Griffith v. El Paso County, Colorado

129 F.4th 790

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 19, 2025
• Docket: 23-1135
• Status: Published

Opinion

Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH February 19, 2025 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

DARLENE GRIFFITH,

Plaintiff - Appellant,

v. No. 23-1135

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 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 2

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. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:21-CV-00387-CMA-NRN) _________________________________

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.

2 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 3

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. _________________________________

Before TYMKOVICH, EBEL, and ROSSMAN, Circuit Judges. _________________________________

ROSSMAN, Circuit Judge. _________________________________

Plaintiff-Appellant Darlene Griffith, a transgender woman, filed a civil

rights lawsuit concerning her pretrial confinement at the El Paso County Jail

in Colorado. The district court dismissed Ms. Griffith’s complaint under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Ms. Griffith now seeks

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reversal. She specifically appeals the dismissal of her constitutional claims

under 42 U.S.C. § 1983 and her claims under the Americans with Disabilities

Act (ADA) and the Rehabilitation Act.

Exercising jurisdiction under 28 U.S.C. § 1291, we conclude remand is

required, but only on some of Ms. Griffith’s claims.

As we will explain, we reverse and remand for further proceedings on

Ms. Griffith’s Fourteenth Amendment Equal Protection claim against Sheriff

Elder in his official capacity, Fourth and Fourteenth Amendment cross-gender

search claims against Sheriff Elder in his official capacity, and Fourth

Amendment abusive search claim against Deputy Mustapick. We vacate the

district court’s order dismissing Ms. Griffith’s ADA and Rehabilitation Act

claims under Federal Rule of Civil Procedure 12(b)(6) because those claims

were dismissed without prejudice for lack of subject matter jurisdiction under

Rule 12(b)(1) and that ruling is unchallenged on appeal. We otherwise affirm.

I1

The legal issues before us require discussing fundamental aspects of a

person’s identity. We thus begin with an overview of the complaint’s

1 We take the facts from the well-pleaded allegations in the operative

complaint. 4 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 5

allegations about sex and gender.2 We then describe the factual and procedural

background underlying this appeal and consider Ms. Griffith’s appellate

challenges.

A

Sex is, generally speaking, assigned at birth by reference to one’s

anatomy. Gender identity is an “innate, internal sense of one’s sex.” R.31 ¶ 21.

According to Ms. Griffith, “[m]ost people’s gender identity is consistent with

the sex they were assigned at birth.” R.31 ¶ 21. People whose gender identity

conforms to their biological sex are cisgender. Transgender people “have a

gender identity that is different from their assigned sex.” R.31 ¶ 21. The gender

identity of a transgender person “is a basic part of [their] core identity.” R.31

¶ 21.

Some transgender people experience gender dysphoria. The American

Psychiatric Association recognizes gender dysphoria as a medical condition

characterized by the “significant distress that may accompany the

incongruence between a transgender person’s gender identity and assigned

2 The dissent rejects these allegations because “Ms. Griffith defines ‘sex’

. . . without citation, and avoids defining gender.” Dissent at 2. The dissent proffers its own explanations of those terms, rooted in sources other than the complaint. See Dissent at 3. At this procedural stage, as is consistent with our typical practice, we rely only on “the allegations within the four corners of the complaint” and “tak[e] those allegations as true.” Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003) (quoting Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)). 5 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 6

sex.” R.31 ¶ 22. “The accepted course of medical treatment to alleviate the

symptoms of gender dysphoria often involves allowing the individual to live as

his or her chosen gender.” R.31 ¶ 24. This can include changes to the way one

dresses, grooms, or otherwise presents to be consistent with their gender

identity. Gender dysphoria can be treated with hormone therapy,

psychotherapy, or surgery to change “primary and/or secondary sex

characteristics.” R.31 ¶ 24. When gender dysphoria is left untreated, or is

inadequately treated, it produces “intense emotional suffering, anxiety and

depression, suicidality, and thoughts or acts of self-harm.” R.33–34 ¶ 37.

B

Ms. Griffith is transgender and has been living openly as a woman for

over twenty years. She has been diagnosed with gender dysphoria. “As part of

her medically supervised treatment,” Ms. Griffith “changed her name and

altered her physical appearance to conform to her female gender identity.” R.32

¶ 25. She dresses in feminine attire and takes feminizing hormones, which

have caused her to develop “female secondary sex characteristics such as

breasts, soft skin, a lack of facial hair, and other characteristics typically

associated with women.” R.32 ¶ 25.

Ms. Griffith entered El Paso County Jail (Jail) as a pretrial detainee in

the summer of 2020. She asked to be housed in a female unit. Ms. Griffith

explained she was a transgender woman and, as her medical records

6 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 7

confirmed, had gender dysphoria. Ms. Griffith feared “being constantly

searched by male guards” and “being considered a man.” R.37 ¶ 48. She also

“feared being sexually abused and assaulted in male facilities by both guards

and inmates.” R.37 ¶ 48.3

According to Ms. Griffith, the Jail maintains an “official policy”—

“promulgat[ed] and carr[ied] out” by “Defendants Elder and Gillespie”—of

making custodial housing assignments “on the basis of the individual’s

genitalia” (Housing Policy). R.35 ¶ 42. The Jail thus “refuses to house

transgender women in female housing facilities” and instead places

“transgender women . . . in male units within the El Paso County Jail.” R.37

¶ 51. Appellee Deputy Tiffany Noe was involved in Ms. Griffith’s intake

screening. Deputy Noe assigned Ms. Griffith to male housing, pursuant to the

Jail’s Housing Policy.

Ms. Griffith also underwent a visual body cavity examination—also

known as a strip search—during the intake process. Ms. Griffith contends

“official policy” at the Jail dictates “transgender women (including those with

Gender Dysphoria) are searched, including strip searched, by male staff and

not by female staff” (Search Policy). R.41 ¶ 71. Appellee Deputy Dawne Elliss,

a female, and Appellee Deputy Andrew Mustapick, a male, searched Ms.

3 Ms. Griffith is also legally blind.

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Griffith. Before the search started, Ms. Griffith asked several times for Deputy

Mustapick to leave the room. Deputy Elliss told Ms. Griffith a male deputy

would have to search her “pursuant to El Paso County policy and procedure”

because “she was ‘still a male’ in El Paso County’s ‘system.’” R.41–42 ¶ 74.

With Deputy Mustapick present, Deputy Elliss told Ms. Griffith to

remove her shirt. She examined Ms. Griffith’s bare breasts. Deputy Elliss then

left Ms. Griffith alone with Deputy Mustapick. Deputy Mustapick “ordered Ms.

Griffith to take off her socks, pants, and panties” and place her hands on the

wall. R.42 ¶ 77. He told Ms. Griffith to “step back, bend over, and ‘spread [her]

sexy cheeks.’” R.42 ¶ 77. Deputy Mustapick said he was “‘going to go balls deep

in that ass’ while grabbing his own penis.” R.42 ¶ 78. He was “extremely

aggressive while searching Ms. Griffith’s genitals.” R.42 ¶ 78. Deputy

Mustapick “warned [Ms. Griffith] that she had better not tell anyone about

what he did and said to her” during the strip search—otherwise, “he would

make sure that she was brutalized by the guards at El Paso County Jail.” R.42

¶ 79.

A few days after intake, Ms. Griffith asked Appellee Deputy Brande Ford

to transfer her out of the male housing unit and into female housing. Deputy

Ford refused. Ms. Griffith alleges “housing her in an all-male unit subjected

her to a risk of sexual harassment, sexual assault, and extreme emotional

distress from being treated as a man.” R.53 ¶ 146. In her complaint, Ms.

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Griffith describes experiencing mistreatment by Jail staff and fellow inmates

during her pretrial confinement. Following “official El Paso County policy”

male deputies “continuous[ly]” subjected Ms. Griffith to cross-gender pat-down

searches. R.44 ¶ 89. Ms. Griffith claims male deputies regularly touched “her

breast[s] and groin when patting her down.” R.44 ¶ 90. And the Jail allowed

male deputies to search Ms. Griffith without a female deputy present. R.45 ¶

94. Ms. Griffith experienced anxiety and exacerbated symptoms of gender

dysphoria.

Ms. Griffith claims she was sexually assaulted by a fellow inmate in the

male housing unit. While “lying in her bunk in the all-male unit,” Ms. Griffith

alleged, another inmate “groped her right breast” and told her “you know you

want this dick.” R.43 ¶ 85. Ms. Griffith was “so distressed that she asked to see

a mental health provider.” R.43 ¶ 86. A witness “told El Paso County officials

that he witnessed at least three to four other similar assaults of Ms. Griffith.”

R.44 ¶ 87.4

4 Ms. Griffith alleged Jail staff intentionally made the situation worse. A

few months into her detention, Ms. Griffith informed a deputy at the Jail she was uncomfortable that the other inmates in her unit were not wearing shirts. The deputy then walked over to the male inmates and yelled, “the blind faggot said you need to put your shirts on.” R.46 ¶ 100. According to Ms. Griffith, this statement was “designed to create an antagonistic relationship between her and other inmates, placing her at an even greater risk of assault.” R.46 ¶ 100. 9 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 10

Ms. Griffith also claims the Jail would not allow her to have a sports bra

and women’s underwear—products provided to cisgender women at the Jail.

Several months after intake, Ms. Griffith wrote a grievance requesting the

items. In response to her grievance, the Jail provided Ms. Griffith with a sports

bra but continued to deny her request for female underwear because “she did

not need to ‘hold female products down there.’” R.48 ¶ 111. Appellee Cy

Gillespie, a commander at the Jail, told Ms. Griffith she would “never get

panties in the El Paso County Jail.” R.49 ¶ 114. Ms. Griffith further alleges

“[c]isgender women [were] allowed to purchase lipstick at the commissary,” but

Commander Gillespie told her she could not, “per El Paso County Jail policy”

(Commissary Policy). R.49 ¶ 117.5 She alleges this Commissary Policy is, in

turn, a result of “Defendant Elder’s policy of housing Ms. Griffith in a male

unit,” as well as “customs and practices . . . that condone discriminatory

treatment of transgender prisoners.” R.49 ¶ 118.

Ms. Griffith regularly complained to officials at the Jail about her alleged

mistreatment. She also submitted at least six grievances, which she believed

would be transmitted to Commander Gillespie. The grievances described Ms.

5 We use the term Commissary Policy to refer to the allegations in Ms.

Griffith’s complaint about both the Jail’s policy of refusing to issue transgender female inmates products available to cisgender female inmates and the Jail’s policy of prohibiting transgender women from buying those products at the commissary. 10 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 11

Griffith’s gender dysphoria, her extreme anxiety, and the hardship she

experienced in the men’s housing unit. She explicitly requested to be housed

with other women.6 Ms. Griffith also filed grievances concerning the cross-

gender searches and the Jail’s refusal to allow her to “dress in accordance with

her gender identity.” R.48 ¶¶ 110–112.

Due to the pervasive mistreatment stemming from the Jail’s policies, Ms.

Griffith told jail staff she planned to “remove her penis herself once she could

figure out how to do it.” R.47 ¶ 104. Ms. Griffith has a long history of self-harm,

including “self-castration behavior,” when her gender dysphoria is not

“accommodated and treated.” R.34 ¶ 38. During her pretrial confinement at

the Jail, Ms. Griffith wrapped “a rubber band around her genitalia extremely

tightly with the purpose of self-castration.” R.41 ¶ 69.

C

Ms. Griffith alleged sixteen claims under federal and state law, and

named as defendants El Paso County, Sheriff Elder, Commander Gillespie, and

Deputies O’Neal, Mustapick, Elliss, Noe, and Ford.7 Ms. Griffith did not plead

6 At least one of Ms. Griffith’s grievances informed the Jail she “had

previously been housed in female units in other correctional facilities.” R.38 ¶ 58. The response informed Ms. Griffith “she would continue to be housed in a male unit based on El Paso County’s policies and procedures.” R.38 ¶ 58. 7 Ms. Griffith first filed a pro se lawsuit in February 2021. Counsel was

soon appointed. The Third Amended Complaint is the operative pleading before us. 11 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 12

every claim against every defendant. We identify the relevant defendants and

the claims against them when discussing the issues on appeal.

As relevant to this appeal, Ms. Griffith alleged four constitutional claims

under 42 U.S.C. § 1983: (1) a claim under the Equal Protection Clause of the

Fourteenth Amendment against all defendants challenging the Jail’s policies

that required housing her in an all-male unit and denying her clothing and

products available to cisgender female inmates; (2) a Fourteenth Amendment

substantive due process claim against Sheriff Elder and Deputies Noe and

Ford alleging unconstitutional conditions of confinement at the Jail; (3) a

Fourth Amendment claim against Sheriff Elder and Deputies Mustapick and

Elliss challenging the abusive cross-gender strip search; and (4) a Fourteenth

Amendment claim against Sheriff Elder, Commander Gillespie, and Deputies

Mustapick and Elliss alleging the strip search violated Ms. Griffith’s rights to

privacy and bodily integrity. Ms. Griffith also alleged El Paso County violated

the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et. seq., and the

Rehabilitation Act, 29 U.S.C. § 701, et. seq., because the Jail refused to

accommodate her gender dysphoria.

Appellees moved to dismiss the complaint under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). The district court referred the motion to a

magistrate judge. After briefing and oral argument, the magistrate judge

recommended granting the motion to dismiss. Ms. Griffith objected to the

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magistrate judge’s recommendation under Federal Rule of Civil Procedure

72(b). The district court fully adopted the recommendation and dismissed Ms.

Griffith’s complaint. This timely appeal followed.

II

Appellees first insist “the firm waiver rule forecloses this appeal.” Resp.

Br. at 14. We are not persuaded.

Federal Rule of Civil Procedure 72(b)(2) permits a party to “serve and

file specific written objections” to a magistrate judge’s recommendation. The

district court must then “determine de novo any part of the magistrate judge’s

disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). We

have “adopted a firm waiver rule” that “provides that the failure to make

timely objection . . . waives appellate review of both factual and legal

questions.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010)

(alteration in original) (quoting Wirsching v. Colorado, 360 F.3d 1191, 1197

(10th Cir. 2004)). A “district court’s decision to review [a recommendation] de

novo, despite the lack of an appropriate objection, does not, standing alone,

preclude application of the [firm] waiver rule” on appeal. Vega v. Suthers, 195

F.3d 573, 580 (10th Cir. 1999).

Appellees contend Ms. Griffith “failed to make specific objections to the

Recommendation below,” so appellate review in this court is foreclosed. Resp.

Br. at 14 (emphasis added). We disagree. To preserve an issue for appellate

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review, a party’s objections to the magistrate judge’s report and

recommendation need only be “sufficiently specific to focus the district court’s

attention on the factual and legal issues that are truly in dispute.” United

States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (citing Thomas

v. Arn, 474 U.S. 140, 147 (1985)); see Silva v. United States, 45 F.4th 1134,

1136 n.2 (10th Cir. 2022) (firm waiver rule applied where plaintiff “only offered

a single sentence about Bivens and cited authority addressing claims under 42

U.S.C. § 1983”); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992)

(firm waiver rule applied where plaintiff wholly failed to object to magistrate

judge’s recommendation). Ms. Griffith’s objection satisfied this standard.

Ms. Griffith filed a timely objection to the magistrate judge’s

recommendation. Her objection spanned 30 pages, with each section

identifying the magistrate judge’s alleged errors and advancing arguments to

support reversal. It is true the arguments in Ms. Griffith’s objection could have

been better developed. As the district court correctly observed, Ms. Griffith at

times “merely reargue[d] her positions and ask[ed] the Court to interpret the

facts and authorities differently in order to arrive at a more favorable result.”

R.140. But the firm waiver rule does not bar this appeal. We will discuss

specific preservation problems in connection with our substantive analysis.

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III

We now proceed to Ms. Griffith’s Equal Protection claim. Ms. Griffith

alleged the Jail’s Housing Policy assigns inmates to housing units “solely on

the basis of [their] genitalia.” R.35 ¶ 42. When Ms. Griffith arrived at the Jail,

Deputy Noe “classified Ms. Griffith” as a man and, pursuant to the Housing

Policy, “placed her into an all-male unit despite knowing that Ms. Griffith is a

transgender woman.” R.37 ¶ 54. Ms. Griffith further alleged the Jail’s

Commissary Policy prohibited her from obtaining female underwear or lipstick

because of her sex. R.48–50 ¶¶ 111–19. Specifically, she claims the Jail

suggested she could receive female underwear only if she “need[ed] to ‘hold

female products down there,’” an allusion to her lack of female anatomy. R.48

¶ 111. And she alleges she was denied “the ability to purchase lipstick because

she is a transgender woman,” whereas “[c]isgender women are allowed to

purchase lipstick.” R.49 ¶ 117. The Housing and Commissary Policies are sex

classifications, Ms. Griffith explained, because “discrimination against

transgender people is a form of sex discrimination.” R.50 ¶ 125; see also Aplt.

June 20, 2024, Rule 28(j) Ltr. at 1 (“[T]he County’s policy of housing

transgender women solely on the basis of their biological sex discriminates on

the basis of sex, and is subject to intermediate scrutiny.”). These policies are

thus subject to heightened scrutiny under the Equal Protection Clause. The

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district court—applying rational-basis review—dismissed the Equal

Protection claim under Rule 12(b)(6).

We review de novo a dismissal for failure to state a claim. Clinton v. Sec.

Benefit Life Ins. Co., 63 F.4th 1264, 1274 (10th Cir. 2023). When reviewing a

Rule 12(b)(6) dismissal, we “accept a complaint’s well-pleaded allegations as

true, viewing all reasonable inferences in favor of the nonmoving party, and

liberally construe the pleadings.” Lucas v. Turn Key Health Clinics, LLC, 58

F.4th 1127, 1136 (10th Cir. 2023). With these standards in mind, we consider

whether Ms. Griffith stated a plausible Equal Protection claim. As we explain,

she has.

The Housing Policy and the Commissary Policy are sex classifications.8

As alleged, the Jail uses an inmate’s biological sex to determine where they

will be housed during pre-trial detention and whether they will receive, or be

allowed to purchase, certain products from the commissary. In Fowler v. Stitt,

this court explained “in Bostock . . . . the [Supreme] Court held, ‘[I]t is

impossible to discriminate against a person for being homosexual or

transgender without discriminating against that individual based on sex.” 104

8 We describe the Jail’s policies according to the allegations in Ms. Griffith’s complaint. Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1286 n.1 (10th Cir. 2019) (“‘[A] Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true,’ and we will not consider evidence or allegations outside the four corners of the complaint . . . .” (quoting Mobley, 40 F.3d at 340)). 16 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 17

F.4th 770, 789 (10th. Cir. 2024) (quoting Bostock v. Clayton Cnty., 590 U.S.

644, 660 (2020)). Here, as in Fowler, the challenged “[p]olic[ies] intentionally

treat[] [detainees] differently because of their sex assigned at birth.” Id. at 789.

Specifically, the Jail lets only cisgender females (who were assigned a female

sex at birth based on their genitalia)—but not transgender females (who were

assigned a male sex at birth based on their genitalia)—live in female housing

and receive the products at issue. “Accordingly, [Ms. Griffith] ha[s] plausibly

alleged the [Housing and Commissary] Polic[ies] . . . discriminate[] on the basis

of sex.” Id. at 794.

