Intermediate Scrutiny over Turner Deference:
Griffith v. El Paso County (10th Cir. 2025)

Introduction

Griffith v. El Paso County, Colorado, presents a pivotal clash between prison-administration deference and anti-discrimination norms under the Equal Protection Clause. Darlene Griffith, a transgender woman housed in a men’s unit at the El Paso County Jail, alleged that the jail’s sex-based housing policy violated her constitutional rights. A three-judge panel of the Tenth Circuit held that the policy triggers intermediate scrutiny—the standard ordinarily applied to sex classifications—rather than the deferential Turner rational-basis test reserved for most prison regulations. After the defendants sought rehearing en banc, the full court denied the petition on June 10, 2025. The denial leaves intact the panel opinion—now binding precedent—establishing that, in the Tenth Circuit, prison policies classifying inmates by sex (including transgender status) are subject to heightened scrutiny.

The case pits two well-known Supreme Court lines against one another:

• Turner v. Safley (1987) – generally, prison regulations get rational-basis review.
• United States v. Virginia (VMI) (1996) – all sex-based classifications get intermediate scrutiny.

Judge Rossman’s concurrence (joined by Judge Federico) defends the panel’s approach, while Judge Tymkovich’s dissent (joined by Judges Eid and Carson) insists Turner still governs. The resulting opinion forms the first circuit-level holding to squarely apply VMI’s heightened scrutiny to transgender housing in prisons.

Summary of the Judgment

1. The court denied the defendants’ petition for rehearing en banc. A majority of active judges voted against rehearing; three judges would have granted it. 2. The panel’s earlier decision therefore stands. Key holdings of that panel (Griffith, 129 F.4th 790 (10th Cir. 2025)) include:

• Classifying Ms. Griffith by biological sex constitutes a sex-based classification.
• Under VMI and circuit precedent (Fowler v. Stitt, 104 F.4th 770 (2024)), such classifications warrant intermediate scrutiny—even inside prisons.
• Ms. Griffith plausibly pled that the jail’s policy fails intermediate scrutiny at the Rule 12 stage; her Equal Protection claim proceeds.

The en banc denial does not decide the merits definitively but cements the standard of review for further proceedings and for future cases in the Tenth Circuit.

Analysis

Precedents Cited and Their Influence

• Turner v. Safley, 482 U.S. 78 (1987) – establishes rational-basis review for prison regulations. Dissenters argued Turner should govern because housing goes to “core” prison functions.
• Washington v. Harper, 494 U.S. 210 (1990) – re-affirmed that Turner applies whenever prison administration implicates constitutional rights.
• United States v. Virginia (VMI), 518 U.S. 515 (1996) – all sex classifications get intermediate scrutiny; majority relied heavily on this principle.
• Johnson v. California, 543 U.S. 499 (2005) – race-based inmate classifications require strict scrutiny; dissent analogized race carve-out to sex, arguing any carve-out must come from the Supreme Court.
• Fowler v. Stitt, 104 F.4th 770 (10th Cir. 2024) – first Tenth Circuit case treating transgender discrimination as sex discrimination for Equal Protection; panel and concurrence used Fowler to treat the housing decision as sex-based.
• L.W. v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted 2024 – noted by dissent as possible contrary authority; may influence future Supreme Court review.

Legal Reasoning

1. Party-presentation principle. Judge Rossman emphasizes courts decide issues actually argued; since defendants conceded intermediate scrutiny in prior filings, the panel properly applied it. Raising Turner sua sponte would violate neutral-arbiter norms.
2. Characterization of the classification. All parties agreed Ms. Griffith was classified by sex. Under Fowler, transgender status is intertwined with sex, triggering intermediate scrutiny.
3. Balancing Turner and VMI. The panel found no Supreme Court precedent compelling lower courts to downgrade heightened review to rational basis merely because the context is a prison. a. Johnson shows the Court itself carves out specific exceptions (race). b. Until the Supreme Court creates a sex-based exception, VMI controls.
4. Pleading sufficiency. Applying intermediate scrutiny at the motion-to-dismiss stage, the panel concluded the complaint plausibly alleged the jail’s policy was not “exceedingly persuasive” nor substantially related to an important governmental interest.

Impact of the Judgment

• Binding precedent in the Tenth Circuit. Prison officials within Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming must now defend sex-based housing policies under intermediate scrutiny when challenged.
• Transgender rights litigation. The decision bolsters arguments that discrimination against transgender individuals is sex discrimination, further aligning with the Supreme Court’s Title VII logic in Bostock.
• National circuit split potential. The Sixth Circuit in Skrmetti and others favor rational basis review; the Tenth now requires intermediate scrutiny. The split invites Supreme Court resolution.
• Operational adjustments for correctional facilities. Jails/prisons must compile stronger factual records (e.g., safety data, individualized risk assessments) to survive heightened review.
• Constitutional doctrine. Suggests that the Turner framework may yield when a classification triggers a higher tier under general Equal Protection jurisprudence.

Complex Concepts Simplified

• Rational-basis review (Turner variant). The government wins if the policy is reasonably related to a legitimate goal—an easy hurdle.
• Intermediate scrutiny. The government must show the policy furthers an important objective and that the means are substantially related. Harder to satisfy than rational basis, easier than strict scrutiny.
• En banc rehearing. A request for the entire circuit court to rehear a case already decided by a three-judge panel. Denial means the panel opinion stands.
• Party-presentation principle. Courts generally limit themselves to the issues the parties raise, preserving impartiality.
• Transgender classification as sex-based. Following Fowler (10th Cir.) and Bostock (Supreme Court, Title VII context), treating a transgender person based on biological sex is, legally, treatment “because of” sex.

Conclusion

Griffith v. El Paso County solidifies a transformative proposition: when prisons classify inmates on the basis of sex—including transgender status—courts in the Tenth Circuit will demand intermediate scrutiny, rejecting blanket deference under Turner. The en banc denial, though procedural in posture, carries substantive weight: it cements a new doctrinal rule, creates a budding circuit split, and forces correctional administrators to justify sex-based housing decisions with rigorous, evidence-driven arguments. Whether the Supreme Court will reconcile Turner, VMI, and the emerging transgender jurisprudence remains to be seen, but until then, Griffith stands as a landmark in both prisoners’ rights and transgender equality law.