New Precedent on Evaluating Sex-Based Classification in Pretrial Detention and Cross‐Gender Searches

New Precedent on Evaluating Sex-Based Classification in Pretrial Detention and Cross‐Gender Searches

Introduction

The recent decision in Darlene Griffith v. El Paso County, Colorado et al. by the United States Court of Appeals for the Tenth Circuit presents a complex and far-reaching analysis of constitutional claims arising in a pretrial detention setting. At the heart of the litigation are allegations that the policies governing housing assignments and search procedures at the El Paso County Jail discriminate on the basis of sex – and, by extension, transgender status – in violation of plaintiff Darlene Griffith’s rights under the Equal Protection, Fourth, and Fourteenth Amendments. In addition, claims under the Americans with Disabilities Act (ADA) and the Rehabilitation Act have also been raised.

Ms. Griffith, a transgender woman who has been living openly as such for many years and who has been diagnosed with gender dysphoria, contends that by basing housing assignments solely on an individual’s biological anatomy, the Jail’s policies misclassify transgender women. Furthermore, the plaintiff challenges the practice of allowing male deputies to conduct strip searches of transgender women despite her requests for female-led searches. The litigation implicates fundamental issues of identity, privacy, and dignitary rights in the context of correctional administration.

Summary of the Judgment

The Tenth Circuit’s judgment is multifaceted. In a lengthy opinion written by Judge Rossman—with concurring views and a substantial dissent—the Court held:

  • The district court’s dismissal of Ms. Griffith’s Equal Protection claim is reversed and remanded with respect to Sheriff Elder’s official capacity. The panel found that the housing and commissary policies, which segregate detainees solely on the basis of biological sex, raise a plausible claim because they treat transgender women differently from cisgender women. This reversal is anchored in reasoning that aligns with principles from Fowler and the application of heightened (intermediate) scrutiny to sex-based classifications.
  • With respect to Ms. Griffith’s claims challenging the strip search, the Court vacates the district court’s dismissal of the ADA and Rehabilitation Act claims (which were dismissed without prejudice for lack of subject matter jurisdiction), and it also reinstates certain Fourth and Fourteenth Amendment claims. Although the search claims against some individual officers are affirmed due to qualified immunity (in cases involving Commander Gillespie and Deputies Elliss and Mustapick), the Court finds that the allegations against Sheriff Elder in his official capacity warrant further proceedings.
  • On the abuse factor of the Fourth Amendment challenge, the Court finds that the facts as pleaded plausibly allege that Deputy Mustapick’s abusive language and conduct during a cross‐gender strip search may have violated Ms. Griffith’s constitutional rights. However, because it was not “clearly established” at the time of the incident that a male officer’s participation in such searches was impermissible, qualified immunity was granted on other prongs of the claim.

In sum, while the panel ultimately affirms several dismissals based on qualified immunity and procedural grounds, it importantly reverses and remands the Equal Protection claim against Sheriff Elder (in his official capacity) and the Fourth Amendment abusive search claim for further proceedings, thereby signaling a refining of the analysis required for sex-based classifications in custody settings.

Analysis

Precedents Cited

The judgment references a broad spectrum of cases that have shaped the legal landscape governing constitutional claims in detention facilities:

  • Fowler v. Stitt: This more recent decision was pivotal in the Court’s analysis of whether discrimination based on transgender status could be read as sex discrimination. Fowler’s reasoning, which draws from the Supreme Court’s interpretation of Bostock v. Clayton County, helped to support the notion that policies treating transgender and cisgender inmates differently can be subject to heightened scrutiny.
  • TURNER v. SAFLEY: This landmark decision provides that prison regulations affecting inmates’ constitutional rights are valid as long as they are reasonably related to legitimate penological interests. The Court’s analysis relied heavily on Turner’s deferential standard, which is applied to correctional policies. The majority opinion and the dissent diverge significantly on whether heightened scrutiny or rational basis review (à la Turner) should govern sex-based classifications in this context.
  • UNITED STATES v. VIRGINIA (VMI) and J.E.B. v. Alabama ex rel. T.B.: These cases are cited in support of the proposition that sex-based classifications are subject to heightened scrutiny. However, the dissent argues that the inherent differences between sex and gender identity and the way in which correctional institutions operate necessitate a more deferential review.
  • BROWN v. ZAVARAS (1995): Although previously holding that transgender status was not a protected class for Equal Protection purposes, the majority distinguishes this case by focusing on the sex-based rationale in housing policies.
  • Other Circuit and Supreme Court Decisions: The opinion further references cases such as City of Cleburne, MISSISSIPPI UNIVERSITY FOR WOMEN v. HOGAN, and Bostock to contextualize the evolving standards in discrimination claims. These cases, along with various Tenth Circuit opinions (e.g., Grimm, Barney), form the jurisprudential backdrop against which the panel’s reasoning is developed.