The Supreme Court has made clear “all” sex-based classifications

“warrant heightened scrutiny.” United States v. Virginia (VMI), 518 U.S. 515,

555 (1996) (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994)).

And under that standard, Ms. Griffith has plausibly alleged the Housing and

Commissary Policies impermissibly perpetuate sex-based stereotypes and

harms. The Policies might ultimately survive heightened scrutiny, but that

issue is not before us. This appeal presents only the antecedent questions

relevant at the motion to dismiss stage: does a sex classification exist, and has

Ms. Griffith plausibly stated an Equal Protection claim? We answer yes to

both. While we find Ms. Griffith plausibly alleged an Equal Protection

violation, we must affirm as to all but one defendant—Sheriff Elder, sued in

17 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 18

his official capacity—because the individual defendants are entitled to

qualified immunity on this claim.

The Equal Protection Clause of the Fourteenth Amendment provides

“[n]o State shall . . . deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1. Government action

triggers the Equal Protection Clause when it “affect[s] some groups of citizens

differently than others.” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601

(2008) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)). “At a

minimum,” the Equal Protection Clause requires that any government

classification or differentiation between classes of people “must be rationally

related to a legitimate governmental purpose.” Clark v. Jeter, 486 U.S. 456,

461 (1988). This standard is termed rational-basis review, and it applies when

government action implicates neither “a fundamental right nor classif[ies]

along suspect lines.” Burlington N. R. Co. v. Ford, 504 U.S. 648, 651 (1992).

Ms. Griffith challenges government action that classifies based on sex.

Until the 1970s, the Supreme Court reviewed sex-based classifications

deferentially. See VMI, 518 U.S. at 531–32. But it is now firmly established the

Equal Protection Clause requires courts to apply “a heightened standard of

review” to government classifications “based on gender.” City of Cleburne v.

18 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 19

Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985).9 Heightened scrutiny is

warranted because sex “generally provides no sensible ground for differential

treatment,” id., and because sex-based reasoning all too often reflects

stereotypes or “overbroad generalizations about the different talents,

capacities, or preferences of males and females,” VMI, 518 U.S. at 533. Sex

classifications are thus only constitutional if they serve “important

governmental objectives” through means “substantially related to” achieving

those objectives. Id. (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718,

724 (1982)). This standard is stated unambiguously in our circuit’s precedents.

See Doe ex rel. Doe v. Rocky Mountain Classical Acad., 99 F.4th 1256, 1258

(10th Cir. 2024) (“For the last forty-seven years, the Supreme Court has

recognized only one test for determining whether a sex-based classification

violates the right to equal protection under the Fourteenth Amendment.”); Free

9 We note courts, including the Supreme Court, at times refer to sex and

gender interchangeably in the Equal Protection context. See, e.g., Miss. Univ. for Women v. Hogan, 458 U.S. 718, 728 (1982) (“In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.”); VMI, 518 U.S. at 532–34 (using “sex” and “gender” interchangeably). Absent argument from the parties, we “treat this line of cases on perhaps its narrower terms—that is, as referring to classifications based on biological sex.” Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 607 n.8 (4th Cir. 2020), as amended (Aug. 28, 2020). According to our reasoning in Fowler v. Stitt, “intend[ing] to discriminate based on transgender status . . . necessarily [entails] intend[ing] to discriminate based in part on sex,” understood as biological sex assigned at birth. 104 F.4th 770, 793 (10th Cir. 2024). 19 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 20

the Nipple-Fort Collins v. City of Fort Collins, Colo., 916 F.3d 792, 799 (10th

Cir. 2019) (“[G]ender-based classifications ‘call for a heightened standard of

review,’ . . . a standard dubbed ‘intermediate scrutiny’ . . . .” (first quoting City

of Cleburne, 473 U.S. at 440; and then quoting Clark, 486 U.S. at 461)).

Ms. Griffith separately alleged Appellees violated the Equal Protection

Clause because transgender status is a quasi-suspect class. When government

action classifies based on membership in a quasi-suspect class, heightened

scrutiny applies. City of Cleburne, 473 U.S. at 442–43. The Supreme Court has

articulated four factors to guide the protected-class analysis: (1) whether the

class has historically been subject to discrimination, Bowen v. Gilliard, 483

U.S. 587, 602 (1987); (2) whether the class has a defining characteristic that

bears a relation to its ability to perform or contribute to society, City of

Cleburne, 473 U.S. at 440–41; (3) whether the class can be defined as a discrete

group by obvious, immutable, or distinguishing characteristics, Bowen, 483

U.S. at 602; and (4) whether the class is a minority lacking political

power, id. However, we need not consider the quasi-suspect-class issue to

resolve this appeal.

Appellees moved to dismiss Ms. Griffith’s Equal Protection claim under

Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995). In Brown, a pro se

transgender plaintiff brought an Equal Protection challenge to a prison’s

20 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 21

refusal to provide hormone therapy. 63 F.3d at 968–69, 972. The plaintiff

argued he was discriminated against based on transgender status. Id. at 970–

71. The district court determined transgender people were not a protected class

and therefore analyzed the claim using rational-basis review. Id. Brown

recognized the Ninth Circuit had previously held a transgender plaintiff was

not part of a protected class. Id. at 971 (citing Holloway v. Arthur Anderson &

Co., 566 F.2d 659, 663 (9th Cir. 1977)). But the panel observed “research

concluding sexual identity may be biological” called that decision into question.

Id. Still, following the Ninth Circuit’s approach, we held “Mr. Brown is not a

member of a protected class in this case.” Id.

Relying centrally on Brown, Appellees contended the Jail’s policies are

subject to rational-basis review because “[t]ransgender is not a suspect or

quasi-suspect class.” SR.25. In response, Ms. Griffith maintained the Jail’s

Housing and Commissary policies are sex classifications, which warrant the

application of heightened scrutiny. And, separately, Ms. Griffith contended

that, notwithstanding the outcome in Brown, transgender people are members

of at least a quasi-suspect class.

The magistrate judge recommended dismissing Ms. Griffith’s Equal

Protection claim under Federal Rule of Civil Procedure 12(b)(6). Brown

compelled the conclusion, the magistrate judge reasoned, that a transgender

person is “not a member of a protected class” and thus rational-basis review

21 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 22

applied to Ms. Griffith’s Equal Protection claim.10 R.100–04. Under that

standard, the magistrate judge found Ms. Griffith had “not adequately alleged

that there is no rational reason for Defendants to house transgender women in

all-male units and not provide them with feminine products.” R.106. The

magistrate judge did not address the portion of Ms. Griffith’s Equal Protection

claim challenging the Housing and Commissary Policies as sex classifications.

Ms. Griffith objected to the magistrate judge’s recommendation. She

argued the magistrate judge failed to consider whether the Jail’s Housing and

Commissary Policies classified based on sex. Brown could not control the

disposition of the sex-classification component of her claim, Ms. Griffith

contended, because Brown never “addressed whether discrimination against

transgender individuals constitutes sex- or gender-based discrimination.”

SR.143. Separately, Ms. Griffith challenged the magistrate judge’s conclusion

that transgender people are not members of a quasi-suspect class. In reply,

10 The magistrate judge urged this court to “revisit its holding” in Brown.

R.102. And according to the magistrate judge, if he “were to apply the four- factor test used to determine whether a group constitutes a suspect or quasi- suspect class . . . transgender people easily check all the boxes.” R.103. He explained transgender people have “historically been subject to discrimination,” have a “defining characteristic that bears” no relation to their “ability to perform or contribute to society,” may be “defined as a discrete group by obvious, immutable, or distinguishing characteristics,” and “lack[] political power.” R.103. The district court agreed. 22 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 23

Appellees again argued only that Brown controlled and did not address the

sex-classification aspect of the Equal Protection claim.

The district court agreed Brown compelled the application of

rational-basis review to Ms. Griffith’s Equal Protection claim.11 The district

court did not consider Ms. Griffith’s contention that Brown was simply

irrelevant to the portion of her Equal Protection claim addressing sex

classifications.

11 When analyzing Brown’s applicability, the district court considered

whether Brown was overruled by Bostock v. Clayton County, 590 U.S. 644 (2020). R.141–42. The district court believed “Brown should be reconsidered” because, under applicable law, “transgender persons constitute a quasi-suspect class.” R.143 (quoting Grimm, 972 F.3d at 611). “Untethered by Brown,” the district court reasoned, it “would not hesitate to find that heightened scrutiny is warranted for Plaintiff’s equal protection claim because transgender-based discrimination constitutes sex-based discrimination triggering intermediate scrutiny.” R.143. But ultimately, the district court concluded Brown was dispositive, notwithstanding Bostock.

We make two observations on this line of reasoning. First, as we will explain, Brown does not control the disposition of Ms. Griffith’s Equal Protection claim. The Housing and Commissary Policies classify based on sex, and sex classifications “call for a heightened standard of review.” City of Cleburne, 473 U.S. at 440. Second, the district court correctly queried the import of Bostock, a Title VII case, on Equal Protection law. As we recently held in Fowler, 104 F.4th at 790, nothing about the Title VII context prevents “Bostock’s commonsense reasoning—based on the inextricable relationship between transgender status and sex—from applying to the initial inquiry of whether there has been discrimination on the basis of sex in the equal protection context.” And, as we will discuss, Fowler’s logic translates to this case. 23 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 24

On appeal, Ms. Griffith challenges the dismissal of her Equal Protection

claim on two grounds. First, she contends the district court did not consider

whether the Housing and Commissary Policies classify based on sex—separate

and apart from her claim that the Policies discriminate based on transgender

status. “Even if Brown dictated that Ms. Griffith is not a member of a suspect

class on the basis of her transgender status,” she contends, “the challenged

policies still trigger heightened scrutiny for the independent reason that they

are sex-based classifications.” Op. Br. at 24. Second, Ms. Griffith continues to

argue transgender status is at least a quasi-suspect class, and the district court

mistakenly held otherwise.

We agree with Ms. Griffith’s first argument, so we need not reach her

second.

As alleged in Ms. Griffith’s complaint, the Housing and Commissary

Policies classify inmates according to biological sex, regardless of gender

identity. R.40 ¶ 67 (arguing, by “hous[ing] transgender women in facilities that

do not correspond with their gender identity, El Paso County is routinely

discriminating against these women, including Ms. Griffith, based on their

sex”); R.50 ¶ 119 (“El Paso County officials’ actions in denying Ms. Griffith

access to female undergarments and lipstick was a discriminatory action

. . . .”). If an inmate has male genitalia, the inmate is assigned to the male

24 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 25

housing unit and denied access to certain commissary products. If an inmate

has female genitalia, the inmate is assigned to the female housing unit and

allowed to receive or purchase those commissary products.

This policy operates regardless of whether an inmate is transgender or

cisgender. In other words, all biological males—both cisgender men and

transgender women—are classified as “male,” with the attendant restrictions

outlined above. So too with all biological females—both cisgender women and

transgender men. As Ms. Griffith summarized in the context of the Housing

Policy, the Jail makes these classifications “on the basis of the individual’s

genitalia” alone. R.35 ¶ 42. Thus, Ms. Griffith has adequately alleged the Jail

treats transgender women differently from cisgender women, which—as we

will explain—means they treat individuals differently on the basis of sex.

Our decision in Fowler confirms the Housing and Commissary Policies

are sex classifications subject to heightened scrutiny. In Fowler, plaintiffs

challenged an Oklahoma policy “of refusing to provide transgender people with

birth certificates that match their gender identity.” 104 F.4th at 777. As the

Fowler panel summarized,

[b]efore the [birth certificate] Policy, cisgender and transgender people could obtain Oklahoma birth certificates that accurately reflected their gender identity. After the Policy, cisgender people still have access to Oklahoma birth certificates reflecting their gender identity. Transgender people, however, may no longer obtain a birth certificate reflecting their gender identity.

25 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 26

Consequently, the Policy affects transgender people but not cisgender people.

Id. at 786. Based on the “totality of relevant facts,” including that disparate

impact, id., this court then found “Plaintiffs have sufficiently alleged the Policy

was motivated by an intent to treat transgender people differently” and “have

thus adequately alleged the Policy purposefully discriminates against

transgender people,” id. at 788.

The Fowler panel next found this allegation to be sufficient to allege sex

discrimination for purposes of “equal protection claims.” Id. It adhered to the

logic of Bostock that suggests a defendant “who intends to discriminate based

on transgender status necessarily intends to discriminate based in part on

sex.” Id. at 789. To illustrate, the panel looked at the situation of Ms. Fowler,

a transgender woman who was barred from changing the sex on her birth

certificate to match her gender identity: “If her sex were different (i.e., if she

had been assigned female at birth), then the Policy would not deny her a birth

certificate that accurately reflects her identity.” Id. “So too,” the panel

continued, “for Mr. Hall and Mr. Ray,” two transgender men in analogous

situations: “had they been assigned male at birth, the Policy would not impact

them. Thus, the Policy intentionally treats Plaintiffs differently because of

their sex assigned at birth.” Id. Because of this different treatment, this court

concluded “Plaintiffs have plausibly alleged the Policy purposefully

26 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 27

discriminates on the basis of sex.” Id. at 794. The Equal Protection claim

therefore survived a motion to dismiss, id. at 797—the same procedural stage

at issue here.

Fowler’s logic—grounded in Bostock—readily applies to Ms. Griffith’s

claim. “If her sex were different (i.e., if she had been assigned female at birth),

then the [Housing and Commissary] Polic[ies] would not deny her a [housing

arrangement and purchasable products] that accurately reflect[] her identity.”

Id. at 789. So, like the plaintiffs in Fowler, Ms. Griffith “ha[s] plausibly alleged

the Polic[ies] purposefully discriminate[] on the basis of sex.” Id. at 794.12

Under these circumstances, heightened scrutiny applies.13 Free the

Nipple-Fort Collins, 916 F.3d at 801 (“Today, heightened scrutiny ‘attends “all

12 To clarify, “[a]n equal protection claim must allege that the challenged

state action purposefully discriminates based on class membership.” Fowler, 104 F.4th at 784 (emphasis added). But, “[w]hen a distinction is facially apparent, purposeful discrimination is presumed and no further examination of intent is required.” Id. The “distinction” in treatment between transgender and cisgender women—and thus between biological males and biological females—“is facially apparent” from Ms. Griffith’s allegations about the Jail’s policies at issue. 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. For that reason, discriminating between transgender and cisgender women is necessarily discriminating on the basis of sex.

13 The dissent says “the implication of [our] reasoning is that housing

inmates based on their biological sex is presumptively unconstitutional.” Dissent at 1. Not so. For one, our holding is limited to the specific housing

27 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 28

gender-based classifications.”’” (quoting Sessions v. Morales-Santana, 582 U.S.

47, 57 (2017))); see also Fowler, 104 F.4th at 794 (“[T]he Policy discriminates

based on sex, so intermediate scrutiny applies . . . .”).14 The district court was

policy in this case. Ms. Griffith does not challenge that the Jail separates people based on sex; she challenges how it does so. Because the Jail treats transgender women differently from cisgender women, as we have explained, intermediate scrutiny applies. We need not decide whether any other policies trigger heightened scrutiny. Moreover, we have not considered at this procedural stage whether the challenged policies before us withstand heightened scrutiny. That is, we do not opine on whether they are constitutional whatsoever. 14 And many of our sister circuits have similarly suggested when a policy

makes decisions by reference to biological sex—including by treating transgender and cisgender people differently—that may constitute a sex classification subject to heightened scrutiny. See Grimm, 972 F.3d at 608 (“[W]hen a ‘School District decides which bathroom a student may use based upon the sex listed on the student’s birth certificate,’ the policy necessarily rests on a sex classification.” (quoting Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017))); Hecox v. Little, 104 F.4th 1061, 1074 (9th Cir. 2024), as amended (June 14, 2024) (affirming application of heightened scrutiny to policy “categorically excluding [transgender women] from female sports”); Brandt ex rel. Brandt v. Rutledge, 47 F.4th 661, 670 (8th Cir. 2022) (“The biological sex of the minor patient is the basis on which the law distinguishes between those who may receive certain types of medical care and those who may not. The Act is therefore subject to heightened scrutiny.”). Others appear to have recognized this principle in at least some cases. See Whitaker, 858 F.3d at 1051 (like Grimm, holding when a “School District decides which bathroom a student may use based upon the sex listed on the student’s birth certificate,” such a policy “is inherently based upon a sex-classification”); Adams v. Sch. Bd., 57 F.4th 791, 801 (11th Cir. 2022) (en banc) (recognizing the same, but finding the policy at issue passed intermediate scrutiny). But see K.C. v. Individual Members of Med. Licensing Bd. of Ind., 121 F.4th 604, 617 (7th Cir. 2024) (holding “Whitaker did not hold that a state draws a sex-based classification each time it must reference sex to enforce the law,” and declining to extend Whitaker’s

28 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 29

bound to apply heightened scrutiny to analyze whether, based on the

allegations in Ms. Griffith’s complaint, the Housing and Commissary Policies

serve “important governmental objectives” through means “substantially

related to” achieving those objectives. VMI, 518 U.S. at 533 (quoting Miss.

Univ. for Women, 458 U.S. at 724).

Why, then, did the district court rely on Brown to apply rational-basis

review, asking only whether the Housing and Commissary Policies were

rationally related to any legitimate government objective? Because, as Ms.

Griffith correctly argues, it seems the district court considered only the portion

of her Equal Protection Claim alleging transgender status is itself a protected

class. Brown implicates, at most, that aspect of her claim. The district court

did not pass on the separate component challenging sex classifications, over

which Brown holds no sway.

Our decision in Brown was not about sex classifications. It addressed

whether transgender status was a protected class under the Equal Protection

Clause. When asked at oral argument to identify where in Brown we addressed

sex classifications, Appellees’ counsel directed us back to Brown’s protected

heightened-scrutiny rule to a law restricting gender-transition procedures); Eknes-Tucker v. Governor of Ala., 80 F.4th 1205, 1227–30 (11th Cir. 2023) (similarly declining to extend Adams to that context). 29 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 30

class holding. Oral Arg. at 29:25–29:49 (Appellees’ counsel stating Brown

stands for a “fairly one-line holding that says transgender people are not a

protected class under the Fourteenth Amendment”). But see Oral Arg. at

29:57–30:10 (Appellees’ counsel stating Brown did not address the plaintiff’s

Equal Protection challenge as “gender classification”).

Having concluded intermediate scrutiny applies, we need not also decide

in this case whether transgender status is itself a protected class. Burton v.

United States, 196 U.S. 283, 295 (1905) (“It is not the habit of the court to

decide questions of a constitutional nature unless absolutely necessary to a

decision of the case.”); see also People for the Ethical Treatment of Prop. Owners

v. U.S. Fish and Wildlife Serv., 852 F.3d 990, 1008 (10th Cir. 2017) (“If it is not

necessary to decide more, it is necessary not to decide more.” (quoting PDK

Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring

in part)); Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991) (“We will not

undertake to decide issues that do not affect the outcome of a dispute.”).15

15 We recently took a similar approach in Fowler, where we declined to

decide whether transgender status is a quasi-suspect class” because intermediate scrutiny applied regardless. 104 F.4th at 794. Still, Ms. Griffith urges us to “affirmatively address Brown, to avoid future confusion, as courts both within and outside this Circuit . . . have continued to construe Brown as mandating rational-basis review of Equal Protection claims by transgender plaintiffs.” Aplt. June 20, 2024, Rule 28(j) Ltr. at 1. We decline the invitation because answering that question is not necessary to resolving this appeal.

