The members of the Denver-based federal appeals court rejected El Paso County’s request on Tuesday for full-court review of a recent decision reinstating the constitutional rights lawsuit of a transgender detainee.

In February, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit concluded Darlene 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. The decision was 2-1, with Judge Veronica S. Rossman and Senior Judge David M. Ebel siding with Griffith, and Judge Timothy M. Tymkovich dissenting.

The county then asked the 10th Circuit to rehear the case “en banc,” meaning with all 12 of the court’s active judges. In a June 10 order, the 10th Circuit rejected the request by a vote of 9-3, with the seven appointees of Democratic presidents all voting to deny, two appointees of Republican presidents joining them, and the remaining three GOP appointees voting for reconsideration.

Attached to the order were statements from three judges in support of their positions. Tymkovich, a George W. Bush appointee from Colorado, argued the full court should have considered whether prisons and jails must receive more deference in their decisions to classify detainees according to sex assigned at birth, rather than have those decisions viewed with heightened scrutiny.

“(O)nly the Supreme Court can truly solve this conflict. This case is a good candidate for its review,” Tymkovich wrote for himself, Judge Allison H. Eid of Colorado and Judge Joel M. Carson III of New Mexico. Eid and Carson are both first-term appointees of President Donald Trump.

En banc review is rare in the 10th Circuit, with the court granting fewer than one request out of the approximately 190 petitions it receives annually. Because precedent-setting decisions by three-judge panels are binding on the court, only the entire membership can overrule a panel opinion. Consequently, the 10th Circuit tends to grant en banc requests when there are conflicting decisions or the court is an outlier nationally on an issue.

In her underlying lawsuit, Griffith entered the county 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, including her right to equal protection of the laws, by subjecting her to groping, aggressive searches and denials of feminine products.

In the 10th Circuit panel’s majority opinion, Rossman, a Joe Biden appointee from Colorado, concluded a trial judge incorrectly dismissed Griffith’s case after believing the jail policy classifying detainees by biological sex only needed a rational justification, which the county did have. Instead, the jail’s protocols were fundamentally sex-based, requiring a more compelling reason from the government, Rossman wrote for herself and Ebel, a Ronald Reagan appointee from Colorado.

Tymkovich, in his dissent at the time, discussed at length the “tension” between two U.S. Supreme Court directives:

• Turner v. Safley, a 1987 decision finding prison regulations are constitutional so long as they are “reasonably related” to legitimate interests of prison management

• United States v. Virginia, a 1996 decision that stated “all gender-based classifications” receive heightened scrutiny from the courts

The county seized on that tension in its post-decision request, arguing the degree of leniency afforded to the jail’s classification policy should be reviewed by the full court. At the same time, El Paso County — which only mentioned the Turner case once on appeal — conceded it “could have been more thorough” in arguing the issue previously.

In the 10th Circuit’s Tuesday order rejecting the county’s petition, Rossman authored a statement pointing the finger at El Paso County for neglecting to pursue the issue it now asked the entire court to address. She also noted she had responded “at some length” to Tymkovich’s own arguments about the competing case law.

The panel majority “did not avoid anything,” she wrote for herself and Judge Richard E.N. Federico, a Biden appointee from Kansas.

Tymkovich, in his statement attached to the en banc order, reiterated his belief that the county only needed a rational reason for classifying detainees based on biological sex, given what the Supreme Court said in Turner.

“There is no Turner carve-out for sex discrimination,” he argued. “Holding that sex-discrimination is an exception to Turner puts us out of step with the Supreme Court and other circuits. And it is simply incorrect.”

Judge Harris L Hartz, a Bush appointee from New Mexico, wrote separately to say he was not voting for full-court review, but he nonetheless agreed with Tymkovich. He also suggested the Supreme Court could provide relevant constitutional guidance soon in a pending case about medical care for trans minors.

“We’re gratified that the majority of Tenth Circuit judges understood that this issue was not raised by defendants in this case,” said Devi M. Rao, an attorney representing Griffith, in an email. “And for these reasons we’re confident that the Supreme Court won’t be interested in reviewing this case.”

The El Paso County Attorney’s Office did not immediately respond to a request for comment.

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