Legal Reasoning

The Court’s decision is driven by a nuanced balancing of competing interests: the constitutional rights of transgender detainees versus the deference owed to correctional institutions in matters of prison security and administration.

Equal Protection Claim: The majority finds that even though the Jail’s policies are facially neutral (as they apply the same biological criteria to both cisgender and transgender inmates), they nonetheless differentiate based solely on biological anatomy. Since transgender women, by virtue of being assigned male at birth, are treated differently from cisgender women, the claim is framed as sex discrimination. Drawing on Fowler and the reasoning inherent in Bostock, the Court holds that if a transgender woman were biologically female, she would not be subject to the adverse housing and commissary restrictions. Hence, the differential treatment meets the threshold for heightened (intermediate) scrutiny. At the same time, the Court distinguishes among defendants with respect to qualified immunity, reversing the dismissal only against Sheriff Elder in his official capacity while sustaining immunity for individual officers where the law was not “clearly established.”

Fourth Amendment Search Claims: The analysis of the strip search claims involves a balancing test well established in Fourth Amendment jurisprudence—evaluating the intrusiveness of the conduct versus the governmental justification. Here, the Court finds that a cross‐gender strip search is particularly invasive. Although Ms. Griffith’s allegations of abusive language and conduct by Deputy Mustapick raise serious constitutional concerns, the qualified immunity inquiry ultimately focuses on whether the law was “clearly established” at the time. The Court determines that while the conduct is reprehensible and arguably a violation, the lack of comparable case law at the time means that certain claims (such as the simple cross‐gender element) may be shielded by qualified immunity. Notably, however, the abusive search claim receives renewed scrutiny leading to a reversal of the qualified immunity grant for that particular prong.

ADA and Rehabilitation Act Claims: The opinion also addresses claims under the ADA and the Rehabilitation Act. Although these claims were dismissed by a district court for lack of subject matter jurisdiction (stemming from a technical failure in naming the plaintiff’s defendant correctly under state statute), the appellate discussion is careful to note that the dismissal under Rule 12(b)(6) is vacated. The Court emphasizes that it lacks authority to decide on the merits once the subject matter jurisdiction issue has been raised but leaves open the possibility for remand so that the parties may resolve the technical naming issue.

Impact on Future Cases and Relevant Areas of Law

The judgment sets a significant precedent in several ways:

  • Clarification on Heightened Scrutiny for Sex-Based Classifications: The decision signals that even when a policy is facially neutral in its application, if it results in differential treatment for transgender detainees compared to cisgender detainees, heightened scrutiny may be warranted. This could affect future claims in both correctional settings and other areas where sex and gender identity issues are intermingled.
  • Qualified Immunity Standards: The nuanced treatment of qualified immunity—especially the reversal of dismissal for claims against a government official in his official capacity—may influence how courts assess whether officers had fair notice that certain conduct was unconstitutional. Future litigants challenging cross‐gender searches or similar invasive procedures may draw on this analysis.
  • Procedural and Jurisdictional Considerations: The discussion on subject matter jurisdiction and the proper manner of naming governmental entities underscores the importance of technical compliance in litigation, which will be closely monitored in subsequent cases.

Simplifying Complex Legal Concepts

To aid in understanding this dense opinion, it is useful to explain some key legal concepts:

  • Heightened Scrutiny: This is a judicial standard used when a law or policy discriminates on the basis of a characteristic that is considered fundamental (like sex or race). The government must show that the policy is closely related to achieving an important governmental objective.
  • Rational Basis Review (Turner): In many correctional settings, courts defer to prison and jail administrators. Under Turner, a policy is upheld if it is reasonably related to a legitimate penological interest—even if it restricts some constitutional rights.
  • Qualified Immunity: This doctrine protects government officials from liability for constitutional violations unless the law was “clearly established” such that every reasonable official would understand that the conduct was unlawful.
  • Subject Matter Jurisdiction: This refers to a court’s authority to hear a type of case. If a plaintiff “misnames” a governmental entity, the court may dismiss the case on jurisdictional grounds.

Conclusion

In conclusion, the Tenth Circuit’s decision in this case marks a pivotal moment in the treatment of transgender rights in correctional settings. The judgment reverses the dismissal of the Equal Protection claim against Sheriff Elder (in his official capacity), requiring further proceedings on whether the Jail’s housing and commissary policies violate the Constitution. At the same time, while several Fourth Amendment claims involving cross‐gender strip searches are ultimately dismissed on qualified immunity grounds, the Court has clarified that an abusive and unsupervised search may give rise to constitutional liability.

