In a major win for trans and civil rights, on February 19, 2025, the U.S. Court of Appeals for the Tenth Circuit ruled in favor of Darlene Griffith, a transgender woman, in her equal protection challenge to her pretrial confinement in the El Paso County jail, where she was assigned to the male housing unit and denied access to women’s commissary items.
When she was booked into the El Paso County Jail, Ms. Griffith was excluded from housing with other women detainees, denied women’s undergarments and grooming products, mocked with improper pronouns, and subjected to a strip search by an unsupervised male guard. The jail refused to treat Ms. Griffith like other women based on a policy that classified her based on her sex assigned at birth.
Ms. Griffith challenged this discriminatory treatment in court, including as a violation of her rights under the Fourteenth Amendment’s Equal Protection Clause.
In August of 2023, we filed an amicus brief in support of Ms. Griffith’s equal protection claim, urging the Tenth Circuit to hold that heightened scrutiny applies to discrimination on the basis of transgender status because such discrimination is discrimination on the basis of sex and because transgender status is itself a quasi-suspect classification.
The Tenth Circuit agreed that Ms. Griffith adequately alleged the Jail treats transgender women differently from cisgender women, which means they treat individuals differently on the basis of sex. The court remanded for application of intermediate scrutiny to her sex discrimination claim.
Finally, although it didn’t decide the issue expressly, the court of appeals importantly signaled its disagreement with the lower court’s reasoning that earlier precedent in the Tenth Circuit foreclosed the conclusion that transgender status itself is a quasi-suspect classification subject to heightened scrutiny.