30 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 31

But there is good reason to think Brown would not control the protected- class issue. First, Brown’s holding was expressly limited to the situation and arguments then before us. Brown, 63 F.3d at 971 (“[W]e decline to make such an evaluation in this case because Mr. Brown’s allegations are too conclusory to allow proper analysis of this legal question. We therefore . . . hold that Mr. Brown is not a member of a protected class in this case.” (emphasis added)).

Second, the Brown panel explicitly “decline[d]” to decide conclusively whether transgender people belonged to a protected class because the pro se plaintiff’s “allegations [were] too conclusory to allow proper analysis of this legal question.” Id.; see Lowe v. Raemisch, 864 F.3d 1205, 1209 (10th Cir. 2017) (“If an issue is . . . reserved [in a decision of this court], the decision does not constitute a precedent to be followed.” (quoting United Food & Commercial Workers Union, Local 1564 v. Albertson’s, Inc., 207 F.3d 1193, 1199 (10th Cir. 2000))). Critical developments in legal precedent and societal understanding further reinforce that deciding whether transgender people are members of a protected class will require proper analysis in the appropriate case. See generally Obergefell v. Hodges, 576 U.S. 644, 673 (2015) (“[I]n interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”); Legal Scholar Br. at 16 (“A growing body of evidence point to a biologic underpinning of gender identity programmed from birth.”); see also Bostock, 590 U.S. at 660 (“[I]t is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex.”).

Finally, the persuasive authority that animated the rational-basis review holding in Brown was overruled by the Ninth Circuit decades ago. See Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000) (overruling Holloway because of intervening Supreme Court precedent recognizing discrimination based on a failure “to conform to socially-constructed gender expectations” is actionable sex discrimination); see also Hecox, 104 F.4th at 1079 (finding heightened scrutiny applies because plaintiff challenged classification based on transgender status and “gender identity is at least a ‘quasi-suspect class.’” (quoting Karnoski v. Trump, 926 F.3d 1180, 1200–01 (9th Cir. 2019))). Since then, at least another of our sister circuits has held transgender status is a protected class. See Grimm, 972 F.3d at 611 (“Engaging with the suspect class test, it is apparent that transgender persons constitute a quasi-suspect class.”). 31 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 32

With the level of scrutiny settled, we now look to the allegations in Ms.

Griffith’s complaint using the appropriate standard. “The heightened review

standard our precedent establishes does not make sex a proscribed

classification.” VMI, 518 U.S. at 533. But to “survive intermediate scrutiny, the

Government must provide a justification for the sex-based classification that

is ‘exceedingly persuasive,’ and that classification must serve ‘important

governmental objectives’ through means ‘substantially related to’ achieving

those objectives.” Rocky Mountain Classical Acad., 99 F.4th at 1260 (quoting

VMI, 518 U.S. at 524). Intermediate scrutiny requires Appellees, not Ms.

Griffith, to prove the classifications meet this standard. Price-Cornelison v.

Brooks, 524 F.3d 1103, 1109 (10th Cir. 2008) (explaining when intermediate

scrutiny applies “the test would be whether the government can demonstrate

that its classification serves ‘important governmental objectives’ and is

‘substantially related to achievement of those objectives.’” (quoting Concrete

Works of Colo., Inc. v. City & Cnty. of Denver, 321 F.3d 950, 959 (10th Cir.

2003) (emphasis added))).

Ms. Griffith’s complaint plausibly alleged the Housing and Commissary

policies perpetuated sex-based stereotypes and affirmatively harmed her. R.48

¶ 108 (alleging Ms. Griffith’s placement in male housing “exacerbated

symptoms of her Gender Dysphoria leading her to suffer significant emotional

32 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 33

distress, become depressed, [and] have increased ideation of self-harm”); R.50

¶ 121 (alleging the Commissary Policy “exacerbated symptoms of [Ms.

Griffith’s] Gender Dysphoria” by denying her the ability to “dress in accordance

with her gender identity”); see also R.45, 47, 48 (describing Ms. Griffith’s

extreme anxiety and ideas of self-harm attendant to her treatment at the

Jail).16 Appellees have not yet attempted to identify a government interest

justifying the Housing and Commissary policies. The absence of a developed

record on the justification for the policies makes sense at the motion-to-dismiss

stage.

We do not speculate about the ultimate outcome of Ms. Griffith’s Equal

Protection claim. But there is a “low bar for surviving a [Rule 12(b)(6)] motion

to dismiss,” Quintana v. Santa Fe Cnty. Bd. of Comm’rs, 973 F.3d 1022, 1034

(10th Cir. 2020), and “a well-pleaded complaint may proceed even if it strikes

a savvy judge that actual proof of those facts is improbable, and ‘that a recovery

is very remote and unlikely,’” Dias v. City & Cnty. of Denver, 567 F.3d 1169,

1178 (10th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

The dissent concludes “Ms. Griffith’s complaint also facially fails 16

heightened scrutiny” as to the Commissary Policy, chiefly because of an “inference . . . that panties and lipstick make her appear more feminine, which will also place her at a heightened risk of sexual victimization” given they would exacerbate “her ‘discern[a]ble feminine characteristics.’” Dissent at 24 n.14 (quoting R.51 ¶ 129). But, at this early stage, we will not assume this policy is, in fact, in Ms. Griffith’s best interests, especially given the harms she describes stemming from the Policy. 33 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 34

(2007)); see also Clinton, 63 F.4th at 1276 (“[G]ranting [a] motion to dismiss is

a harsh remedy which must be cautiously studied, not only to effectuate the

spirit of the liberal rules of pleading but also to protect the interests of justice.”

(alterations in original) (quoting Dias, 567 F.3d at 1178)).

At this early stage of the litigation, where we must accept Ms. Griffith’s

allegations as true and draw all reasonable inferences in her favor, we cannot

say the particular sex-based classifications at issue in this case serve

important government objectives through means substantially related to those

objectives. Accordingly, we conclude Ms. Griffith has stated a plausible Equal

Protection claim under 42 U.S.C. § 1983.

D

The dissent insists Ms. Griffith’s Equal Protection claim fails. The

dissent first argues Ms. Griffith is not similarly situated to those enjoying the

benefits she seeks. Our colleague then avers rational-basis review must apply

to the Jail’s policies. But, as we will explain, neither position is correct.17

According to the dissent, Ms. Griffith was not “‘similarly situated’ to

inmates receiving differential treatment.” Dissent at 5 (quoting Fogle v.

Pierson, 435 F.3d 1252, 1261 (10th Cir. 2006)). Indeed, our colleague maintains

17 The dissent concludes affirmance in full is required, and to that end,

disagrees only with the claims on which we reverse. 34 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 35

“[s]he cannot” establish she was similarly situated “because she is biologically

male and the prisoners she claims to be ‘similarly situated’ to are biologically

female.” Dissent at 5. Of course, if two people cannot be “similarly situated”

because they have a different biological sex, then no sex discrimination claim

would ever succeed. And Ms. Griffith has alleged the Jail treats her (and other

transgender women) differently than cisgender women, who are similarly

situated in all ways other than biological sex. Even the dissent seems to

recognize the Jail discriminates against her on the basis of sex. See Dissent at

6 (“The Jail’s policies classify inmates based on sex . . . .”). That is the relevant

comparator. Fowler, again, is instructive. There, under Oklahoma’s birth

certificate policy, all biological males were treated alike, as were all biological

females, because they were unable to change their birth certificates reflecting

their biological sex. See 104 F.4th at 776–78 (explaining the Policy). But what

triggered intermediate scrutiny was the fact that transgender males and

cisgender males were treated differently—as were transgender females and

cisgender females. Id. at 788–94. So too here.

Likewise, that Ms. Griffith “does not allege the Jail treats her differently

than other transgender inmates” is irrelevant. Dissent at 5; see Fowler, 104

F.4th at 791 (adopting the Supreme Court’s reasoning “that an employer

discriminates based on sex even if it is ‘equally happy to fire male and female

employees who are homosexual and transgender’” (quoting Bostock, 590 U.S.

35 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 36

at 662)). 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.

Next, the dissent says “Ms. Griffith’s Equal Protection claim

independently fails because” Turner v. Safley, 482 U.S. 78 (1987), compels

rational-basis review—a low bar the Appellees can clear easily. Dissent at 7.

In Turner, detainees challenged two prison policies on constitutional grounds:

one that limited inter-institutional correspondence with other detainees and

one that limited their ability to marry. 482 U.S. at 81–82. The Supreme Court

held, to protect prisons’ discretion in setting policies, “when a prison regulation

impinges on inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.” Id. at 89. That lax

standard, the dissent argues, applies to sex classifications and thus resolves

Ms. Griffith’s Equal Protection claim in favor of the Appellees. Dissent at 1.

But Appellees never made the argument advanced by the dissent. And

that failure of party presentation is decisive in this case because whether

Turner controls is, at best, unclear.

The Appellees’ brief mentions Turner—the case on which the dissent’s

Equal Protection analysis centrally turns, see Dissent at 7–19—exactly once,

36 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 37

see Resp. Br. at 20. And that single mention is only in the context of Ms.

Griffith’s challenges to the strip search. Compare Resp. Br. at 19–23, with

Resp. Br. at 17–19. The Appellees’ central Equal Protection theory on appeal

is that Brown—a case about whether transgender people constitute a quasi-

suspect class—mandates rational-basis review.18 See Resp. Br. at 17–19.

At most, the Appellees invoke one of the policy rationales underlying

Turner, as articulated in one of its predecessor cases. “To subject [the Jail’s

policies] to unnecessarily heightened scrutiny,” Appellees insist, “would stand

in stark opposition to well-established precedent affording deference to the

decisions of jail administrators.” Resp. Br. at 18 (citing Bell v. Wolfish, 441 U.S.

520, 547 (1979)). But that stray assertion is a far cry from reliance on Turner’s

holding, which permeates the dissent’s entire Equal Protection discussion.

Besides, the case Appellees cite is easily distinguishable from this one; it “is

not an equal protection case.” Bell, 441 U.S. at 579 (Stevens, J., dissenting).

18 The Appellees’ paramount focus on Brown is consistent with their litigation strategy below. Their motion to dismiss mentioned Turner only as to the strip search, SR.34–35, and it did not mention any cases relying on Turner’s policy rationales in the Equal Protection discussion, see SR.25–27. In their reply in support of the motion to dismiss, the Appellees mention Turner only in passing in arguing that applying strict (not intermediate) scrutiny would not fall within the clearly established law needed to overcome a qualified- immunity defense. SR.116. Not surprisingly, then, the district court never analyzed or even mentioned Turner. 37 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 38

Thus, the dissent raises and resolves for Appellees an argument they

never made—that “we remain bound to apply Turner” and affirm the dismissal

of Ms. Griffith’s Equal Protection claim under rational-basis review. Dissent

at 18. In fact, Appellees seem to have the opposite understanding: they concede,

after Fowler, “intermediate scrutiny . . . appl[ies] to their classification

decisions made with respect [to Ms. Griffith].” Aplee. July 3, 2024, Rule 28(j)

Resp. at 2.

“[O]urs is a party-directed adversarial system and we normally limit

ourselves to the arguments the parties before us choose to present.” Animal

Legal Def. Fund v. Kelly, 9 F.4th 1219, 1240–41 (10th Cir. 2021) (alteration in

original) (quoting United States v. Ackerman, 831 F.3d 1292, 1299 (10th Cir.

2016)). In this system, “we rely on the parties to frame the issues for decision

and assign to courts the role of neutral arbiter of matters the parties present.”

United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020) (quoting Greenlaw

v. United States, 554 U.S. 237, 243 (2008)). Thus, “[w]e will not make

arguments for [a party] that it did not make in its briefs.” O’Neal v. Ferguson

Constr. Co., 237 F.3d 1248, 1257 n.1 (10th Cir. 2001); see also Rodriguez v. IBP,

Inc., 243 F.3d 1221, 1227 (10th Cir. 2001) (“This court will not make arguments

for Rodriguez that he did not make himself.”). Relatedly, our “discretion to

raise and decide issues sua sponte” “should be exercised only sparingly.”

Animal Legal Def. Fund, 9 F.4th at 1241 n.20 (quoting Margheim v. Buljko,

38 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 39

855 F.3d 1077, 1088 (10th Cir. 2017)). I see no reason to deviate from these

sound principles here. Id. (“The dissent does not explain why we should act sua

sponte here, and we decline to do so.”).

We now show why the Appellees’ briefing failure is decisive in this case.

We may have had a good basis to overlook that failure if the applicable law

were certain. But it is not—as the dissent itself recognizes.

According to the dissent, Turner “compels our application of rational

basis review to sex-based classifications in prisons and jails.” Dissent at 7. That

is because Turner dictates “when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably related to

legitimate penological interests.” Dissent at 8 (quoting 482 U.S. at 89). Because

the Supreme Court “has only narrowed Turner once, when it held that racial

classifications in prison are subject to strict scrutiny,” the dissent reasons,

Turner must apply to Ms. Griffith’s Equal Protection claim based on sex.

Dissent at 8 (citing Johnson v. California, 543 U.S. 499, 510 (2005)).

But the dissent itself shows why this conclusion is far from certain. Our

colleague appropriately “acknowledge[s] some doctrinal inconsistency

between” the holding in Washington v. Harper, 494 U.S. 210, 224 (1990), “that

‘Turner applies to all circumstances in which the needs of prison

administration implicate constitutional rights,’ and the Court’s holding in

39 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 40

VMI.” Dissent at 18; see VMI, 518 U.S. at 555 (clarifying “all” sex-based

classifications “warrant heightened scrutiny” (quoting J.E.B., 511 U.S. at

136)). Given those incompatible holdings, the dissent explains, “one principle

must cede to another,” and “the best reading of the Court’s precedent is that

Turner applies to a prison’s sex-based classifications when those classifications

do not result in distinctions in funding or programming available to members

of each sex.” Dissent at 18.

That Turner controls is not so obvious that we should overlook the

parties’ contrary understanding. After all, as Ms. Griffith has observed,

“deference [to prison and jail policies] is not limitless,” and the Court has

carved out at least some “prison and jail policies that discriminate on the basis

of protected classes” from Turner’s ambit. Reply Br. at 8 (citing Johnson, 543

U.S. at 502, 506–07, 512). Specifically, the Johnson Court held, despite

Turner’s general command, “strict scrutiny” applies “to all racial

classifications,” including those stemming from jail policies. 543 U.S. at 506,

512. Of course, as the dissent points out, race “is different” from sex. Dissent

at 14 n.8. But it may not be “different” in the relevant respects. Instead,

Johnson’s logic may extend to at least some sex classifications:

 As with race, the Court has made clear that “all” sex classifications trigger heightened scrutiny, see VMI, 518 U.S. at 555 (quoting J.E.B., 511 U.S. at 136);

40 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 41

 Some sex “classifications ‘threaten to stigmatize individuals by reason of their membership in a [sex],’” Johnson, 543 U.S. at 507 (quoting Shaw v. Reno, 509 U.S. 630, 643 (1993));

 “The right not to be discriminated against based on one’s [sex]” may not be “a right that need necessarily be compromised for the sake of proper prison administration,” id. at 510; and

 “In the prison context, when the government’s power is at its apex,” “searching judicial review of [sex] classifications” may be “necessary to guard against invidious discrimination,” id. at 511.19

To reiterate, these arguments may not carry the day. And we recognize

the discretion generally afforded to corrections officials managing the day-to-

day operations of prisons and jails. See Rhodes v. Chapman, 452 U.S. 337, 351

n.16 (1981) (“[T]he problems of prisons in America are complex and intractable,

and, more to the point, they are not readily susceptible of resolution by decree.

Most require expertise, comprehensive planning, and the commitment of

resources, all of which are peculiarly within the province of the legislative and

executive branches of government.” (quoting Procunier v. Martinez, 416 U.S.

19 The dissent argues Johnson clearly does not extend to sex because it

“does not mention VMI,” and “the Court would have mentioned [that VMI overrode Turner] in creating another, ostensibly similar, carve out [for race] in Johnson.” Dissent at 13 n.8. Put differently, “[i]t would be odd for the Court to acknowledge the Turner ‘carve[] out[s]’”—including racial discrimination and cruel and unusual punishment—“while ignoring a massive one” created by VMI. Dissent at 14 n.9 (second and third alterations in original) (quoting Johnson, 543 U.S. at 546). We see Johnson’s silence on VMI as much less odd. Unlike racial discrimination and cruel and unusual punishment, the Court has never considered whether Turner or VMI controls the level of scrutiny that applies to sex discrimination. 41 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 42

396, 404–05 (1974))); Pitts v. Thornburgh, 866 F.2d 1450, 1455 (D.C. Cir. 1989)

(“Heightened scrutiny does not eliminate appreciation of both the difficulties

confronting prison administrators and the considerable limits of judicial

competency, informed by basic principles of separation of powers.”). The point

is simply that, as the dissent acknowledges, there is tension between VMI’s

categorical holding that all sex discrimination triggers heightened scrutiny

and Washington’s categorical holding that all prison policies (except those for

which a carve-out applies) undergo rational-basis scrutiny, particularly when

Johnson recognized heightened scrutiny applied for the Equal Protection

category most like sex. 543 U.S. at 506, 512 (finding the Supreme Court’s

standard of “apply[ing] strict scrutiny to all racial classifications” trumps

Turner’s contrary standard).

And this tension is not obviously resolvable in favor of applying Turner

to foreclose heightened scrutiny in this case. Indeed, “[s]ome commentators

have noted that,” “[s]ince the Johnson decision,” “intermediate scrutiny might

now be the required standard for” detainees’ sex-based Equal Protection

claims. Grace DiLaura, Comment, “Not Susceptible to the Logic of Turner”:

Johnson v. California and the Future of Gender Equal Protection Claims from

Prisons, 60 UCLA L. Rev. 506, 510 (2012); id. at 510 n.14 (citing such

commentators); id. at 510 (“By creating a complete separation between prison

deference doctrine and equal protection doctrine in the racial discrimination

42 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 43

context, Johnson renders prison deference wholly inappropriate in the gender

context as well.”). And courts are split on whether intermediate scrutiny

applies to such claims.20 Id. at 517–18.

In sum, the conclusion that Turner governs Ms. Griffith’s Equal

Protection claim is far from certain.21 No party has argued for this reading—

and given all parties apparently have a contrary reading, we decline to apply

it sua sponte, especially in light of Turner’s unclear limits and its admitted

tension with VMI.22 Thus, intermediate scrutiny still applies.

20 According to the dissent, this court has already decided what side of

this split it is on: “we applied Turner to an Equal Protection claim asserting sex-based discrimination in prison two years after VMI.” Dissent at 12 (citing Barney v. Pulsipher, 143 F.3d 1299, 1313 n.17 (10th Cir. 1998)). But the footnote in Barney is unhelpful. While Barney was decided two years after VMI, it also comes seven years before Johnson, the case that provides a basis (alongside VMI) for locating sex-based Equal Protection claims outside Turner’s ambit. 21 And, even if that were not true, at this procedural stage, we would be

less convinced than the dissent that Ms. Griffith’s claim must fail. Turner itself demonstrates its standard is still somewhat searching, as the Court struck down a restriction on marriage as “an exaggerated response to . . . security objectives,” largely because “[t]here [we]re obvious, easy alternatives to the [marriage] regulation that accommodate the right to marry while imposing a de minimis burden on the pursuit of security objectives.” Turner v. Safley, 482 U.S. 78, 97–98 (1987). Without a district court ruling or any briefing on the matter, and bound by the complaint’s allegations at this early procedural stage, we cannot conclude, as the dissent does, the same is not true here. See Dissent at 19–24. 22 The dissent’s particular arguments for why Turner trumps VMI in this

case do not change our view. “First,” the dissent observes, “Turner remains

43 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 44

E

Based on the foregoing, we find Ms. Griffith has stated a plausible claim

that the Housing and Commissary Policies violate the Equal Protection

Clause. We now explain what our conclusion means for each defendant. Recall,

on this claim, Ms. Griffith sued all defendants, including seven people in their

individual capacities and Sheriff Elder also in his official capacity.23

good law.” Dissent at 12. True, but so does VMI. And Turner’s reach, not its overall validity, is the relevant question.

