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Griffith v. El Paso County, Colorado, et al.
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 Griffith’s complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Griffith sought reversal.
She specifically appealed the dismissal of her constitutional claims under Section 1983 and her claims under the Americans with Disabilities Act and the Rehabilitation Act. The 10th Circuit Court of Appeals in February concluded remand was required, but only on some of Griffith’s claims. The court reversed and remanded for further proceedings on Griffith’s 14th Amendment equal protection claim against Sheriff Bill Elder in his official capacity, Fourth and 14th Amendment cross-gender search claims against Elder in his official capacity, and Fourth Amendment abusive search claim against Deputy Andrew Mustapick.
The appeals court vacated the district court’s order dismissing 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 was unchallenged on appeal. The court otherwise affirmed.
The matter was again before the 10th Circuit on Elder’s petition for rehearing en banc and Griffith’s response to the petition for rehearing en banc. The petition and the response were circulated to all judges of the court who are in regular active service, and a poll was called but the poll didn’t carry. Consequently, Elder’s request for en banc rehearing was denied.
Judges Timothy Tymkovich, Allison Eid and Joel Carson would grant the petition. Judge Veronica Rossman filed a separate concurrence in support of the denial of en banc rehearing, which was joined by Judge Richard Federico. Tymkovich filed a separate dissent from the denial of en banc rehearing, which was joined by Eid and Carson. Judge Harris Hartz filed a separate statement.
Hartz wrote that while he didn’t vote to en banc the case, he agreed with Tymkovich’s dissent in full. “Also, I fail to see why we should issue a mandate in this case at this time when it is so likely that the Supreme Court will give us guidance on a relevant important issue within the next few weeks,” Hartz noted.
“This court is between a rock and a hard place,” Tymkovich wrote in the dissent. “The Supreme Court has held that ‘that the [rational basis] standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights.’”
But Tymkovich explained the high court also held in a later case that “all gender-based classifications today warrant heightened scrutiny.”
“This case puts those statements at odds because prison officials house inmates according to their sex,” Tymkovich wrote.
Tymkovich asserted Griffith’s claim implicates both United States v. Virginia’s heightened scrutiny for sex discrimination and Turner v. Safley’s rational basis review for prison regulations.
“Had we properly wrestled with the question, we would have concluded that Turner applies unless the Supreme Court explicitly creates a carveout for sex classifications in the prison context,” Tymkovich wrote. “Even so, I do not think that transgender classifications are based on sex for purposes of the Equal Protection Clause and that heightened scrutiny was impermissible for that reason as well.”