The federal appeals court based in Denver ruled on Wednesday that a transgender detainee at the El Paso County jail could proceed with her lawsuit against the sheriff and a deputy for alleged violations of her constitutional rights.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed that several of Darlene Griffith’s claims were not viable for various reasons. But by 2-1, the majority concluded Griffith had credibly alleged then-Sheriff Bill Elder’s housing and commissary policies unconstitutionally discriminated against her based on sex, and that a male deputy acted unlawfully when strip searching her.

“When a transgender woman who is deemed biologically male reports to the Jail, she is denied female housing and certain commissary products; not so for women deemed biologically female. In other words, an inmate is treated differently precisely based on a determination of her biological sex,” wrote Judge Veronica S. Rossman in the Feb. 19 opinion.

Rossman, an appointee of Joe Biden, authored the majority opinion for herself and Senior Judge David M. Ebel, a Ronald Reagan appointee. She stressed the majority was not deciding whether a person’s transgender status amounts to a protected class alongside race and sex.

Instead, the majority concluded Griffith’s claim of unequal treatment should be viewed through the lens of “heightened scrutiny,” meaning the sheriff must outline how his policy of classifying trans women as male serves “important governmental objectives.”

Judge Timothy M. Tymkovich, an appointee of George W. Bush, dissented. Calling Griffith a “biological male,” he said he did not believe the U.S. Constitution “compels jails to house males and females together.”

If Griffith were to prevail, it “would impose on others the very consequences she fears, and which the Jail’s policies aim to minimize. These consequences include female guards having to search and female prisoners being exposed to Ms. Griffith’s male anatomy,” Tymkovich wrote.

Griffith entered the jail as a pretrial detainee in 2020, where she was assigned to a male housing unit. She filed suit in 2021, and the El Paso County jail moved her into a female ward one day before a judge was to hold a hearing on her transfer request.

Griffith claimed Elder and jail personnel violated her constitutional rights. She alleged:

• Jail staff denied her women’s underwear and would not let her purchase lipstick at the commissary

• Other detainees groped, taunted or assaulted her on multiple occasions

• Male deputies repeatedly searched her

• On one occasion, despite a female deputy being present, Deputy Andrew Mustapick “aggressively” searched Griffith’s genitals and made lewd comments about her body

Griffith alleged the experience led her to attempt self-castration in the jail.

In February 2023, U.S. Magistrate Judge N. Reid Neureiter recommended dismissing Griffith’s claims in their entirety. He believed his hands were tied by a 1995 decision of the 10th Circuit holding that “transsexuals are not a protected class.” Neureiter nonetheless argued the 10th Circuit should overrule that decision.

If policies affecting trans plaintiffs merited heightened justification, “then the Court would not hesitate to conclude (at least at the motion to dismiss stage) that Plaintiff’s placement as a transgender woman in an all-male unit was not substantially related to an important governmental interest,” he wrote.

But because the county’s classification policy for trans detainees was merely rational, Neureiter did not believe Griffith could succeed.

Griffith objected to Neureiter’s analysis, but U.S. District Court Senior Judge Christine M. Arguello upheld the recommendation. She, too, agreed that in the absence of the 10th Circuit’s precedent, Griffith “plausibly alleges that Defendants’ actions in placing Plaintiff in an all-male unit constituted discrimination not substantially related to an important government interest.”

Arguello concluded, “regretfully,” that she could not look at Griffith’s claims through the more stringent lens associated with sex-based discrimination.

But the 10th Circuit’s majority found Neureiter and Arguello were mistaken to believe their hands were tied. They had focused on the level of protection afforded to Griffith as a trans person, Rossman wrote, without realizing the jail’s classification policies were, in fact, sex-based.

As alleged, “the Jail makes these classifications ‘on the basis of the individual’s genitalia’ alone,” not their gender identity, wrote Rossman. “Ms. Griffith was denied the housing and products to which she would have been entitled were she biologically female. Put simply, were Ms. Griffith’s biological sex different, she would have been treated differently.”

The majority further concluded Griffith credibly alleged a constitutional violation through the involvement of Mustapick, the male deputy, in her strip search. But because the law was not clearly established in 2020, he could not be held liable himself. Griffith’s claim could, however, proceed against Elder as the jail’s policymaker.

As for Griffith’s related claim that Mustapick conducted an “abusive” strip search by making harassing comments about her body, the majority concluded Mustapick likewise committed an alleged constitutional violation. Although there was no prior case under similar circumstances putting Mustapick on notice that his alleged conduct was unreasonable, Rossman wrote that Griffith’s case was the “rare” scenario in which a government employee’s conduct would be clearly unlawful.

The 10th Circuit panel reinstated Griffith’s claims against Elder and Mustapick only. It concluded Griffith’s other claims against various deputies and the county itself were not viable, and dismissed the remainder of the lawsuit.

Tymkovich, in dissent, argued the majority had essentially established that housing inmates based on their biological sex is “presumptively unconstitutional.”

“While I acknowledge that an inmate’s transgender status raises significant placement, security, and treatment challenges for jail administrators, Ms. Griffith has not plausibly alleged her gender identity overrides the justifications for the Jail’s sex-based policies,” wrote Tymkovich.

He added that classification decisions in jails and prisons should be handled on a case-by-case basis. Because Tymkovich would have concluded the county jail’s classification of Griffith as male was rational, he would have dismissed her claim. As for Mustapick’s allegedly abusive strip search, Tymkovich would have ruled that “deplorable language” does not support a constitutional violation.

Ebel wrote a brief concurrence noting that “arguably divergent language” and “inherent ambiguities” in case law made the appeal difficult, but he believed “justice will best be served” by allowing Griffith’s claims to continue, according to Rossman’s opinion.

“I want to compliment both Judge Tymkovich and Judge Rossman for their careful and thorough analysis on these issues, and I am confident that their conflicting opinions will contribute to the further evolution of the law in this case,” he added.

The case is Griffith v. El Paso County et al.