The dissent continues: “Second, in Washington v. Harper the Court ‘made quite clear that the standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights.’” Dissent at 14 (emphasis added by dissent) (quoting 494 U.S. 210, 224 (1990)). But VMI was similarly categorical in applying “heightened scrutiny” to “all gender-based classifications.” 518 U.S. 515, 555 (1996) (emphasis added) (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994)). The dissent avers (without citation), “To fall outside Turner’s ambit, the Court must explicitly recognize a carveout.” Dissent at 14. The same could be said for falling outside VMI’s ambit. And the Court has never ruled one way or another regarding whether sex classifications are, in relevant part, like the racial classifications that Johnson carved out of Turner. While “[w]e cannot infer from Johnson or VMI that sex-based housing classifications warrant a categorical Turner carve out,” Dissent at 15, we also would not infer the opposite, as the dissent does, at least without adversarial briefing.

“Third,” the dissent says, “the policies here do not lend themselves to VMI’s logic because they do not favor one sex over the other.” Dissent at 15. We cannot agree. For the reasons outlined above—particularly under Fowler’s logic—that is just what these policies do. They deny certain housing assignments and commissary products based on genitalia alone. 23 We address defendant El Paso County below.

44 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 45

We start with all defendants sued in their individual capacities. These

defendants “raised the qualified immunity defense to Griffith’s constitutional

claims” and maintain it on appeal. Resp. Br. at 28. To overcome that defense,

Ms. Griffith must show “(1) the officers’ alleged conduct violated a

constitutional right, and (2) it was clearly established at the time of the

violation, such that ‘every reasonable official would have understood,’ that

such conduct constituted a violation of that right.” Perea v. Baca, 817 F.3d

1198, 1202 (10th Cir. 2016) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)).

Appellees argue both prongs of the defense. They first maintain “Griffith

did not establish that a constitutional violation occurred.” Resp. Br. at 29. For

the reasons above, as to the Equal Protection claim, that is wrong.

They next allege Ms. Griffith could not “show a clearly established right.”

Resp. Br. at 29. On that, we are persuaded. Our analysis of the Equal

Protection claim applies this court’s decision in Fowler, a 2024 case. All actions

pertinent to this appeal occurred well before that year. Appellees correctly

observe, “Before Fowler, neither the Supreme Court nor this Court had

imported Bostock’s Title VII reasoning to an equal protection claim brought

under the Fourteenth Amendment.” Aplee. July 3, 2024, Rule 28(j) Resp. at 2.

While Appellees seem to agree intermediate scrutiny applies after Fowler, they

are also correct that “they had not been given fair notice that intermediate

45 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 46

scrutiny would apply to their classification decisions made with respect” to Ms.

Griffith. Aplee. July 3, 2024, Rule 28(j) Resp. at 2.

We next turn to Sheriff Elder in his official capacity. The thrust of this

claim is that the unconstitutional Jail policies “are set by Defendant . . . Elder.”

R.52 ¶ 135. Ms. Griffith alleges he “discriminated against Plaintiff and other

transgender women by adopting and applying these customs policies, and

practices.” R.52 ¶ 135. Claims pled against Sheriff Elder in his official capacity

under 42 U.S.C. § 1983 are treated as municipal liability claims. Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 690 n.55 (1978) (“[O]fficial-capacity suits . . .

represent only another way of pleading an action against an entity of which an

officer is an agent . . . .”). Qualified immunity “is available only in suits against

officials sued in their personal capacities, not in suits against governmental

entities or officials sued in their official capacities.” Starkey ex. rel. A.B. v.

Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1263 n.4 (10th Cir. 2009). So that

defense is no bar to liability here.

The district court adopted the magistrate judge’s recommendation to

dismiss Ms. Griffith’s official-capacity suit on one ground: she “has not alleged

facts demonstrating that she suffered a constitutional injury.” R.117; see also

R.140, 144 (adopting that recommended conclusion). That premise is incorrect.

We therefore reverse the district court’s rejection of Ms. Griffith’s Equal

46 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 47

Protection claim against Sheriff Elder in his official capacity. In so doing, we

do not opine on the ultimate merits of that claim. We conclude only that the

district court’s reason for dismissal was erroneous.

In conclusion, then, Ms. Griffith has adequately alleged the Housing and

Commissary Policies violated her Equal Protection rights. We therefore

reverse on that claim against Sheriff Elder in his official capacity. We must,

however, affirm the dismissal of this claim as to all Appellees sued in their

individual capacities because the law was not “clearly established at the time

of the violation.” Perea, 817 F.3d at 1202.

IV

Ms. Griffith next appeals the district court’s dismissal of her Fourteenth

Amendment conditions of confinement claim. According to Ms. Griffith, the

Jail assigned “all detained transgender individuals to housing units based on

their genitalia as the default or sole criterion, without any individualized

assessment of the individual’s safety or gender identity,” which posed an

excessive risk to Ms. Griffith’s health and safety, in violation of the Fourteenth

Amendment. R.53 ¶ 145. Each Appellee knew Ms. Griffith to be a “transgender

woman and that housing her in an all-male unit subjected her to a risk of

sexual harassment, sexual assault, and extreme emotional distress from being

treated as a man given her Gender Dysphoria.” R.53 ¶ 146. Although this claim

is pled against each Appellee, Ms. Griffith clarified at oral argument she

47 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 48

appeals only the dismissal of her conditions of confinement claim against

Deputies Noe and Ford and Sheriff Elder.24 We thus focus only on these three

defendants.

Appellees moved to dismiss Ms. Griffith’s conditions of confinement

claim under Rule 12(b)(6). They argued the Eighth Amendment’s deliberate

indifference framework applied, meaning “an official is only liable if he ‘knows

of and disregards an excessive risk to inmate health and safety; the official

must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.’”

SR.28 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). According to

Appellees, Ms. Griffith failed to plausibly allege deliberate indifference under

that standard by Deputy Noe or Deputy Ford. SR.29. The magistrate judge

agreed, concluding the facts alleged did not show either Deputy Noe or Deputy

Ford knew Ms. Griffith “would be at risk of substantial harm if placed in the

all-male facility [and] that they disregarded that risk.” R.108.

In objecting to the recommendation, Ms. Griffith made general

arguments about being subjected to “repeated cross-gender pat-down searches”

24 Ms. Griffith does not suggest any personal mistreatment by Sheriff

Elder, so we only consider this claim pled against him in his official capacity. 48 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 49

in the male housing unit. SR.150. Ms. Griffith did not challenge the magistrate

judge’s ruling with respect to Deputies Noe and Ford. Appellees pointed this

out in their response, contending Ms. Griffith failed to explain how Deputies

Noe and Ford “had specific knowledge of a risk to [Ms. Griffith] and ignored

it.” SR.172. The district court adopted the magistrate judge’s recommendation

without further analysis.

Ms. Griffith now urges reversal, but we need not reach the merits of her

appellate challenge as to Deputies Noe and Ford. We agree with Appellees that

she has failed to properly preserve an argument that those two deputies

violated the Fourteenth Amendment. It is well settled that a plaintiff must

prove each defendant personally participated in a constitutional violation. See,

e.g., Pahls v. Thomas, 718 F.3d 1210, 1231 (10th Cir. 2013) (“Liability under

§ 1983 . . . requires personal involvement.”). The magistrate judge concluded

Ms. Griffith did not allege “either [the] subjective or objective elements of

deliberate indifference” with respect to Deputies Noe and Ford. R.108. Ms.

Griffith failed to challenge this ruling in her objection.

Applying firm waiver principles, Ms. Griffith’s objection to the dismissal

of her conditions of confinement claim was not “sufficiently specific to focus the

district court’s attention on the factual and legal issues that are truly in

dispute.” 2121 E. 30th St., 73 F.3d at 1060. It was not until her opening brief

on appeal that Ms. Griffith explained how Deputies Noe and Ford were

49 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 50

involved in her unconstitutional conditions of confinement. This argument

comes too late. Davis v. Clifford, 825 F.3d 1131, 1137 n.3 (10th Cir. 2016)

(finding appellant waived arguments not made in objection to the magistrate

judge’s recommendation).

We also affirm as to Sheriff Elder in his official capacity. Recall, Ms.

Griffith alleged the unconstitutional Jail policies “are set by Defendant . . .

Elder.” R.52 ¶ 135. In her complaint, Ms. Griffith claims Sheriff Elder

orchestrated the policies that led to her placement in male housing. R.37 ¶ 54;

R.38 ¶ 57. She further alleged these policies caused extensive mistreatment—

for instance, threatening her health and safety, exposing her to risks of sexual

assault and harassment, and exacerbating her gender dysphoria. See R.37

¶ 54; R.38 ¶ 57; R.53 ¶¶ 145–46.

The magistrate judge recommended dismissing this claim against

Sheriff Elder for one reason: because Ms. Griffith “has not alleged facts

demonstrating that she suffered a constitutional injury.” R.117. According to

the magistrate judge, Ms. Griffith could not proceed against Sheriff Elder in

his official capacity because she had not adequately alleged any of the named

individual defendants—including Deputies Noe, Ford, and others—personally

caused unconstitutional conditions of confinement. R.108–11. The district

50 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 51

court accepted the magistrate judge’s recommendation on this issue without

elaboration. R.140.

Unlike with Deputies Noe and Ford, Ms. Griffith’s objection to the

dismissal of her conditions-of-confinement claim against Sheriff Elder is

properly before us. She objected to the magistrate judge’s recommendation to

dismiss that claim and has maintained that position on appeal. See SR.137

(arguing promulgating or maintaining policies that cause constitutional rights

violations suffices to impose liability on Sheriff Elder); Op. Br. at 50 (similar);

Reply Br. at 21–24 (similar).

Ms. Griffith’s claim is Sheriff Elder’s policies caused unconstitutional

conditions of confinement through a number of channels, none of which

necessarily depends on particular subordinates’ actions. See, e.g., R.53 ¶¶ 145–

46 (focusing on risks to “health and safety” and “a risk of sexual [harassment],

sexual assault, and extreme emotional distress,” without naming any specific

perpetrators); SR.137 (contending Sheriff Elder’s policies “caused the violation

of Plaintiff’s constitutional rights in numerous ways”—again not naming a

particular perpetrator). The law permits this kind of Monell claim. See

Quintana, 973 F.3d at 1033 (acknowledging our circuit precedent provides that

“municipal liability under Monell may exist without individual liability”);

Crowson, 983 F.3d at 1188 (reaffirming this principle); id. at 1184 (explaining,

for municipal liability, a plaintiff “must allege facts showing: (1) an official

51 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 52

policy or custom, (2) causation, and (3) deliberate indifference” (quoting

Quintana, 973 F.3d at 1034)). We thus agree with Ms. Griffith that her claim

against Sheriff Elder in his official capacity does not necessarily depend on

unconstitutional conduct by a subordinate named in the same suit, as the

magistrate judge seemed to conclude.

Still, affirmance is required because Ms. Griffith has not plausibly

alleged deliberate indifference by Sheriff Elder or stated facts to support that

his policy was the legally relevant cause of the harassment, assaults, and other

mistreatment—carried out by others—underlying this claim. See Bd. of Cnty.

Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 405 (1997) (“Where a

plaintiff claims that the municipality has not directly inflicted an injury, . . .

rigorous standards of culpability and causation must be applied . . . .”); Barney

v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998) (applying these rigorous

standards when “the policy at issue is lawful on its face and the municipality

therefore has not directly inflicted the injury through its own actions”). Under

these circumstances, we affirm the district court’s dismissal of Ms. Griffith’s

Fourteenth Amendment conditions of confinement claim. See Fed. Trade

Comm’n v. Elite IT Partners, Inc., 91 F.4th 1042, 1045 (10th Cir. 2024) (“[W]e

can affirm on any ground adequately supported by the record.”).

52 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 53

V

Ms. Griffith also appeals the dismissal of her Fourth and Fourteenth

Amendment claims challenging the allegedly unlawful strip search conducted

at intake. Recall, Ms. Griffith asked Deputy Elliss, a female, to “conduct the

search because Ms. Griffith is a transgender woman.” R.41–42 ¶¶ 74, 76.

Deputy Elliss “refused and cited El Paso County’s [Search] policy.” R.42 ¶ 74.

After Deputy Elliss searched Ms. Griffith’s breasts, she left the room. Deputy

Mustapick, alone in the room with Ms. Griffith, proceeded to “search Ms.

Griffith’s genitals.” R.42 ¶ 78. Ms. Griffith claims the strip search was

conducted pursuant to the Jail’s “official policy” of allowing “male deputies to

search transgender women without any supervision.” R.57 ¶ 172.

In the district court, Appellees raised a qualified immunity defense to

Ms. Griffith’s Fourth and Fourteenth Amendment claims. Appellees further

maintained Commander Gillespie could not be liable because Ms. Griffith

failed to allege his personal participation in the strip search. The magistrate

judge agreed with Appellees and recommended dismissal. The district court

adopted the magistrate judge’s reasoning without further analysis.

On appeal, Ms. Griffith insists the strip search was unconstitutional, and

the district court erroneously concluded otherwise. Ms. Griffith maintains the

cross-gender nature of the search violated the Fourth and Fourteenth

Amendments. She further contends Deputy Mustapick conducted an abusive

53 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 54

search in violation of the Fourth Amendment. Reviewing de novo, we agree

with Ms. Griffith—but only in part.

Commander Gillespie and Deputies Elliss and Mustapick are entitled to

qualified immunity, as the district court properly determined. But, unlike the

district court, we conclude Ms. Griffith has plausibly alleged Deputy

Mustapick committed a constitutional violation by conducting a cross-gender

strip search. For this reason, we must reinstate the Fourth and Fourteenth

Amendment cross-gender search claims against Sheriff Elder in his official

capacity. Those claims had previously been dismissed for lack of a

constitutional violation by a subordinate. Finally, we reverse the grant of

qualified immunity to Deputy Mustapick on Ms. Griffith’s Fourth Amendment

abusive search claim.

Ms. Griffith’s Fourth Amendment claim implicates her right to be free

from unreasonable searches. Chapman v. Nichols, 989 F.2d 393, 394 (10th Cir.

1993) (plaintiffs “brought this suit . . . contending [the sheriff] violated their

Fourth Amendment rights by promulgating the policy under which they were

[strip] searched.”). To analyze a Fourth Amendment claim based on an

allegedly unlawful search, we “balance[] the need for the particular search

against the invasion of personal rights that the search entails.” Bell, 441 U.S.

at 559. “[T]he greater the intrusion, the greater must be the reason for

54 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 55

conducting a search.” Levoy v. Mills, 788 F.2d 1437, 1439 (10th Cir. 1986)

(quoting Blackburn v. Snow, 771 F.2d 556, 565 (1st Cir. 1985)). In conducting

this analysis, we “consider the scope of the particular intrusion, the manner in

which it is conducted, the justification for initiating it, and the place in which

it is conducted.” Id. (quoting Bell, 441 U.S. at 559).

Ms. Griffith’s Fourteenth Amendment claim implicates her right to

personal privacy. Colbruno v. Kessler, 928 F.3d 1155, 1163–64 (10th Cir. 2019)

(analyzing a pretrial detainee’s Fourteenth Amendment claim to vindicate his

right to privacy after officers forced him to walk down a hospital hallway

naked). Although “inmates’ right to privacy must yield to the penal

institution’s need to maintain security, it does not vanish altogether.” Id. at

1164 (quoting Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982) (per

curiam)). The Constitution protects a prisoner from being forced to

unnecessarily expose their naked body which, as we have held, “is a severe

invasion of personal privacy.” Id. And a plaintiff can state a Fourteenth

Amendment claim by alleging facts supporting the inference that “the exposure

of [her] body was ‘not rationally related to a legitimate governmental objective

or [was] excessive in relation to that purpose.’” Id. at 1164 (finding a plaintiff

plausibly alleged a Fourteenth Amendment violation by pleading facts from

which the court could infer officers walked plaintiff down a hospital hallway

55 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 56

naked without a “vital urgency” justifying their actions (quoting Kingsley v.

Hendrickson, 576 U.S. 389, 398–99 (2015))).

Whether analyzed under the Fourth or Fourteenth Amendments, we

must balance the intrusiveness of the search against the government’s reason

for conducting it.25 We therefore evaluate Ms. Griffith’s Fourth and Fourteenth

Amendment claims together.

To overcome the qualified immunity defense, Ms. Griffith must show “(1)

the officers’ alleged conduct violated a constitutional right, and (2) it was

clearly established at the time of the violation, such that ‘every reasonable

official would have understood,’ that such conduct constituted a violation of

that right.” Perea, 817 F.3d at 1202 (quoting Mullenix, 577 U.S. at 11).26 At the

Rule 12(b)(6) stage, we conduct the qualified immunity inquiry bound by the

facts alleged in the operative complaint. See Keith v. Koerner, 707 F.3d 1185,

1188 (10th Cir. 2013).

25 The magistrate judge recognized as much when analyzing Ms. Griffith’s claims, and no party has identified a meaningful difference between these legal standards for purposes of this case.

26 Again, qualified immunity “is available only in suits against officials

sued in their personal capacities, not in suits against governmental entities or officials sued in their official capacities.” Starkey ex. rel. A.B. v. Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1263 n.4 (10th Cir. 2009). It therefore cannot protect Sheriff Elder from claims pled against him in his official capacity. 56 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 57

With these legal principles in mind, we proceed to analyze Ms. Griffith’s

appellate challenges. We begin with the claims against Commander Gillespie

and Deputy Elliss and then discuss Ms. Griffith’s arguments as to Deputy

Mustapick and Sheriff Elder.

Ms. Griffith has given us no reason to reverse the dismissal of her

Fourteenth Amendment claim against Commander Gillespie. Ms. Griffith does

not even mention Commander Gillespie in her appellate briefing when

discussing the Fourteenth Amendment search claim. State Farm Fire & Cas.

Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (“[A]ppellant failed to raise

this issue in his opening brief and, hence, has waived the point.”). Ms. Griffith

has the burden of establishing Commander Gillespie had “personal

involvement in the alleged constitutional violation.” Fogarty v. Gallegos, 523

F.3d 1147, 1162 (10th Cir. 2008) (quoting Foote v. Spiegel, 118 F.3d 1416, 1423

(10th Cir. 1997)). There are no allegations in the complaint that plausibly

suggest Commander Gillespie participated in the strip search. Ms. Griffith

alleged only “Gillespie’s decision to house [her] in an all-male unit subjected

her to have her privacy constantly invaded.” R.57 ¶ 174. But this allegation is

not about the strip search. And, like the district court, we find it conclusory.

