Plaintiff-Appellant Darlene Griffith, a transgender woman, filed a civil rights lawsuit against El Paso County, Colorado, Sheriff Bill Elder, and several jail officials raising claims under 42 U.S.C. § 1983 for violations of her Equal Protection rights and Fourth Amendment rights, as well as claims under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The district court dismissed all of Ms. Griffith’s claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and Ms. Griffith appealed to the United States Court of Appeals for the Tenth Circuit.

Factual Overview

Ms. Griffith is a transgender woman who has been living openly as a woman for over twenty years. She has been diagnosed with gender dysphoria, a condition recognized by the American Psychiatric Association as the significant distress that may accompany the incongruence between a transgender person’s gender identity and assigned sex. As part of her medically supervised treatment, Ms. Griffith changed her name, altered her physical appearance, and takes feminizing hormones, which have caused her to develop female secondary sex characteristics.

In the summer of 2020, Ms. Griffith entered El Paso County Jail as a pretrial detainee. She asked to be housed in a female unit, explaining that she was a transgender woman with gender dysphoria. Despite her request, the Jail maintained a policy of making housing assignments based on an individual’s genitalia and placed her in a male housing unit. Ms. Griffith also underwent a strip search during intake, conducted in part by Deputy Mustapick, a male officer, despite her requests for only female officers to conduct the search. Ms. Griffith alleged that Deputy Mustapick conducted the search in an abusive manner, making sexually explicit comments and threats.

During her detention, Ms. Griffith experienced mistreatment from both jail staff and fellow inmates. She alleged she was sexually assaulted by another inmate and subjected to continuous cross-gender pat-down searches. The Jail also denied her requests for women’s underwear and lipstick, products available to cisgender women at the Jail. Ms. Griffith filed multiple grievances about her treatment, but no changes were made to her housing assignment.

Ms. Griffith filed suit alleging sixteen claims under federal and state law against El Paso County, Sheriff Elder, Commander Gillespie, and Deputies O’Neal, Mustapick, Elliss, Noe, and Ford. The district court granted the defendants’ motion to dismiss, adopting a magistrate judge’s recommendation that Ms. Griffith failed to state plausible claims.

Legal Analysis

Equal Protection Claims

The Tenth Circuit concluded that Ms. Griffith plausibly alleged an Equal Protection violation based on the Jail’s Housing Policy and Commissary Policy. The court held that these policies, which assign inmates to housing units based on biological sex and restrict certain items based on sex, are sex classifications subject to heightened scrutiny.

The court rejected the defendants’ argument that Brown v. Zavaras controlled the outcome. In Brown, the Tenth Circuit had held that a transgender plaintiff was not a member of a protected class, but the current court noted that Brown did not address whether the policies at issue constituted sex discrimination. The court instead relied on its recent decision in Fowler v. Stitt, which held that discrimination against transgender people can constitute sex discrimination.

The court applied intermediate scrutiny, which requires that sex-based classifications serve “important governmental objectives” through means “substantially related to” achieving those objectives. At the motion to dismiss stage, the court found Ms. Griffith had plausibly alleged the policies perpetuated sex-based stereotypes and harmed her without sufficient justification.

However, the court affirmed the dismissal of claims against the individual defendants in their individual capacities based on qualified immunity, as the law was not clearly established at the time of the alleged violations. The court reversed only as to Sheriff Elder in his official capacity.

Conditions of Confinement Claims

The court affirmed the dismissal of Ms. Griffith’s Fourteenth Amendment conditions of confinement claim against all defendants. For Deputies Noe and Ford, the court found Ms. Griffith had failed to properly preserve her argument by not specifically challenging the magistrate judge’s finding that she failed to allege deliberate indifference. For Sheriff Elder in his official capacity, the court found Ms. Griffith had not plausibly alleged deliberate indifference or that his policy was the legally relevant cause of the harassment and mistreatment she experienced.

Fourth and Fourteenth Amendment Search Claims

Regarding Ms. Griffith’s claims challenging the strip search, the court held that Ms. Griffith plausibly alleged a constitutional violation based on Deputy Mustapick conducting a cross-gender strip search, but affirmed the grant of qualified immunity because the law was not clearly established at the time that a male deputy could not strip search a transgender female detainee.

The court reversed the dismissal of Ms. Griffith’s Fourth Amendment claim against Deputy Mustapick for conducting the search in an abusive manner. The court found she plausibly alleged Deputy Mustapick violated her Fourth Amendment rights by making sexually explicit comments and threats during the search, and that this violation was clearly established, as any reasonable officer would have known such conduct was unlawful.

The court also reversed the dismissal of Ms. Griffith’s Fourth and Fourteenth Amendment claims against Sheriff Elder in his official capacity related to the cross-gender strip search policy.

ADA and Rehabilitation Act Claims

The district court had dismissed Ms. Griffith’s ADA and Rehabilitation Act claims against El Paso County for lack of subject matter jurisdiction under Rule 12(b)(1) because she failed to name “The board of county commissioners of the county of El Paso” as required by Colorado law. The district court then proceeded to rule on the merits under Rule 12(b)(6). On appeal, Ms. Griffith challenged only the Rule 12(b)(6) dismissal but not the Rule 12(b)(1) dismissal.

The Tenth Circuit held that once the district court determined it lacked subject matter jurisdiction, it had no authority to rule on the merits. Because Ms. Griffith did not challenge the Rule 12(b)(1) dismissal on appeal, the court vacated the district court’s Rule 12(b)(6) ruling regarding the ADA and Rehabilitation Act claims.

Concurring Opinion

Judge Ebel wrote a concurring opinion acknowledging the case presented “novel and difficult equal protection issues” requiring a balance of the parties’ conflicting interests. He noted the lack of a developed factual record at the motion to dismiss stage and agreed with the majority that justice would be best served by allowing Ms. Griffith’s claims to continue against the potentially liable parties.

Dissenting Opinion

Judge Tymkovich dissented, arguing that the Supreme Court’s decision in Turner v. Safley compelled the application of rational basis review rather than heightened scrutiny to the Jail’s policies. He contended that under Turner, when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.

Judge Tymkovich believed Ms. Griffith’s claims failed because she was not similarly situated to female inmates and because the Jail’s policies satisfied rational basis review, as they were reasonably related to institutional security concerns. He also would have affirmed the dismissal of Ms. Griffith’s Fourth Amendment claims against both the County and Deputy Mustapick, finding that she failed to identify clearly established law that would transform an otherwise reasonable search into a constitutionally violative one due to offensive language.

The Tenth Circuit reversed and remanded for further proceedings on Ms. Griffith’s Fourteenth Amendment Equal Protection claim against Sheriff Elder in his official capacity, her Fourth and Fourteenth Amendment cross-gender search claims against Sheriff Elder in his official capacity, and her Fourth Amendment abusive search claim against Deputy Mustapick, while affirming the dismissal of all other claims.