w]hether the

Equal Protection Clause prevents a State from

designating boys’ and girls’ sports teams based on

biological sex determined at birth.” Br. for Petitioners

at i, No. 24-43. Whatever the Court ultimately decides

in B.P.J. may be relevant to the question of the proper

level of scrutiny for Ms. Griffith’s claims and—again—

the district court and Tenth Circuit can and will

address those issues on remand as this case

progresses below.

It would be particularly counterproductive to the

goals of letting the issue percolate to wipe out the

contrasting views of the law expressed by the panel

and dissent—in only the third appellate decision

touching on this issue in the two decades since

Johnson. As Judge Ebel noted in his concurrence, his

colleagues’ “careful and thorough analysis of these

15 This case is currently stayed pending the disposition of the

petition for certiorari. Minute Entry Reflecting Stay Pending

Determination of Petition for Certiorari, Griffith v. El Paso

Country, Colo., et al., No. 1:21-cv-387, ECF 185 (D Colo. Aug. 11,

2025).

26

issues . . . will contribute to the further evolution of

the law.” Pet. App. 79a. Vacating these opinions would

do nothing helpful for the Petitioners in this case, as

explained above, but would have detrimental effects

when it comes to the nascent caselaw on the question.

Should this Court want to grant this issue if and when

a circuit split actually develops, it will then have

multiple “[o]pinions from other Courts of Appeals

[that] should assist this Court’s ultimate

decisionmaking.” Snope v. Brown, 605 U.S. __, 145 S.

Ct. 1534, 1534 (2025) (statement of Kavanaugh, J.,

respecting the denial of certiorari).

4. In addition to the several reasons above why the

Court should deny review, this case is a particularly

poor vehicle for answering the questions presented.

Recall, the court of appeals applied intermediate

scrutiny because Petitioners conceded it as the proper

standard of review and never raised the Turner issue.

See supra Section I. As a result, party presentation

principles were “decisive in this case.” Pet. App. 38a.

But more than that—and aside from the fact that

this case will proceed against Petitioner Mustapick for

his abusive search regardless, see supra at 23—the

unraised Turner issue would (if properly presented)

not be outcome-dispositive in this case, as it is

relevant only to one alternative theory under which

Ms. Griffith’s claim is subject to intermediate

scrutiny. That is, if this Court grants certiorari it will

likely need to reach this alternative argument, not

passed on by the court of appeals: that transgender

status is itself a protected class. See Pet. App. 29a.

That lurking issue makes this case unwieldy.

On the cross-gender search question presented,

the facts as alleged make this a strange vehicle for

27

resolving the issue, and make Petitioner Mustapick

an unlikely recipient of this Court’s certiorari grace.

That is, the facts alleged make plain why cross-gender

searches are “universally frowned upon . . . in the

absence of emergency.” Pet. App. 59a (quoting Byrd,

629 F.3d at 1143). As the opinion recounted, “Deputy

Mustapick searched Ms. Griffith in a ‘sickening’ and

‘reprehensible’ way and made ‘abhorrent statements

that accompanied the search.’” Pet. App. 64a.

Petitioner Mustapick, who behaved in a way that

“appears calculated to inflict psychological pain on a

vulnerable individual,” now asks for this Court to

sanction his right to search Ms. Griffith. Pet. App.

64a-65a. The facts make this an unappealing case for

review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

ANDY MCNULTY

MARI NEWMAN

NEWMAN | MCNULTY

1490 N. Lafayette St.

Suite 304

Denver, CO 80218

(720) 850-5770

DEVI M. RAO

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-3434

devi.rao@macarthurjustice.org

Attorneys for Respondent

NOVEMBER 2025