Erikson v. Pawnee Cnty. Bd. of Cnty. Comm’rs, 263 F.3d 1151, 1154 (10th Cir.

57 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 58

2001) (explaining a “conclusory allegation is insufficient to survive [a] motion[]

to dismiss”).

As to Deputy Ellis, Ms. Griffith likewise failed to develop an argument

for reversal. In a footnote in her opening brief, Ms. Griffith contends Deputy

“Elliss is liable for her failure to intervene” because she “left Ms. Griffith alone

with Defendant Mustapick after Ms. Griffith begged for a woman to search her

instead, and in doing so failed to prevent an unsupervised and wholly

unnecessary cross-gender strip search.” Op. Br. at 40–41 n.13. Ms. Griffith

cites Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008), but

she does not explain how that case, which is about excessive force, supports

her appellate position. “Arguments raised in a perfunctory manner, such as in

a footnote, are waived.” In re C.W. Min. Co., 740 F.3d 548, 564 (10th Cir. 2014)

(quoting United States v. Berry, 717 F.3d 823, 834 n.7 (10th Cir. 2013)).

We thus affirm the dismissal of Ms. Griffith’s Fourth and Fourteenth

Amendment claims against Deputy Elliss and Fourteenth Amendment claim

against Commander Gillespie.

We next address Ms. Griffith’s Fourth and Fourteenth Amendment

claims against Deputy Mustapick based on the strip search. Ms. Griffith

challenges two distinct aspects of the strip search: who conducted it and the

way it was conducted. First, Ms. Griffith contends having a male deputy

58 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 59

perform the strip search violated the Fourth and Fourteenth Amendments.

Second, and separately, Ms. Griffith maintains Deputy Mustapick conducted

the search in an abusive manner, in violation of the Fourth Amendment. We

consider each argument in turn.

We begin with Ms. Griffith’s claim concerning the cross-gender nature of

the strip search. Ms. Griffith alleged Deputy Mustapick’s participation in the

search was “objectively unreasonable in light of the circumstances” and

“violated [Ms. Griffith’s] right to be secure in her bodily integrity, a liberty

right protected by . . . the Fourteenth Amendment.” R 55–56. The magistrate

judge concluded Ms. Griffith could not overcome qualified immunity because

she failed to plausibly allege a constitutional violation under clearly

established law. R.115 (Fourth Amendment); see also R.110 (Fourteenth

Amendment). The district court adopted the magistrate judge’s

recommendation.

On appeal, Ms. Griffith concedes the Jail could subject her to a strip

search before she entered general population. She contends only that assigning

a male deputy to perform that strip search had no “relationship to legitimate

penological concerns” and thus violated the Constitution. Op. Br. at 40; see also

R.55 ¶ 159 (“[T]here was no basis for [Deputy] Mustapick to perform a visual

body-cavity search” of Ms. Griffith.). As we explain, the district court’s

59 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 60

qualified-immunity ruling must be affirmed. Though we conclude Ms. Griffith

has plausibly alleged a constitutional violation, the law was not clearly

established that Deputy Mustapick’s participation as alleged violated the

Constitution.

Our point of departure is straightforward: “it is axiomatic that a strip

search represents a serious intrusion upon personal rights.” Shroff v.

Spellman, 604 F.3d 1179, 1191 (10th Cir. 2010) (quoting Chapman, 989 F.2d

at 395)). Strip searches are “demeaning, dehumanizing, undignified,

humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying

degradation and submission.” Levoy, 788 F.2d at 1439 (quoting Blackburn, 771

F.2d at 564)). And there are serious privacy concerns when prison officials

view, or search, undressed inmates of the opposite gender. See Hayes v.

Marriott, 70 F.3d 1144, 1146 (10th Cir. 1995) (discussing privacy concerns

stemming from a body cavity search of inmates in view of members of the

opposite sex); Cumbey, 684 F.2d at 714 (finding plausible constitutional claim

when plaintiff alleged naked male inmates were subjected to “a certain amount

of viewing” by female officers); Shroff, 604 F.3d at 1191 (affirming denial of

summary judgment to officer who required female in police custody to pump

breast milk in view of another officer because he “failed to present any

justification for requiring [plaintiff] to expose her breasts in the presence of

60 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 61

another person”); see also Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir.

1994) (“[W]hile all forced observations or inspections of the naked body

implicate a privacy concern, it is generally considered a greater invasion to

have one’s naked body viewed by a member of the opposite sex.”); Byrd v.

Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d 1135, 1146 (9th Cir. 2011) (“This litany

of cases over the last thirty years has a recurring theme: cross-gender strip

searches in the absence of an emergency violate an inmate’s right under the

Fourth Amendment to be free from unreasonable searches.”). As the district

court correctly recognized, strip searches are invasive, and cross-gender

searches are “universally frowned upon . . . in the absence of an emergency.”

R.114–15 (citing Byrd, 629 F.3d at 1143).

Evaluating the constitutionality of the search in this context requires

“balancing the need for the particular search against the invasion of personal

rights that the search entails.” Bell, 441 U.S. at 559; see also Blackmon v.

Sutton, 734 F.3d 1237, 1241 (10th Cir. 2013) (explaining Fourteenth

Amendment violation occurs when “the restriction in question bears no

reasonable relationship to any legitimate governmental objective.”). The

Fourth Amendment analysis of a strip search is “fact-specific, ‘measured in

objective terms by examining the totality of the circumstances.’” Nelson v.

McMullen, 207 F.3d 1202, 1206 (10th Cir. 2000) (quoting Ohio v. Robinette, 519

U.S. 33, 39 (1996)).

61 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 62

Ms. Griffith alleges there was no “legitimate penological purpose” for

Deputy Mustapick to be involved in the strip search. R.43 ¶ 80. At this

procedural stage, we agree. According to the allegations in Ms. Griffith’s

complaint, Deputy Mustapick knew Ms. Griffith is a transgender woman and

that she lived with gender dysphoria. He also knew Ms. Griffith asked to be

searched by a female deputy. And the complaint alleges a female deputy was

available to conduct the search. Indeed, Deputy Elliss had just helped with the

search. Nothing in the complaint suggests there was an emergency or other

justification requiring Deputy Mustapick to participate. Ms. Griffith thus has

plausibly alleged facts from which we can infer, in this case, that a male

deputy’s participation in the strip search of a transgender female detainee had

no “reasonable relationship” to a “legitimate governmental objective.”

Colbruno, 928 F.3d at 1163; see also Turner, 482 U.S. at 89–91 (“[T]here must

be a ‘valid, rational connection’ between the prison regulation and the

legitimate governmental interest put forward to justify it.” (quoting Block v.

Rutherford, 468 U.S. 576, 586 (1984))).

Resisting this conclusion, Appellees contend there is a strong interest in

preventing “weapons or contraband” from entering jails. Resp. Br. at 21. We do

not doubt this is so. But Appellees do not explain what this interest in

contraband prevention has to with having a male deputy strip search Ms.

Griffith—particularly when a female deputy was available. As the Supreme

62 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 63

Court has explained, “a court may consider [alternative options] as evidence

that the [prison] regulation does not satisfy the reasonable relationship

standard.” Turner, 482 U.S. at 91.27 Subjecting Ms. Griffith to a strip search

by a male officer is, at least on the face of the complaint, plausibly unrelated

to the asserted governmental interest of preventing contraband in the Jail.

Farmer v. Perrill, 288 F.3d 1254, 1260 (10th Cir. 2002) (“We [have] held that a

strip search of a motorist detained for a minor traffic offense . . . violated his

constitutional rights because there was neither a sufficient security

justification for the search, nor any justification for conducting the search in a

public area.”); Byrd, 629 F.3d at 1143 (“[A]lthough valid reasons to search the

inmates existed generally, there was no justification given for conducting a

cross-gender strip search.”); Williams v. City of Cleveland, 771 F.3d 945, 954

(6th Cir. 2014) (finding plaintiff plausibly pled a Fourth Amendment challenge

to a strip search by alleging obvious less-invasive alternatives to the jail’s

procedure). We thus conclude Ms. Griffith plausibly alleged Deputy Mustapick

violated her Fourth and Fourteenth Amendment rights by conducting a cross-

gender strip search.28

27This requirement has teeth: Turner struck down a restriction on marriage largely on this ground. Turner, 482 U.S. at 97–98. 28 The dissent insists Ms. Griffith “offers no factual allegations which,

taken as true, demonstrate that the Jail’s same-sex strip search policy is

63 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 64

Finally, Ms. Griffith alleged Sheriff Elder violated the Constitution by

enforcing a policy “requir[ing] . . . male deputies to search transgender women

without any supervision.” R.57 ¶ 172. The district court dismissed all claims

against Sheriff Elder for failure to allege a constitutional violation by a

subordinate. Because we conclude Ms. Griffith plausibly alleged a

constitutional violation by Deputy Mustapick, we must reverse the dismissal

of the Fourth and Fourteenth Amendment claims against Sheriff Elder in his

official capacity relating to the cross-gender strip search and remand for

further proceedings. Cox v. Glanz, 800 F.3d 1231, 1256 (10th Cir. 2015)

(explaining we “generally will allow ‘a suit [against a county] to proceed when

immunity [based on a lack of clearly established law] shields the individual

defendants” (quoting Lynch v. Barrett, 703 F.3d 1153, 1164 (10th Cir. 2013))).

unrelated to its legitimate interests in prison security and employee welfare” under Turner. Dissent at 25. We disagree. Her complaint clearly alleged Deputy Elliss defended having Deputy Mustapick conduct part of the strip search only “because she was ‘still a male’ in El Paso County’s ‘system,’” without referencing any other reasons for the cross-gender search. R.41 ¶ 74.

On appeal, Ms. Griffith continues the same thread: “there was no justification—let alone an emergency—for having a male guard conduct her strip search and see her naked body” when “a female guard, Defendant Elliss, was initially in the room and available to do the search—indeed, she was the one who searched Ms. Griffith’s breasts.” Op. Br. at 38. If a female deputy was available to conduct part of the search, then it is reasonable to infer she would have also been able to conduct the rest of the search, as Ms. Griffith’s complaint suggests. Recall, the existence of “obvious, easy alternatives . . . that accommodate the” right asserted is key to the constitutional inquiry. Turner, 482 U.S. at 98. 64 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 65

As above, we take no position on the merits of Ms. Griffith’s Fourth and

Fourteenth Amendment claims against Sheriff Elder. We say no more than the

district court’s stated reasons for dismissal were erroneous.

We now consider the second prong of the familiar qualified immunity

analysis. According to the district court, it was not “‘sufficiently clear’ that

every ‘reasonable official would understand’” at the time of Ms. Griffith’s strip

search that a male deputy could not strip search a transgender female

detainee. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). We agree with the district court.

The relevant question is whether “the law put officials on fair notice that

the described conduct was unconstitutional.” Casey v. City of Fed. Heights, 509

F.3d 1278, 1284 (10th Cir. 2007) (quoting Gomes v. Wood, 451 F.3d 1122, 1134

(10th Cir. 2006)). True, our law is clear that cross-gender strip searches must

be motivated by some penological interest. See, e.g., Shroff, 604 F.3d at 1191

(finding constitutional violation because officer viewed detainee’s breasts

without “any justification”). But as Appellees persuasively point out, we have

not previously applied this principle to searches of transgender inmates. See

Hayes, 70 F.3d at 1146–47 (male inmate challenging female guards viewing

male inmates naked); Cumbey, 684 F.2d at 714 (male inmate challenging

female guards viewing the strip search of a male detainee). Only one case,

65 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 66

Farmer v. Perrill, involved a transgender inmate. 288 F.3d at 1257. But the

Farmer plaintiff challenged the overall justification for strip searches

conducted in view of other inmates. Id. Unlike here, the constitutional

challenge in Farmer did not concern whether the person who searched the

transgender detainee was male or female. These cases therefore could not have

provided guidance to a reasonable officer in Deputy Mustapick’s position.

Ms. Griffith insists no factually analogous case is required to show the

law was clearly established. According to Ms. Griffith, “common sense tells us

conducting a cross-gender strip search of a psychologically vulnerable

transgender detainee, over vociferous protestations . . . violates the

constitutional protections against punishment and unreasonable searches.”

Op. Br. at 45. Ms. Griffith relies on Colbruno, where we recognized an obvious

violation of the Fourteenth Amendment when a pretrial detainee was paraded

naked through a hospital. Colbruno acknowledged we “can occasionally rely on

the general proposition that it would be ‘clear to a reasonable officer that his

conduct was unlawful in the situation he confronted . . . even though existing

precedent does not address similar circumstances.’” Colbruno, 928 F.3d at 1165

(quoting District of Columbia v. Wesby, 583 U.S. 48, 64 (2018)).

Ms. Griffith is correct that “[e]ven when no precedent involves facts

‘materially similar’ to ours, [a] right can be clearly established if a precedent

applies with ‘obvious clarity.’” Lowe v. Raemisch, 864 F.3d 1205, 1210 (10th

66 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 67

Cir. 2017); see also Taylor v. Riojas, 592 U.S. 7, 9 (2020) (discussing same). But

that standard is not met on the facts before us. Accordingly, in the absence of

clearly established law, we affirm the grant of qualified immunity to Deputy

Mustapick on the Fourth and Fourteenth Amendment claims concerning the

cross-gender nature of the strip search.

Ms. Griffith also contends Deputy Mustapick violated the Fourth

Amendment by conducting the strip search in an abusive manner. The

magistrate judge acknowledged Deputy Mustapick searched Ms. Griffith in a

“sickening” and “reprehensible” way and made “abhorrent statements that

accompanied the search.” R.110, 115. But the magistrate judge nevertheless

concluded Ms. Griffith could not overcome either prong of the qualified

immunity defense. According to the magistrate judge, Deputy Mustapick’s

conduct, “reprehensible as it [was],” did not “rise to [the] level” of a

constitutional violation. R.115. Even if Ms. Griffith could state a constitutional

claim, the magistrate judge determined “it would necessarily fail based on the

‘clearly established’ prong of qualified immunity.” R.116. The district court

adopted the magistrate judge’s reasoning without elaboration.

On appeal, Ms. Griffith maintains there “is no plausible justification for

conducting a search in this [abusive] manner—rather, it appears calculated to

inflict psychological pain on a vulnerable individual,” in violation of the Fourth

67 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 68

Amendment. Op. Br. at 40. She contends the Supreme Court’s decision in Bell,

holding an abusive search “cannot be condoned,” clearly established that

Deputy Mustapick’s “harassing, humiliating, [and] abusive search” violated

the Constitution. Op. Br. at 43. Considering the totality of the circumstances

as alleged by Ms. Griffith, we agree.

We start with the constitutional prong of Deputy Mustapick’s qualified

immunity defense. In determining whether a search is constitutional under the

Fourth Amendment, we must consider the “manner in which [it] is conducted.”

Bell, 441 U.S. at 559. And it is well established a “search [conducted] in an

abusive fashion . . . . cannot be condoned.” Id. at 560; see also Seltzer-Bey v.

Delo, 66 F.3d 961, 962–63 (8th Cir. 1995) (finding plaintiff plausibly alleged a

Fourth Amendment violation where officer “made sexual comments about

[inmate’s] penis and buttocks” during one strip search and “rubbed [his]

buttocks with a nightstick and asked him whether it reminded him of

something” during another). For that reason, “not all strip search procedures

will be reasonable; some could be excessive, vindictive, harassing, or unrelated

to any legitimate penological interest.” Michenfelder v. Sumner, 860 F.2d 328,

332 (9th Cir. 1988); see also Joseph v. U.S. Fed. Bureau of Prisons, 232 F.3d

901 (10th Cir. 2000) (unpublished table decision) (recognizing “the sexual

harassment or abuse of an inmate by a corrections officer can never serve a

legitimate penological purpose and may well result in severe physical and

68 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 69

psychological harm” (quoting Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir.

1997))).29

Ms. Griffith has alleged facts from which we can reasonably infer Deputy

Mustapick conducted the strip search in an abusive fashion. Consider what

Deputy Mustapick knew at the time of the strip search: Ms. Griffith is a legally

blind transgender woman living with gender dysphoria; her gender dysphoria

caused her anxiety and could lead to self-harm; and she made repeated

requests for him to leave the room and asked for a female deputy to conduct

the strip search. Taken together, it is reasonable to infer Deputy Mustapick

knew Ms. Griffith was particularly vulnerable to searches by male deputies.

It is against this backdrop that we consider the reasonableness of Deputy

Mustapick’s actions. After Deputy Elliss left the room, Deputy Mustapick

ordered Ms. Griffith to undress and stand bent over with her hands against

the wall. With Ms. Griffith naked, in an exposed position, and alone in a closed

room with only a male deputy, Deputy Mustapick proceeded to grab his penis

and make sexually explicit and threatening comments. The complaint alleges

he “was extremely aggressive while searching Ms. Griffith’s genitals.” R.42

¶ 78. He then warned Ms. Griffith not to tell anyone “about what he did and

29 Joseph was an unpublished Eighth Amendment case, but we rely on it

for its commonsense pronouncement that sexual harassment serves no legitimate penological purpose. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”). 69 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 70

said to her” during the strip search—otherwise, “he would make sure that she

was brutalized by the guards.” R.42 ¶ 79. We conclude Ms. Griffith has stated

a plausible violation of the Fourth Amendment. Our conclusion is compelled

by “the scope of the particular intrusion, the manner in which it is conducted,

the justification for initiating it, and the place in which it is conducted.” Levoy,

788 F.2d at 1439 (quoting Bell, 441 U.S. at 559).

Appellees—appropriately—do not attempt to justify Deputy Mustapick’s

behavior. Instead, they contend “verbal statements made during a search are

insufficient to establish a constitutional violation.” Resp. Br. at 21. Appellees

principally rely on Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir. 1995),

and Hyberg v. Enslow, 801 F. App’x 647, 650 (10th Cir. 2020). Neither case

supports affirmance.

In Adkins, the inmate plaintiff challenged sexual harassment by a prison

guard. 59 F.3d at 1036. She did so, however, under the Eighth Amendment

deliberate indifference framework. Id. at 1036–37. And we specifically

observed the plaintiff did not challenge “an unreasonable search or seizure

under the Fourth Amendment or [that] she was denied substantive due process

under the Fourteenth Amendment.” Id. at 1037 n.4. These are precisely the

claims advanced by Ms. Griffith. Adkins does not move the needle for

Appellees.

70 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 71

Hyberg is neither precedential nor persuasive. The plaintiff there worked

at a factory inside the jail and was strip searched before and after going to

work. Hyberg, 801 F. App’x at 648. He challenged two searches, contending

they were unreasonable under the Fourth Amendment. Id. But Hyberg did not

involve an allegedly abusive search. There, we explicitly refused to credit the

plaintiff’s conclusory allegation that a search was conducted “in a very

demeaning and derogatory way.” Id. at 650.

Accepting Ms. Griffith’s allegations as true and drawing all inferences in

her favor, she has “nudged” her abusive search claim “across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570. At this early stage of the

litigation, no more is required.