This comprehensive opinion, which engages deeply with precedents ranging from Fowler and Turner to VMI and beyond, provides meaningful guidance on the level of judicial deference afforded to correctional policies. It underscores that while incarceration policies have traditionally enjoyed significant latitude, there are circumstances—in particular those implicating the personal dignity and safety of transgender individuals—in which careful judicial scrutiny is warranted.

Note: The dissenting opinion, authored by Judge Tymkovich, provides a contrasting view that emphasizes adherence to rational basis review in the correctional context and expresses skepticism about extending heightened scrutiny to sex-based classifications in inmate placement. This divergence signals that the evolution of this area of law remains dynamic.

Overall, the judgment both solidifies prevailing principles regarding qualified immunity and subject matter jurisdiction in correctional litigation and signals potential future shifts in the application of heightened scrutiny to cases involving transgender rights—a development that will undoubtedly influence and shape subsequent legal disputes in this challenging field.

Case Details

DARLENE GRIFFITH, Plaintiff-Appellant, v. EL PASO COUNTY, COLORADO; BILL ELDER, in his individual and official capacities; CY GILLESPIE, in his individual capacity; ELIZABETH O'NEAL, in her individual capacity; ANDREW MUSTAPICK, in his individual capacity; DAWNE ELLISS, in her individual capacity; TIFFANY NOE, in her individual capacity; BRANDE FORD, in her individual capacity, Defendants-Appellees. DISABILITY RIGHTS EDUCATION AND DEFENSE FUND; THE ARC OF THE UNITED STATES; AUTISTIC SELF ADVOCACY NETWORK; AUTISTIC WOMEN AND NONBINARY NETWORK; THE JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW; THE COELHO CENTER FOR DISABILITY LAW POLICY AND INNOVATION; CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER; DISABILITY LAW COLORADO; DISABILITY RIGHTS ADVOCATES; DISABILITY RIGHTS BAR ASSOCIATION; IMPACT FUND; NATIONAL ASSOCIATION FOR RIGHTS PROTECTION AND ADVOCACY; NATIONAL DISABILITY RIGHTS NETWORK; TRANSGENDER LEGAL DEFENSE & EDUCATION FUND; UNITED STATES OF AMERICA; AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF COLORADO; JEREMIAH HO; M. DRU LEVASSEUR; NANCY C. MARCUS; DARA E. PURVIS; ELIOT T. TRACZ; ANN E. TWEEDY; KYLE COURTENAY VELTE; EZRA ISHMAEL YOUNG, Amici Curiae.
Year: 2025
Court: United States Court of Appeals, Tenth Circuit

Judge(s)

ROSSMAN, CIRCUIT JUDGE

Attorney(S)

Devi M. Rao of Roderick &Solange, Washington, DC (Meghan Palmer and Wynne Muscatine Graham of Roderick &Solange, Washington, DC and Andrew McNulty and Mari Newman of Newman|McNulty, Denver, Colorado with her on the briefs), for Plaintiff-Appellant. Christopher Michael Strider of El Paso County Attorney's Office, Colorado Springs, Colorado (Nathan J. Whitney and Steven W. Martyn, El Paso County Attorney's Office of Colorado Springs, Colorado, on the brief), for Defendant-Appellees. Matthew Drecun of U.S. Department of Justice Civil Rights Division, Washington, DC (Kristen Clarke, Assistant Attorney General, Tovah R. Calderon and Jonathan L. Backer of U.S. Department of Justice Civil Rights Division, Washington, DC, with him on the brief), for the United States. Cynthia L. Rice of Civil Rights Education and Enforcement Center, Denver, Colorado and Maria Michelle Uzeta of Disability Rights Education &Defense Fund of Berkeley, California filed an amici curiae brief for Disability Rights Education and Defense Fund, The Arc of the United States, Autistic Self Advocacy Network, Autistic Women and Nonbinary Network, The Judge David L. Bazelon Center for Mental Health Law, The Coelho Center for Disability Law, Policy and Innovation, Civil Rights Education and Enforcement Center, Disability Law Colorado, Disability Rights Advocates, Disability Rights Bar Association, Impact Fund, National Association for Rights Protection and Advocacy, National Disability Rights Network, and Transgender Legal Defense &Education Fund. Anna I. Kurtz and Timothy R. MacDonald of ACLU of Colorado, Denver, Colorado and Harper S. Seldin of American Civil Liberties Union Foundation, New York, New York filed amici curiae brief for American Civil Liberties Union and the American Civil Liberties Union of Colorado. Kyle C. Velte of University of Kansas School of Law, Lawrence, Kansas and Ezra Ishmael Young of Law Office of Ezra Young, Ithaca, New York filed amici curiae brief for Legal Scholars of Sex and Gender.

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