We turn next to the clearly established law prong. We may not “define

clearly established law at too high a level of generality.” City of Tahlequah,

Okla. v. Bond, 595 U.S. 9, 12 (2021). “[E]xisting law must have placed the

constitutionality of the officer’s conduct ‘beyond debate.’” Wesby, 583 U.S. at 63

(quoting al-Kidd, 563 U.S. at 741). We therefore typically require a plaintiff to

identify “an on-point Supreme Court or published Tenth Circuit decision;

alternatively, ‘the clearly established weight of authority from other courts

must have found the law to be as [she] maintains.’” A.M. v. Holmes, 830 F.3d

1123, 1135 (10th Cir. 2016) (quoting Quinn v. Young, 780 F.3d 998, 1005 (10th

Cir. 2015)).

71 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 72

The district court faulted Ms. Griffith for failing to identify a prior case

involving the abusive search of a transgender detainee. Ms. Griffith urges

reversal, relying “on the general proposition that it would be ‘clear to a

reasonable officer that his conduct was unlawful in the situation he confronted

. . . even though existing precedent does not address similar circumstances.’”

Op. Br. at 44 (quoting Colbruno, 928 F.3d at 1165). While this principle did not

carry the day on Ms. Griffith’s cross-gender search challenge, here, it is

dispositive.

A “general constitutional rule already identified in the decisional law”

can overcome qualified immunity when it “appl[ies] with obvious clarity to the

specific conduct in question.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quoting

United States v. Lanier, 520 U.S. 259, 271 (1997)); see also Taylor, 592 U.S. at

9 (applying Hope to conclude “any reasonable officer should have realized [the

plaintiff’s] conditions of confinement offended the Constitution”); Rivas-

Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (recognizing “in an obvious case,

[general constitutional] standards can ‘clearly establish’ the answer, even

without a body of relevant case law” (quoting Brosseau v. Haugen, 543 U.S.

194, 198 (2004))).30 A “general rule can serve as clearly established law when

30 Taylor involved an inmate housed in “deplorably unsanitary” conditions, including in a cell covered “nearly floor to ceiling” in feces. Taylor, 592 U.S. at 8. Taylor is an extreme case, but the situation before Deputy Mustapick was no less obvious. 72 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 73

it states ‘the contours of [a] constitutional transgression’ in a ‘well[-]defined’ or

‘well-marked’ manner without leaving a ‘vaguely-defined legal border.’”

Ashaheed v. Currington, 7 F.4th 1236, 1246 (10th Cir. 2021) (quoting Janny v.

Gamez, 8 F.4th 883, 918 (10th Cir. 2021)).

Bell established abusive searches “cannot be condoned” under the Fourth

Amendment and thus defined the constitutional boundaries for Deputy

Mustapick. 441 U.S. at 560. The constitutional prohibition against abusive

searches obviously does not depend on the inmate’s sex or gender identity. A

reasonable officer in Deputy Mustapick’s position did not need a body of case

law involving abusive searches of transgender inmates to put him on notice

that his search of Ms. Griffith was unlawful. See Taylor, 592 U.S. at 9. A

contrary conclusion means “the words of the Constitution become little more

than good advice.” Trop v. Dulles, 356 U.S. 86 (1958) (plurality opinion). We

thus have no trouble concluding this is the “rare” case where “the unlawfulness

of the officer’s conduct is sufficiently clear even though existing precedent does

not address” precisely these circumstances, Wesby, 583 U.S. at 64, and the

“very action in question has [not] previously been held unlawful.” Hope, 536

U.S. at 741 (quoting Anderson, 483 U.S. at 640).31 We reverse the grant of

31 The dissent believes “Ms. Griffith has not identified caselaw clearly

establishing that deplorable language makes an otherwise permissible search unconstitutional.” Dissent at 26. Deputy Mustapick’s language was deplorable

73 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 74

qualified immunity to Deputy Mustapick on Ms. Griffith’s Fourth Amendment

abusive-search claim and remand for further proceedings.

VI

Finally, we turn to Ms. Griffith’s challenge to the dismissal of her

disability discrimination claims under the ADA and Rehabilitation Act. These

claims were pled only against one defendant—El Paso County. Ms. Griffith

alleged El Paso County failed to reasonably accommodate her gender

dysphoria in violation of both statutes.

In the district court, Appellees moved to dismiss all claims against El

Paso County—including the ADA and Rehabilitation Act claims—under Rules

12(b)(1) and 12(b)(6). Under Rule 12(b)(1), Appellees contended the district

court lacked subject matter jurisdiction over all claims against El Paso County

because Ms. Griffith failed to follow Colo. Rev. Stat. 30-11-105. That statute

requires, in “all suits or proceedings by or against a county, the name in which

the county shall sue or be sued shall be, ‘The board of county commissioners of

the county of . . . .’” Colo. Rev. Stat. 30-11-105. Ms. Griffith named only “El

largely because, as Ms. Griffith plausibly alleges, it was part of an abusive search—“conducted in a harassing manner intended to humiliate and inflict psychological pain.” Op. Br. at 39 (quoting Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003)). And it bears emphasizing the allegations do not only concern Deputy Mustapick’s language; he was also allegedly “extremely aggressive while searching Ms. Griffith’s genitals.” R.42 ¶ 78. The totality of well-pled facts thus plainly constitute abuse. And the Court has been clear that “abuse cannot be condoned.” Bell v. Wolfish, 441 U.S. 520, 560 (1979). 74 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 75

Paso County” and not the board of county commissioners. Under Rule 12(b)(6),

Appellees maintained Ms. Griffith failed to state plausible ADA and

Rehabilitation Act claims because, among other things, gender dysphoria is not

a “disability” under the statutes. The district court granted the motion under

Rule 12(b)(1), thereby dismissing El Paso County from the case. The district

court then proceeded to rule on the Rule 12(b)(6) arguments, concluding Ms.

Griffith failed to allege plausibly that El Paso County violated the ADA and

Rehabilitation Act claims.

On appeal, Ms. Griffith challenges only the Rule 12(b)(6) dismissal. But

before we can address her arguments, we must decide what effect, if any, the

district court’s unchallenged Rule 12(b)(1) ruling has on this appeal. The

parties do not address this issue, but we must reach it because it implicates

the scope of our authority. If a district court concludes it lacks subject matter

jurisdiction but proceeds to the merits, we have jurisdiction only to correct “the

error of the [district] court in entertaining the suit.” Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 95 (1998) (quoting Arizonans for Off. Eng. v. Arizona,

520 U.S. 43, 73 (1997)). As relevant here, the district court held it lacked

subject matter jurisdiction over the ADA and Rehabilitation Act claims. The

district court nevertheless reached the merits of those claims. Ms. Griffith has

not challenged the district court’s Rule 12(b)(1) dismissal on appeal. Under

75 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 76

these circumstances, we must conclude the district court erroneously reached

the merits of claims already dismissed for lack of subject matter jurisdiction.

We first explain why, on this record, we must conclude the dismissal of

the ADA and Rehabilitation Act claims was for lack of subject matter

jurisdiction. We start with Appellees’ motion to dismiss, which proceeded

under Rule 12(b)(1)—the rule used to challenge a federal court’s “lack of subject

matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Appellees moved to dismiss all

claims against El Paso County—including the ADA and Rehabilitation Act

claims—because Ms. Griffith “fail[ed] to properly name El Paso County as a

party” under Colo. Rev. Stat. 30-11-105. SR.22. Appellees emphasized that

failure deprived the court of “jurisdiction over” El Paso County, and thus, “the

claims asserted against El Paso County must be dismissed under Fed. R. Civ.

P. 12(b)(1).” SR.23.

The district court agreed Ms. Griffith failed to comply with Colo. Rev.

Stat. 30-11-105 and accordingly granted the Rule 12(b)(1) motion to dismiss.

The district court set out the familiar Rule 12(b)(1) standard, and the district

court’s order used the word “jurisdiction” only in connection with Ms. Griffith’s

failure to comply with Colo. Rev. Stat § 30-11-105. The district court explained

all claims against El Paso County—including the ADA and Rehabilitation Act

claims—“can be dismissed due to this jurisdictional defect alone.” R.96.

76 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 77

On appeal, the district court’s conclusion that it lacked subject matter

jurisdiction over the ADA and Rehabilitation Act claims is unchallenged. Ms.

Griffith stated in her opening brief that she does not appeal “the district court’s

ruling that the County was not properly named.” Op. Br. at 6 n.2. She says no

more about the Rule 12(b)(1) dismissal. She proceeds to challenge only the Rule

12(b)(6) ruling that she failed to state plausible ADA and Rehabilitation Act

claims against El Paso County. But Ms. Griffith has never argued the district

court had subject matter jurisdiction to reach the Rule 12(b)(6) arguments in

the first place.32 She thus has waived the issue.

32 It is not at all clear that Colo. Rev. Stat. 30-11-105 is about subject

matter jurisdiction. In Gonzales v. Martinez, we explained Colo. Rev. Stat. 30-11-105 “provides the exclusive method by which jurisdiction over a county can be obtained,” an “action attempted to be brought under any other designation is a nullity, and no valid judgment can enter in such a case.” 403 F.3d 1179, 1182 n.7 (10th Cir. 2005) (quoting Calahan v. Jefferson County, 163 Colo. 212 (1967)). We described the failure to follow the statute as a “jurisdictional flaw.” Id. But we have never explained what “jurisdictional” means in this context.

“Jurisdiction . . . is a word of many, too many, meanings.” Wilkins v. United States, 598 U.S. 152, 156–57 (2023) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006)). Ms. Griffith presumably could have argued it was incorrect for Appellees and the district court to understand the failure to comply with Colo. Rev. Stat. 30-11-105 as a problem of subject matter jurisdiction. But she did not do so, and it is not our role to make those arguments for her. Rodriguez v. IBP, Inc., 243 F.3d 1221, 1227 (10th Cir. 2001) (“This court will not make arguments for Rodriguez that he did not make himself.”); O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1257 (10th Cir. 2001)

77 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 78

Subject matter jurisdiction refers to federal “courts’ statutory or

constitutional power to adjudicate the case.” Steel Co., 523 U.S. at 89.

Challenges to the district court’s improper exercise of “subject-matter

jurisdiction may be raised by the defendant ‘at any point in the litigation,’ and

courts must consider them sua sponte.” Fort Bend Cnty., Tex. v. Davis, 587 U.S.

541, 548 (2019) (quoting Gonzalez v. Thaler, 565 U.S. 134, 141 (2012)). But the

same is not true of challenges to a district court’s conclusion that it lacked

subject matter jurisdiction. “We have no duty under the general waiver rule”

to consider “untimely raised legal theories which may support . . . [subject

matter] jurisdiction.” Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir.

1992). Said differently, a “federal court is not obliged ‘to conjure up possible

theories’ to support subject-matter jurisdiction” when a plaintiff has failed to

do so. Atlas Biologicals, Inc. v. Kutrubes, 50 F.4th 1307, 1322 (10th Cir. 2022)

(quoting Raley v. Hyundai Motor Co., Ltd., 642 F.3d 1271, 1275 (10th Cir.

2011)). In circumstances where, as here, a district court concludes it lacks

subject matter jurisdiction and an appellant does not argue otherwise on

appeal, we enforce traditional waiver principles. See United States ex rel.

Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1518 n.2 (10th Cir. 1996)

(acknowledging a potential argument for subject matter jurisdiction but

(declining to decide whether precedent was distinguishable when no party suggested it was). 78 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 79

finding it waived and refusing to consider it because plaintiff did not make it),

superseded by statute on other grounds, False Claims Act, Pub. L. N. 111-203,

124 Stat. 1376, as recognized in United States ex rel. Reed v. KeyPoint Gov’t

Sols., 923 F.3d 729, 764–65 (10th Cir. 2019).

In this unusual posture, we must conclude the district court had no

authority to consider the ADA and Rehabilitation Act claims under Rule

12(b)(6). A district court must have subject matter jurisdiction “before it can

rule on the merits” of a plaintiff’s claims. Trackwell v. U.S. Gov’t, 472 F.3d

1242, 1245 (10th Cir. 2007); Steel Co., 523 U.S. at 88–89 (a challenge to subject

matter jurisdiction under Rule 12(b)(1) is “considered a threshold question that

must be resolved in respondent’s favor before proceeding to the merits.”); see

also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure

Civ. § 1350 (4th ed. 2024) (“[W]hen the motion [to dismiss] is based on more

than one ground, the cases are legion stating that the district court should

consider the Rule 12(b)(1) challenge first because if it must dismiss the

complaint for lack of subject matter jurisdiction, the accompanying defenses

and objections become moot and do not need to be determined by the judge.”).

The district court dismissed the ADA and Rehabilitation Act claims for

lack of subject matter jurisdiction under Rule 12(b)(1). At that point, the

district court was without authority to resolve those claims under Rule

79 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 80

12(b)(6). “Without jurisdiction the court cannot proceed at all” because

“[j]urisdiction is power to declare the law, and when it ceases to exist, the only

function remaining to the court is that of announcing the fact and dismissing

the cause.” Steel Co., 523 U.S. at 94 (quoting Ex parte McCardle, 4 U.S. 506,

514 (1868)).

Because the district court concluded it lacked subject matter jurisdiction

over the ADA and Rehabilitation Act claims, and because Ms. Griffith does not

challenge that conclusion on appeal, we must vacate the district court’s Rule

12(b)(6) ruling with respect to those claims. Rio Grande Silvery Minnow v.

Bureau of Reclamation, 601 F.3d 1096, 1128 & n.19 (10th Cir. 2010) (“Because

the district court was without subject-matter jurisdiction, and thus without the

power to enter [the] judgment, that judgment must be vacated.”).33

33 We recognize this may be an unsatisfying result for the parties. But

our disposition is compelled by the legal principles we have discussed and applied to the record as developed in the district court. At oral argument, Ms. Griffith could not explain how we had authority to reach the merits of her ADA and Rehabilitation Act claims where, as here, the district court dismissed those claims for lack of subject matter jurisdiction. Ms. Griffith suggested we should “fix the error” she has alleged and remand “back to the district court” where the parties “can work out . . . who the defendants are for” the ADA and Rehabilitation Act claims. Oral Argument at 2:50–3:09. While it might be more expedient for the parties if we took Ms. Griffith’s proposed course of action, “[s]ubject-matter jurisdiction . . . does not entail an assessment of convenience.” Wachovia Bank v. Schmidt, 546 U.S. 303, 305 (2006). And El Paso County— the only defendant against whom the ADA and Rehabilitation Act claims were pled—is no longer in the case. We have no power to affect the rights of the litigants not before us. Princeton Univ. v. Schmid, 455 U.S. 100, 102 (1982)

80 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 81

VII

For the reasons described above, we REVERSE the dismissal of Ms.

Griffith’s Fourteenth Amendment Equal Protection claim only as to Sheriff

Elder in his official capacity. Though we ultimately AFFIRM the grant of

qualified immunity on Ms. Griffith’s Fourth and Fourteenth Amendment

cross-gender search claims against Commander Gillespie and Deputies Elliss

and Mustapick, we conclude Ms. Griffith has plausibly alleged a constitutional

violation by Deputy Mustapick. For this reason, we must REVERSE the

dismissal of Ms. Griffith’s related Fourth and Fourteenth Amendment claims

against Sheriff Elder in his official capacity. We REVERSE the dismissal of

Ms. Griffith’s Fourth Amendment abusive search claim against Deputy

Mustapick. Finally, because the district court dismissed the ADA and

Rehabilitation Act claims against El Paso County without prejudice under

Rule 12(b)(1), and because that ruling is not challenged by Ms. Griffith on

appeal, we VACATE the district court’s order dismissing those claims under

Rule 12(b)(6). We otherwise AFFIRM.

(explaining federal courts “do not sit to decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties before us”). 81 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 82

23-1135, Griffith v. El Paso County EBEL, Circuit Judge, concurring:

I concur.

This case presents some novel and difficult equal protection issues which require

us ultimately to balance the parties’ conflicting interests. As is often the case, the

balancing decisions will be affected by how the parties’ interests are defined and what

level of scrutiny is applied to the government’s policy being challenged.

Here, our task is made more difficult because of some arguably divergent language

in several of the United States Supreme Court decisions and in the decisions of several of

the lower courts, including the Tenth Circuit. Further, gender dysphoria is a relatively

new diagnosis and it contains inherent ambiguities in its application.

To make matters worse, this case comes to us at the motion to dismiss stage, where

we do not have a developed factual record.

With regard to appellant Griffith’s equal protection arguments, my decision to

concur in the majority ruling is influenced by the ambiguity of the current law and the

high burden that must be met by a defendant who moves to dismiss at the pleading stage.

Ultimately, I have determined that the plaintiff has the right, and justice will best be

served by allowing her claims to continue at this pleading stage against the potentially

liable parties.

The Fourth Amendment, ADA, and Rehabilitation Act claims are, by contrast,

clearer for me, and I concur with the majority opinion on those claims as well. Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 83

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.

I concur in the majority decision.

2 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 84

23-1135, Griffith v. El Paso County

TYMKOVICH, Circuit Judge, dissenting.

The El Paso County Jail classifies and houses inmates based on their biological

sex. Darlene Griffith is a biological male who identifies as a transgender woman. The

Jail’s classification resulted in three consequences Ms. Griffith alleges are

unconstitutional.

First, the Jail assigned Ms. Griffith to the male housing unit when she wanted to

be housed with females. Second, male inmates are allegedly not permitted to wear

female underwear or buy lipstick from the commissary—both things she wanted to do.

Third, inmates are strip searched and patted down by guards of the same biological sex,

and she wanted to be searched solely by female guards.

Ms. Griffith alleges these policies violate the Equal Protection Clause and the

Fourth Amendment of the Constitution. The majority, largely based on its determination

that “all” sex-based classifications trigger heightened scrutiny, concludes her claims are

plausible. Though it avoids saying as much, the implication of the majority’s reasoning

is that housing inmates based on their biological sex is presumptively unconstitutional.

I disagree. In my view, binding Supreme Court precedent prescribes rational basis

review to these sorts of correctional policies. In Turner v. Safley, the Supreme Court held

“when a prison regulation impinges on inmates’ constitutional rights, the regulation is

valid if it is reasonably related to legitimate penological interests.” 482 U.S. 78, 89

(1987). Properly applied, Turner forecloses Ms. Griffith’s Equal Protection claim and

her Fourth Amendment claim directed at the Jail’s allegedly unconstitutional search Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 85

policy. Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 566 U.S. 318, 339

(2012) (holding Turner applies to “[t]he Fourth and Fourteenth Amendments.”). I would

also dismiss her Fourth Amendment claim directed at Deputy Mustapick because she has

failed to identify law clearly establishing that abusive language can transform an

otherwise constitutional search into an unconstitutional one.

Because I would affirm dismissal of Ms. Griffith’s complaint in its entirety, I

respectfully dissent.

A. Background

The core of Ms. Griffith’s complaint is that “[u]nder the Equal Protection Clause

of the Fourteenth Amendment, discrimination against transgender people is a form of sex

discrimination that is presumptively unconstitutional and subject to heightened scrutiny.”

Complaint ¶ 125. That allegation requires us to engage with terms like “sex,” “gender,”

“male,” “female,” “man,” and “woman.” Central to Ms. Griffith’s complaint is an

alleged distinction between “sex” and “gender” since she concedes the Jail properly

engages in some form of sex-segregated housing. Complaint ¶ 134 (Defendants “had no

penological basis to deny Plaintiff a safe and appropriate place in a female facility.”)

(emphasis added).

While Ms. Griffith defines “sex”—“e.g., being male or female”—she does so

without citation, and avoids defining gender. Complaint ¶ 21. In other places, however,

she defines terms by reference to the American Psychiatric Association’s Diagnostic and

Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5). Complaint ¶ 22 (citing

2 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 86

the DSM-5’s definition of “Gender Dysphoria”). Throughout this dissent, I use these

terms as they are defined in the DSM-5.1

Historically, “gender” was used as a synonym, or at a least cultural proxy, for

“sex.” Indeed, as the majority observes, courts’ Equal Protection decisions—including

the Supreme Court’s—use the terms “sex” and “gender” interchangeably, although the

majority understands the terms to refer to biological sex.2 Op. at 19 n.9. According to

the DSM-5, these terms now have different meanings. The DSM-5 defines “sex” as the

“[b]iological indication of male and female (understood in context of reproductive

capacity), such as sex chromosomes, gonads, sex hormones, and nonambiguous internal

and external genitalia.” DSM-5 at 829. “Gender identity,” in contrast, is a “category of

social identity that refers to an individual’s identification as male, female or,

occasionally, some category other than male or female.” Id. As I understand and use the

terms, sex is a biological fact springing from chromosomal variations resulting in somatic

differences (male or female) while gender identity reflects lived norms (man or woman).

This distinction is significant and ultimately fatal to Ms. Griffith’s claims. That is

because she functionally (and appropriately in my view) cedes to the constitutionality of

sex-based segregation in jail—she merely alleges that she was on the wrong side of it.

See, e.g., Complaint ¶ 134 (alleging the Jail “had no penological basis to deny Plaintiff a

1 The majority takes issue with my use of these definitions. Op. at 5 n.2 (“The dissent proffers his own explanations of those terms, rooted in sources other than the complaint.”). I understand that the meaning of these words has been obscured and is subject to dispute, but the ordinary meaning of a word is not an allegation we are bound by. 2 Like the majority, I read these cases as referring to biological sex. Op. at 19 n.9. 3 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 87

safe and appropriate placement in a female facility, based on her sex, gender identity,

characteristics, risk factors, and her history of sexual victimization in male facilities.”)

(emphasis added). But of course, Ms. Griffith could not claim constitutional entitlement

to a “safe and appropriate placement in a female facility” if the Jail couldn’t create

“female facilities” in the first place.

In my view, the “segregation of inmates by sex is unquestionably constitutional.”

Women Prisoners of D.C. Dep’t of Corr. v. D.C., 93 F.3d 910, 926 (D.C. Cir. 1996). If

detention facilities can constitutionally classify inmates based on their biological sex—an

assumption baked into Ms. Griffith’s complaint and one I agree is constitutional—then

the question is not whether jails can classify based on sex, but how much deference

federal courts should afford their classification methodology. Binding precedent obliges

our deference to these sorts of policies in correctional institutions.

B. Equal Protection

Ms. Griffith alleges the Jail’s sex-based classification policies violate the

Constitution’s Equal Protection Clause. U.S. Const. amend. XIV, § 1 (“No State

shall . . . deny to any person within its jurisdiction the equal protection of the laws.”). I

disagree.

“The Equal Protection Clause does not forbid classifications. It simply keeps

governmental decisionmakers from treating differently persons who are in all relevant

respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (emphasis added). See also

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (the Equal

4 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 88

Protection clause is “essentially a direction that all persons similarly situated should be

treated alike.”).

Put differently, the Equal Protection Clause requires states to “treat like cases

alike.” Vacco v. Quill, 521 U.S. 793, 799 (1997). So long as that happens, state policies

are “presumed to be valid” and will be upheld if they bear a rational relationship to a

legitimate state interest. City of Cleburne, 473 U.S. at 440.

In my view, Ms. Griffith’s Equal Protection claims fail both because she has not

shown she is similarity situated to others who were treated differently and, independently,

her claims fail rational basis review.

1. Similarly Situated

To state a plausible Equal Protection claim, Ms. Griffith must first show that she

was “similarly situated” to inmates receiving differential treatment. Fogle v. Pierson,

435 F.3d 1252, 1261 (10th Cir. 2006) (considering whether inmate housed in

administrative segregation after escaping was similarly situated to other inmates). See

also Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998) (“In order to assert a

viable equal protection claim, plaintiffs must first make a threshold showing that they

were treated differently from others who were similarly situated to them.”). She cannot

do so because she is biologically male and the prisoners she claims to be “similarly

situated” to are biologically female.

Her complaint, moreover, does not allege the Jail treats her differently than other

transgender inmates. Fogle, 435 F.3d at 1261 (“In order to succeed on his first equal

protection claim, Fogle would have to show that he was ‘similarly situated’ to those

5 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 89

general population inmates and that the difference in treatment was not ‘reasonably

related to legitimate penological interests.’”) (citing Barney, 143 F.3d at 1312 and

quoting Turner, 482 U.S. at 89). See also Keevan v. Smith, 100 F.3d 644, 648 (8th Cir.

1996) (“Treatment of dissimilarly situated persons in a dissimilar manner by the

government does not violate the Equal Protection Clause.”). The Jail’s policies classify

inmates based on sex, not gender identity. According to the logic of Ms. Griffith’s

complaint, the “similarly situated” inmates are biologically female prisoners, whom the

Jail housed separately and allowed certain personal items. But Ms. Griffith does not

allege she is biologically female. Rather, she alleges she is biologically male (her sex)

while psychologically she identifies as a woman (her “female gender identity”). See, e.g.,

Complaint ¶ 2 (“Ms. Griffith is a transgender woman” who “lives in accordance with her

female gender identity”). Nor does she suggest that she believes her biological sex to be

female—just her gender identity. The consequence is that she has not shown that she is

“in all relevant respects alike” to biologically female prisoners. Nordlinger, 505 U.S. at

10. She is different in the relevant respect—her biological sex.

The way in which Ms. Griffith claims to be similarly situated (her gender identity)

is not the relevant distinction the Jail permissibly draws (her biological sex).3

3 Ms. Griffith’s complaint concedes as a necessary predicate that jails can segregate based on some criteria, just not solely based on sex. It isn’t clear from her complaint, however, why classifying based on gender identity would be any less constitutionally suspect then classifying based on sex. If the Jail can constitutionally segregate by gender or sex, caselaw compels our deference to a jail administrator’s determination, which is discussed below. 6 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 90

Ms. Griffith was treated identically to those with whom she is similarly situated,

biological males. That identical treatment forecloses her Equal Protection claim.

2. Rational Basis Review Applies

Ms. Griffith’s Equal Protection claim independently fails because she cannot

satisfy Turner’s rational basis review. The majority interprets her complaint to allege sex

discrimination and so concludes heightened scrutiny applies. Op. at 18 (citing United

States v. Virginia, 518 U.S. 515, 533 (1996) (VMI)); Op. at 28 n.14 (Any government

policy that “makes decisions by reference to biological sex [is] subject to heightened

scrutiny.”).

But the law is not so simple. The majority’s formulation ignores the Court’s

decision in Turner v. Safley which compels our application of rational basis review to

sex-based classifications in prisons and jails. 482 U.S. at 89 (“[W]hen a prison regulation

impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.”) (emphasis added).4

4 The majority refuses to apply Turner, in part, because no party raised Turner as controlling the standard of review. But the party presentation principle only “restricts courts from raising new issues.” United States v. Cortez-Nieto, 43 F.4th 1034, 1052 (10th Cir. 2022) (emphasis in original). The standard of review is not a new claim, it is part and parcel of how we decide constitutional issues. “When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). Ms. Griffith’s equal protection claim is properly before this court. Getting the law right means getting the standard of review right. 7 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 91

a. Turner Compels Rational Basis Review

In Turner, the Supreme Court reviewed prison policies restricting inmate marriage

and correspondence. Id. at 84–85.5 Striking down the latter but not the former, it held

that even “when a prison regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate penological interests.” 482 U.S.

at 89. The Court has since “made quite clear that the standard of review we adopted in

Turner applies to all circumstances in which the needs of prison administration implicate

constitutional rights.” Washington v. Harper, 494 U.S. 210, 224 (1990) (emphasis

added).

The Court has only narrowed Turner once, when it held that racial classifications

in prison are subject to strict scrutiny.6 Johnson v. California, 543 U.S. 499, 510 (2005).

Johnson held that racial classifications in prison are subject to strict scrutiny. Id. The

Court reasoned “[t]he right not to be discriminated against based on one’s race is not

5 While Turner specifically mentions “prison” the Court recently applied it to pre- trial detainees in jail—meaning it applies in all detention contexts. Florence, 566 U.S. at 326 (“The Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld ‘if it is reasonably related to legitimate penological interests.’”) (quoting Turner, 482 U.S. at 89). 6 Turner applies to regulations or policies—not to individual violations. For that reason, the Court “judge[s] violations of [the Eighth] Amendment under the ‘deliberate indifference’ standard, rather than Turner’s ‘reasonably related’ standard.” Id. at 511 (citations omitted). The same logic applies to individual searches under the Fourth Amendment. But when a search policy is challenged, the Turner framework applies. Florence, 566 U.S. at 330 (considering a jail’s policy of strip searching all incoming detainees and holding “[t]he current case is . . . governed by the principles announced in Turner.”). 8 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 92

susceptible to the logic of Turner” because “it is not a right that need necessarily be

compromised for the sake of proper prison administration.” Id. at 510–11. In other

words, constitutional rights that “must necessarily be limited in the prison context” are

subject to rational basis review, while constitutional rights “that need [not] necessarily be

compromised for the sake of proper prison administration” may be subject to greater

scrutiny. Id.

“Maintaining safety and order” is at the heart of day-to-day prison administration.

Florence, 566 U.S. at 326. In fact, the “necessities of prison security and discipline are a

compelling government interest.” Johnson, 543 U.S. at 512 (internal citation and

quotation marks omitted). Maintaining prison security “necessarily makes unavailable

many rights and privileges of the ordinary citizen, a retraction justified by the

considerations underlying our penal system.” Wolff v. McDonnell, 418 U.S. 539, 555

(1974) (internal quotation marks omitted). Nothing in Ms. Griffith’s complaint suggests

that sex-based classifications are ones that “need [not] necessarily be compromised for

the sake of proper prison administration.” Johnson, 543 U.S. at 510. To the contrary, the

complaint alleges the opposite—that “female” specific facilities lead to “safe and

appropriate” housing placements for transgender inmates. See e.g., Complaint ¶ 134.

The conclusion that sex-segregation leads to safer institutions is bolstered by

common experience evidencing that opposite sex housing “must necessarily be limited in

the prison context.” Johnson, 543 U.S. at 510. Justice Ginsburg explained why:

“[p]hysical differences between men and women . . . are enduring: ‘the two sexes are not

fungible; a community made up exclusively of one [sex] is different from a community

9 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 93

composed of both.’” VMI, 518 U.S. at 533 (quoting Ballard v. United States, 329 U.S.

187, 193 (1946)).

These “male-female differences are a cause for concern in the prison context

because increased rape, prostitution, and pregnancies, and the potential exploitation of

outnumbered women in desegregated prisons are very real dangers.” Jennifer Arnett Lee,

Women Prisoners, Penological Interests, and Gender Stereotyping: An Application of

Equal Protection Norms to Female Inmates, 32 Colum. Hum. Rts. L. Rev. 251, 259–60

(2000). Enduring physical differences mean that indiscriminate housing in prison could

place females at increased risk from males—something Ms. Griffith’s own complaint

concedes. See, e.g., Complaint ¶ 134 (recognizing the “safe[ty]” benefits inuring from

“appropriate placement in a female facility”). If this were not so, Ms. Griffith’s

allegation that her housing in the male unit “exposed her to a significantly increased risk

of sexual harassment [and] assault” would not be plausible. Complaint ¶ 2.

These differences mean the “segregation of inmates by sex is unquestionably

constitutional.” Women Prisoners, 93 F.3d at 926. See also L. W. by & through Williams

v. Skrmetti, 83 F.4th 460, 484 (6th Cir.), cert. dismissed in part sub nom, Doe v.

Kentucky, 144 S. Ct. 389, 217 L. Ed. 2d 285 (2023), and cert. granted sub nom. United

States v. Skrmetti, 144 S. Ct. 2679 (2024) (“[T]he government does not trigger

heightened review when it houses men and women separately at a prison without making

distinctions in funding or programming available to members of each sex.”).

Turner is so deferential to correctional policies because “[r]unning a prison is an

inordinately difficult undertaking that requires expertise, planning, and the commitment

10 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 94

of resources, all of which are peculiarly within the province of the legislative and

executive branches of government.” 482 U.S. at 84–85 (invoking separation of powers

concerns). See also Florence, 566 U.S. at 326 (“The difficulties of operating a detention

center must not be underestimated by the courts.”). Given the “inordinate[] difficult[y]”

in running a prison, we, the Supreme Court, and other circuits have mandated deference

to these sorts of policies. Id.; Est. of DiMarco v. Wyoming Dep’t of Corr., Div. of

Prisons, 473 F.3d 1334, 1342 (10th Cir. 2007) (cautioning that “any assessment” of

inmate housing assignments “must be mindful of the primary management role of prison

officials who should be free from second-guessing or micro-management from the

federal courts”); Barney, 143 F.3d at 1313 (reviewing county’s policy of keeping women,

but not men, in solitary confinement and noting “[w]e hesitate to interfere with prison

officials’ decisions concerning the day-to-day administration of prisons, to which we

must accord deference”); Griffin v. Brooks, 13 F. App’x 861, 864–65 (10th Cir. 2001)

(reviewing administrative segregation policy and noting “we hesitate to interfere with

prison officials’ decisions concerning the day-to-day administration of prisons, to which

we must accord deference unless they violate the constitution or federal law”); Klinger v.

Dep’t of Corr., 31 F.3d 727, 732 (8th Cir. 1994) (“[b]ecause courts have little expertise in

the inordinately difficult task of running prisons, courts should accord a high degree of

deference to prison authorities”) (internal quotations omitted); Women Prisoners, 93 F.3d

at 926–27 (applying Turner and warning against “completely eviscerat[ing] the deference

that federal courts are obliged to give prison administrators”); Veney v. Wyche, 293 F.3d

11 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 95

726, 733 (4th Cir. 2002) (applying Turner and deferring housing decisions to prison

officials).

Consistent with this approach, we applied Turner to an Equal Protection claim

asserting sex-based discrimination in prison two years after VMI. Barney, 143 F.3d at

1313 n.17 (applying rational basis review to jail’s policy of “keeping women”—but not

men—“in solitary confinement” and upholding that policy as “reflect[ing] a legitimate

and rational decision to provide for the safety of inmates and the efficient running of the

jail.”). We have also applied rational basis review to Equal Protection claims on two

other occasions involving challenges to prison policies outside the sex-discrimination

context. See Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994) (applying Turner

to prison’s decision to transfer inmate to administrative segregation), and Fogle, 435 F.3d

at 1261 (same).

Turner—and the caselaw applying it—prescribe deferential rational basis review

for jail policies impacting constitutional rights other than race.7 We are bound to apply

that standard here.

b. VMI did not create a Turner carveout

The majority creates a new Turner “carve[] out,” Johnson, 543 U.S. at 545

(Thomas, J., dissenting), by focusing on VMI’s language saying “all gender-based

7 The detention context distinguishes the majority’s citations to and reliance on Doe through Doe v. Rocky Mountain Classical Acad., 99 F.4th 1256, 1258 (10th Cir. 2024) (Title IX claim); Free the Nipple-Fort Collins v. City of Fort Collins, Colorado, 916 F.3d 792, 799 (10th Cir. 2019) (city’s public nudity ordinance); and Fowler v. Stitt, 104 F.4th 770 (10th Cir. 2024) (state practice denying sex-designation amendments to birth certificates). 12 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 96

classifications today warrant heightened scrutiny.” 518 U.S. at 555. I next explain why

that cannot be correct.

First, Turner remains good law. In fact, the Court has twice reaffirmed its central

holding after VMI. Johnson, 543 U.S. at 512 (reaffirming Turner’s general applicability

in 2005—9 years after VMI); Florence, 566 U.S. at 339 (same in 2012 and also holding

Turner applies to the “Fourth and Fourteenth Amendments.”). Most recently in

Florence, the Court “confirmed the importance of deference to correctional officials and

explained that a regulation impinging on an inmate’s constitutional rights must be upheld

if it is reasonably related to legitimate penological interests.” 566 U.S. at 326 (quotation

marks omitted). It also “reaffirm[ed]” in Johnson that the “necessities of prison security

and discipline are a compelling government interest.” Johnson, 543 U.S. at 512

(emphasis added and citations omitted) (holding even racial segregation could satisfy

strict scrutiny sometimes). Turner applies with particular force to policies directed at

“[m]aintaining safety and order at these institutions [which] requires the expertise of

correctional officials, who must have substantial discretion to devise reasonable solutions

to the problems they face.” Florence, 566 U.S. at 326. For that reason, Turner has

uniformly been applied to policies “implicating prison security and day-to-day

management concerns.”8 Pitts v. Thornburgh, 866 F.2d 1450, 1454 (D.C. Cir. 1989).

8 Johnson—the only case narrowing Turner—was also decided nine years after VMI. Johnson, 543 U.S. 499. Yet it does not mention VMI. See generally id. If VMI created a Turner carve out for sex-based classifications, the Court would have mentioned it in creating another, ostensibly similar, carve out in Johnson. Yet it didn’t. And it makes sense why: the Court does not “equat[e] gender classifications . . . to classifications based on race or national origin.” VMI, 518 U.S. at 532. Race, according 13 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 97

Housing inmates and managing their personal property is a “day-to-day”

management concern “implicating prison security.” Id. Ms. Griffith concedes as much.

See, e.g., Complaint ¶ 134 (alleging the Jail “had no penological basis to deny Plaintiff a

safe and appropriate placement in a female facility.”). Turner applies to these policies.

Second, in Washington v. Harper the Court “made quite clear that the standard of

review we adopted in Turner applies to all circumstances in which the needs of prison

administration implicate constitutional rights.” 494 U.S. at 224 (emphasis added). To

fall outside Turner’s ambit, the Court must explicitly recognize a carveout. It only did so

once, in Johnson, for race.9 Id. This was justified, it reasoned, because “[w]hen

government officials are permitted to use race as a proxy for gang membership and

violence . . . society as a whole suffers.” Id. at 511. Yet VMI was careful to note the

Court does not “equat[e] gender classifications . . . to classifications based on race.” 518

U.S. at 532. Rather, “[t]he Court has thus far reserved most stringent judicial scrutiny for

to the Court, is different; that is why race-based classifications get strict scrutiny while sex-based classifications (outside of prison) get intermediate scrutiny. 9 The Court in Johnson also observed “[w]e have not used Turner to evaluate Eighth Amendment claims of cruel and unusual punishment in prison. We judge violations of that Amendment under the ‘deliberate indifference’ standard, rather than Turner’s ‘reasonably related’ standard.” 543 U.S. at 511. It would be odd for the Court to acknowledge the Turner “carve[] out[s],” id. at 546, while ignoring a massive one the majority functionally alleges the Court created nine years beforehand. See also supra n.4.

The majority resolves the tension between VMI and Turner by arguing that sex fits inside the Johnson carveout because race is “the Equal Protection category most like sex.” Op. at 42. But the Supreme Court’s sex discrimination caselaw developed “[w]ithout equating gender classifications, for all purposes, to classifications based on race or national origin.” VMI, 518 U.S. at 532. 14 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 98

classifications based on race or national origin.” Id. at 533 n.6. We cannot infer from

Johnson or VMI that sex-based housing classifications warrant a categorical Turner carve

out simply because race-based classifications do. Race, the Court has explained, is

different. Until the Supreme Court creates such a carveout, we must hold that the Jail’s

policies are one of the circumstances to which Turner applies. Washington, 494 U.S. at

224 (“Turner applies to all circumstances in which the needs of prison administration

implicate constitutional rights.”) (emphasis added).

Third, the policies here do not lend themselves to VMI’s logic because they do not

favor one sex over the other. The Court in VMI was concerned about the unequitable

distribution of benefits to the sexes predicated on invidious stereotypes about sex. Its

central teaching—and that of all the cases it relied on and all those coming since—is that

unconstitutional sex discrimination—as opposed to constitutional sex-based

classification—requires favoring one sex over the other. VMI, 518 U.S. at 555 (favoring

males by excluding female applicants from unrivaled military school based solely on

sex); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (favoring females

by excluding male applicants from regional nursing school); J.E.B. v. Alabama ex rel.

T.B., 511 U.S. 127, 137 (1994) (creating a more favorable jury pool by striking potential

jurors “based on gender stereotypes”). See also Fowler v. Stitt, 104 F.4th 770, 783–84

(10th Cir. 2024) (analyzing gender identity claim involving birth certificates: “[t]o state a

viable equal protection claim, Plaintiffs must allege that the Policy purposefully

discriminates against them because of their membership in a particular class.”) (emphasis

15 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 99

Underscoring the interpretation that discrimination is a necessary predicate, the

Court has not applied heightened scrutiny to “all” sex-based classifications. Dobbs v.

Jackson Women’s Health Org., 597 U.S. 215, 236 (2022) (“The regulation of a medical

procedure that only one sex can undergo does not trigger heightened constitutional

scrutiny unless the regulation is a ‘mere pretex[t] designed to effect an invidious

discrimination against members of one sex or the other.’”) (emphasis added) (citing

Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974)).

As the Sixth Circuit explained in Skrmetti:

What of language in the cases saying that “all” sex-based classifications receive heightened review? Virginia, 518 U.S. at 555, (quoting J.E.B., 511 U.S. at 136); see Hogan, 458 U.S. at 724–25. The laws in those cases used sex classifications to bestow unequal treatment on men and women. See Virginia, 518 U.S. at 519 (excluding female applicants); Hogan, 458 U.S. at 719 (excluding male applicants). Those cases show only that the government cannot classify individuals by sex when doing so perpetuates invidious stereotypes or unfairly allocates benefits and burdens.

Id. (cleaned up and internal quotations omitted).

Justice Ginsburg recognized this bedrock tenet in VMI:

“Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women “for particular economic disabilities [they have] suffered,” Califano v. Webster, 430 U.S. 313 (1977) (per curiam), to “promot[e] equal employment opportunity,” see California Fed. Sav. & Loan Assn. v. Guerra, 479 U.S. 272, 289, (1987), to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once

16 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 100

were, see Goesaert, 335 U.S., at 467, to create or perpetuate the legal, social, and economic inferiority of women.

518 U.S. at 533–34 (cleaned up and emphasis added).

The Court in VMI was concerned with policies that “create or perpetuate the legal,

social, and economic inferiority of women” based on “overbroad generalizations about

the different talents, capacities, or preferences of males and females.” Id. at 533. It was

not concerned with “[m]aintaining safety and order” in prisons, Florence, 566 U.S. at

326, by classifying inmates in accordance with their biological sex.

The touchstone of the Equal Protection scrutiny analysis is not whether sex factors

into a policy or law, as the majority claims, but whether it discriminates based on sex by

ascribing different benefits or burdens to the sexes. Put another way, it is differential

treatment—not mere classification—that triggers heightened scrutiny. See Women

Prisoners, 93 F.3d at 953 (“The Supreme Court’s sex discrimination cases make it clear

that the government may not rely on generalizations—even somewhat accurate ones—

about women to justify different treatment of the sexes.”) (Rogers, J., concurring in part).

Even if VMI applies to some degree in the prison context, its normative thrust is

not implicated here because the complaint does not allege the Jail’s policies favor one sex

over the other by, for example, “making distinctions in funding or programming available

to members of each sex.” Skrmetti, 83 F.4th at 484 (citing Women Prisoners, 93 F.3d at

926). See also Barney, 143 F.3d at 1312 n.15 (“The Equal Protection Clause in the

prison-conditions context is usually invoked to remedy disparities in educational,

vocational, and recreational programs offered to male and female inmates.”). The burden

17 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 101

Ms. Griffith alleges is shared by both sexes without regard to stereotypes—they are

classified based on their physical differences in furtherance of a “legitimate penological

interest”: “[m]aintaining safety and order.” Florence, 566 U.S. at 326. Because the Jail’s

policies do not impermissibly discriminate by favoring one sex over the other, but

permissibly classify based on biological sex in furtherance of the “necessities of prison

security and discipline,” id. at 512, Turner applies.

That said, I acknowledge some doctrinal inconsistency between Washington’s

holding that “Turner applies to all circumstances in which the needs of prison

administration implicate constitutional rights,” 494 U.S. at 224 (emphasis added), and the

Court’s holding in VMI. 518 U.S. at 555. While that inconsistency is ultimately not for

lower courts to remedy, one principle must cede to the other. For the reasons explained

above, I believe the best reading of the Court’s precedent is that Turner applies to a

prison’s sex-based classifications when those classifications do not result in distinctions

in funding or programming available to members of each sex. See Skrmetti, 83 F.4th at

484.

Because the policies here do not inequitably allocate benefits or burdens based on

sex, we remain bound to apply Turner.10

*****

10 Even if intermediate scrutiny applies, I am unaware of, nor has the majority identified any, case holding segregation of inmates by sex is unconstitutional. Contra Women Prisoners, 93 F.3d at 926 (“the segregation of inmates by sex is unquestionably constitutional.”). 18 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 102

To recap, “Turner applies to all circumstances in which the needs of prison

administration implicate constitutional rights.” 494 U.S. at 224 (emphasis added). For

Turner not to apply, the Supreme Court must create a carveout. See Johnson, 543 U.S. at

511. For the reasons explained above, VMI does not create a categorical carveout for

sex-based classifications. Rather, heightened scrutiny only applies to sex-based

classifications in prison when those classifications are the basis for bestowing unequal

treatment upon the sexes. That is not the case here.

Accordingly, we remain compelled to apply Turner to “all” circumstances not

otherwise delineated. Washington, 494 U.S. at 224; Johnson, 543 U.S. at 511. Ms.

Griffith’s allegations do not survive Turner review.11

3. Ms. Griffith cannot overcome rational basis review

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)) (internal quotation marks omitted). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id.

11 Ms. Griffith also argues transgender status is a suspect or quasi-suspect class warranting heightened scrutiny. The majority does not reach this argument since it concludes the Jail’s policies automatically trigger heightened scrutiny. Op. at 20–24. If I am wrong that rational basis review applies, I agree with the lower court that we are bound by Brown v. Zavaras’s holding that transgender status is not “a protected class”— meaning rational basis review applies either way. 63 F.3d 967, 971 (10th Cir. 1995). 19 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 103

Recall that the Jail’s policies are “valid if [they are] reasonably related to

legitimate penological interests.” Turner, 482 U.S. 78. And the Court considers

“institutional security” to be a “valid penological objective[].” O’Lone v. Est. of Shabazz,

482 U.S. 342, 348 (1987). So to overcome a motion to dismiss, Ms. Griffith’s complaint

must show that any “difference in treatment was not reasonably related to” its “legitimate

penological interest[]” in institutional security. Fogle, 435 F.3d at 1261. It doesn’t.

Ms. Griffith’s challenge to the Jail’s sex placement and accoutrement policies

cannot overcome rational basis review because they “reflect[] a legitimate and rational

decision to provide for the safety of inmates and the efficient running of the jail.”

Barney, 143 F.3d at 1313 n.17; c.f. Johnson, 543 U.S. at 512 (“[T]he necessities of prison

security and discipline are a compelling government interest.”) (internal citations and

quotations omitted). Ms. Griffith’s only allegation that the Jail lacks a penological

interest in its policies is her conclusory statement that it has “no penological basis to deny

Plaintiff a safe and appropriate placement in a female facility.” Complaint ¶¶ 134, 204.

But this allegation is simply a “[t]hreadbare recital[] of the elements of a cause of action,

supported by mere conclusory statements,” Iqbal, 556 U.S. at 678, and cannot overcome

the Jail’s motion to dismiss.

Even if we accepted this allegation, her complaint would still be deficient because

she has not “nudged [her] claim[] across the line from conceivable to plausible.”

Twombly, 550 U.S. at 570. Determining whether a complaint states a “plausible” claim

for relief is a “context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Iqbal, 556 U.S. at 679. Facts alleged in a

20 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 104

complaint might state a claim that is “conceivable,” but not “plausible,” if it disregards

“obvious alternative explanations” for government action. Id. at 682 (citing Twombly,

550 U.S. at 567).

I do not think the existence of obvious alternative explanations is necessarily fatal

to a complaint. See Hughes v. Nw. Univ., 63 F.4th 615, 629 (7th Cir. 2023) (“Where

alternative inferences are in equipoise—that is, where they are all reasonable based on the

facts—the plaintiff is to prevail on a motion to dismiss.”). But if obvious alternative

explanations exist, a complaint may need to refute them for its allegations to be

plausible—particularly when “common sense,” Iqbal, 556 U.S. at 679, counsels against

accepting the allegations. That is the case here.

Without additional factual allegations, Ms. Griffith’s assertion that the Jail lacks a

penological interest in assigning her to a male facility based on her sex is not plausible.

Complaint ¶ 134. The obvious reason for the Jail’s sex-based classifications—indeed the

reason cited in Ms. Griffith’s complaint—is to “significantly” reduce the “risk of sexual

harassment, assault, and emotional distress” for inmates by segregating the sexes—an

institutional safety concern. Complaint ¶ 2, O’Lone, 482 U.S. at 348 (“institutional

security” is a “valid penological objective[].”). The policy, therefore, is at least

“reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89.

Our deference to these sorts of policies is particularly warranted in jails (as

opposed to most prisons), which as a matter of day-to-day administration must

accommodate a constant stream of newly arrested inmates—about whom they often have

little information—meaning it is virtually impossible to make nuanced placement

21 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 105

decisions based on an inmate’s gender identity or particular risk factors. Florence, 566

U.S. at 326 (“The largest [jails] process hundreds of people every day . . . . Maintaining

safety and order at these institutions requires the expertise of correctional officials, who

must have substantial discretion to devise reasonable solutions to the problems they

face.”). Simply put, the obvious alternative explanation for the jail’s sex-based

classifications is that doing so is the best way to regulate institutional security in the

dynamic jail environment.

And again, Ms. Griffith’s complaint does not actually allege there is no

penological interest in sex-based jail classifications or that such classifications are

unconstitutional—just that she is on the wrong side of them. Even the majority’s opinion

acknowledges the obvious penological justifications for the Jail’s policies: inmate safety,

Op. at 8 (“housing her in an all-male unit subjected her to a risk of sexual harassment,

sexual assault, and extreme emotional distress”); dignitary concerns as to other inmates,

id. at 9 n.4 (“Ms. Griffith informed a deputy at the Jail she was uncomfortable that the

other inmates in her unit were not wearing shirts”); and dignitary concerns as to staff, id.

at 9 (“Ms. Griffith claims male deputies regularly touch ‘her breast[s] and groin when

patting her down.”).

Simply put, I do not believe the Constitution compels jails to house males and

females together, or to otherwise be sex-blind in their policies. Her requested relief

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. Balancing these cross-sex

22 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 106

consequences exactly the kind of decision we owe Turner deference. There is an obvious

penological interest, so we need not accept her allegation as true.12

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—the outcome necessary to defeat rational basis review. Her desire to be placed

in female housing is just one of many factors that a facility must consider when housing

detainees. Indeed, one must acknowledge that many male and female inmates may also

be at greater risk in a particular sex-based housing unit because of their individual

characteristics (such as size, sexual orientation, type of crime, race, religion), and thus

prefer to be housed in a different unit. These inmates do not have plausible sex-based

Equal Protection claims. Under the majority’s logic, they do.

Ms. Griffith’s request to be housed with biological females undermines her claim

that the Jail lacks a penological interest in sex-based classifications. Simply put, her

complaint is circular. Detention facilities across the country must grapple with the

12 The majority acknowledges this tension. See, e.g., Op. at 61 (“[I]t is generally considered a greater invasion to have one’s naked body viewed by a member of the opposite sex.”) (quoting Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994)). Under Ms. Griffith’s view, female guards will now have to perform cross-sex strip searches. Dignitary interests run both ways.

This observation leads to another. While the majority begins its opinion by defining sex relative to gender, Op. at 5 , it later conflates the two. See, e.g., id. at 65 (stating, “our law is clear that cross-gender strip searches must be motivated by some penological interest” but quoting Shroff v. Spellman, 604 F.3d 1179 (10th Cir. 2010), for support, which concerned cross-sex nudity and does not even mention “gender”). 23 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 107

challenges of transgender inmates in housing, medical care, programming, and security.

The Jail (and every detention facility) must balance myriad such competing interests to

promote safe, dignified inmate housing. But those challenges must be met by prison

administrators on a case-by-case basis. And difficult decisions do not a viable Equal

Protection claim make. Rather, they emphasize why deferential rational basis review

applies.13

In sum, Ms. Griffith’s complaint does not survive deferential rational basis review,

so I would affirm the district court’s dismissal of her complaint.14

13 If an individualized detention decision places inmates in harm’s way, they might have Eighth Amendment or substantive due process claims. See supra n.4. But c.f. Estate of DiMarco, 473 F.3d at 1336 (concluding transgender inmate “does not have a liberty interest in her placement and the conditions of confinement.”). 14 Ms. Griffith’s best Equal Protection claim is that the Jail’s accoutrement policy impermissibly discriminates based on sex by allowing females, but not males, to have lipstick and female underwear. But recall that Ms. Griffith claims her “discernible feminine characteristics” placed her at “heightened risk of sexual victimization.” Complaint ¶ 129. And she alleges “panties and lipstick” “conform[] with her [female] gender identity.” Complaint ¶ 3. The inference is that panties and lipstick make her appear more feminine, which will also place her at a heightened risk of sexual victimization. The obvious reason for the Jail’s policy, then, is that permitting vulnerable male inmates to have articles that make them appear more “feminine” increases the likelihood of sexual violence and harassment—the harms Ms. Griffith fears. In Barney, we held this sort of jail policy—one treating women differently based on security concerns—“reflects a legitimate and rational decision to provide for the safety of inmates and the efficient running of the jail.” 143 F.3d at 1313 n.17. And institutional security is more than a legitimate government interest, it is a “compelling” one. Johnson, 543 U.S. at 505. Preventing inmates from having items that increase their likelihood of being sexually victimized is “substantially related to” achieving that compelling objective— meaning Ms. Griffith’s complaint also facially fails heightened scrutiny. 24 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 108

C. Fourth Amendment Claim

Ms. Griffith also brings two Fourth Amendment claims flowing from alleged

“cross-gender” strip searches and pat downs: one directed at El Paso County and the

other directly at Deputy Mustapick. See, e.g., Complaint ¶ 3. Taking her claims in order,

Ms. Griffith’s claims fail for several independent reasons.

She first alleges a Fourth Amendment violation against the County because its

alleged search policy resulted in a male deputy searching her lower body—even though a

female deputy searched her upper body. Complaint ¶ 76. Adjudicating a Fourth

Amendment unreasonable search claim requires courts to weigh “the need for the

particular search against the invasion of personal rights that the search entails. Courts

must consider the scope of the particular intrusion, the manner in which it is conducted,

the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish,

441 U.S. 520, 559 (1979). Boiled down, this claim asks us to find that the Constitution

requires female deputies to strip search biologically male inmates who identify as

women.

As discussed above, prison policies such as this one are subject to rational basis

review. Turner, 482 U.S. at 89; Florence, 566 U.S. at 330 (search policies in jails are

“governed by the principles announced in Turner and Bell.”). Ms. Griffith plausibly

alleges that she found the search to be distressing. I have no doubt it was. But she offers

no factual allegations which, taken as true, demonstrate that the Jail’s same-sex strip

search policy is unrelated to its legitimate interests in prison security and employee

welfare or privacy. Turner, 482 U.S. at 90 (relevant to the reasonableness of a prison

25 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 109

regulation is “the impact accommodation of the asserted constitutional right will have on

guards and other inmates.”). I therefore disagree with the majority that Ms. Griffith has

plausibly alleged that the policy violates the Fourth Amendment.

Second, Ms. Griffith asserts a Fourth Amendment claim directly against Deputy

Mustapick owing to his use of abusive language while conducting a strip search. Deputy

Mustapick is presumptively shielded by qualified immunity, so Ms. Griffith must show

that her Fourth Amendment right “was clearly established at the time of the violation,

such that every reasonable official would have understood, that such conduct constituted

a violation of that right.” Reavis Estate of Coale v. Frost, 967 F.3d 978, 984 (10th Cir.

2020) (internal quotation marks omitted). To do so, she must refer to a Supreme Court or

Tenth Circuit opinion, or to the established weight of authority from other circuits.

Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021).

While it is clearly established that strip searches “must be conducted in a

reasonable manner,” Bell, 441 U.S. at 560, Ms. Griffith has not pointed to any precedent

that would transform an otherwise reasonable search into a constitutionally violative one

owing exclusively to offensive language. While Deputy Mustapick’s alleged speech is

deplorable, Ms. Griffith has not identified caselaw clearly establishing that deplorable

language makes an otherwise permissible search unconstitutional. Nor does it appear that

the Jail’s search policy condoned abusive language as a part of its practices.

The majority thinks this isn’t an issue because, it concludes, “‘a general

constitutional rule already identified in the decisional law’ can overcome qualified

immunity when it ‘appl[ies] with obvious clarity to the specific conduct in question.’”

26 Appellate Case: 23-1135 Document: 130-1 Date Filed: 02/19/2025 Page: 110

Op. at 72 (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)). The “general constitutional

rule” it relies on is that abusive searches “cannot be condoned.” Bell, 441 U.S. at 560.

In Bell, the Court concluded a prison did not violate the Fourth Amendment by

mandating full-body strip searches after visits. Id. at 558–60. It is impossible to

conclude from an opinion permitting strip searches that abusive language during an

otherwise reasonable search violates the Fourth Amendment. This undercuts the

requirement that a “rule’s contours must be so well defined that it is clear to a reasonable

officer that his conduct was unlawful in the situation he confronted” and that “courts

must not define clearly established law at a high level of generality”—a requirement that

is “especially important in the Fourth Amendment context.” D.C. v. Wesby, 583 U.S. 48,

63–64 (2018).

By permitting Ms. Griffith to overcome qualified immunity based on Bell, the

majority misapplies the “clearly established” prong to overcome qualified immunity.

Because no such authority exists, I would affirm the district court’s dismissal of this

claim.

This case pits profoundly personal convictions against jail policies aimed at

maintaining institutional security while balancing the dignitary concerns of officers and

inmates. Ms. Griffith alleges her interests transcend the Jail’s. But I do not believe either

the Equal Protection Clause or the Fourth Amendment affords the relief she seeks.

For the reasons stated above, I would affirm the district court’s dismissal of her

complaint, and so respectfully dissent.