{"schema_version":1,"citation_url":"https://567politics.com/news/supreme-court-roybal-v-griffith-transgender-jail-housing-remand-november-2026","title":"Supreme Court sends a transgender jail case back. The administration says two rulings already end it","description":"The justices vacated a ruling that let Darlene Griffith challenge her placement in a Colorado men's unit. Both sides now fight over what Skrmetti and B.P.J. mean.","author":"567 Politics staff","publisher":"567politics","date_published":"2026-11-09T20:10:04.378677Z","date_modified":"2026-11-09T20:10:39.155697Z","body_markdown":"The Supreme Court on Monday wiped out an appeals court ruling that let a transgender woman pursue a sex-discrimination claim against a Colorado jail that housed her with men. It told the lower court to try again in light of the justices' two recent transgender decisions. The [order in Roybal v. Griffith, No. 25-442](https://www.supremecourt.gov/docket/docketfiles/html/public/25-442.html) granted the El Paso County sheriff's petition, vacated the Tenth Circuit's judgment and remanded the case \"for further consideration in light of West Virginia v. B. P. J.\" and \"United States v. Skrmetti.\"\n\nThe order is short and unsigned, and it does not decide whether the jail's policy is constitutional. But it follows the path the Trump administration's Justice Department urged in September, when it told the justices that those two rulings \"foreclose\" Darlene Griffith's claims. Her lawyers at the MacArthur Justice Center had argued that the appeals court decided only that her complaint was plausible enough to reach discovery. The Tenth Circuit now has to decide which reading of the new precedents is right.\n\n## What the Supreme Court did, and did not, decide\n\nA \"grant, vacate and remand\" order, known to lawyers as a GVR, is a routine tool. The Court uses it when an intervening decision creates what it has called \"a reasonable probability\" that a lower court would reach a different result if it took another look. The order carries no majority opinion, and no justice noted a dissent on the [November 9 docket entry](https://www.supremecourt.gov/docket/docketfiles/html/public/25-442.html).\n\nThat leaves two separate questions open. The first is the one the sheriff asked the Court to take up. It asks whether jail and prison policies that classify inmates by biological sex get the heightened \"intermediate scrutiny\" the Constitution applies to most sex classifications. The alternative is the more deferential test from the 1987 prison case Turner v. Safley. That test upholds a prison rule if it is \"reasonably related to legitimate penological interests.\" The second is whether Griffith's claim survives at all under the two new precedents. Skrmetti is the June 2025 ruling upholding Tennessee's ban on gender-transition medical care for minors. B.P.J. is the 2026 ruling upholding state laws that limit girls' and women's school sports teams to students whose sex was recorded as female at birth.\n\nThe administration asked the Court not to grant full review. The justices had invited the Solicitor General's views, and the [brief for the United States](https://www.supremecourt.gov/DocketPDF/25/25-442/425659/20260925142253981_25-442_Roybal_CVSG.pdf) arrived on September 25. It argued that the sheriff was right on the merits. But it called this case \"not a suitable vehicle\" because the Tenth Circuit had never actually decided the Turner question. The Court followed that recommendation.\n\n## The case behind the order\n\nGriffith entered the El Paso County jail in Colorado Springs as a pretrial detainee in July 2020. According to her complaint, as summarized in her [brief in opposition](https://www.supremecourt.gov/DocketPDF/25/25-442/384123/20251110173647335_Roybal%20v.%20Griffith%20No.%2025-442%20BIO.pdf), she had lived openly as a woman for more than 20 years, had been diagnosed with gender dysphoria and took feminizing hormones. At intake she asked to be placed in a women's unit because she feared sexual assault in a men's unit. The jail denied the request under a policy that, her lawyers say, assigns detainees \"on the basis of the individual's genitalia.\"\n\nThe complaint alleges that a male deputy conducted the lower half of her intake strip search after she asked for a female officer. It says he made sexually explicit and threatening remarks during it, and warned her not to report what he said. It also alleges that she was repeatedly sexually assaulted by a male detainee, was patted down by male deputies, and was denied women's underwear, a sports bra and other commissary items available to women. These are allegations; because the case was dismissed at the pleading stage, no court has made findings of fact. The [MacArthur Justice Center's case page](https://www.macarthurjustice.org/case/griffith-v-el-paso-county-colorado/) says she spent more than a year in those conditions before the jail moved her to a women's unit.\n\nThe sheriff and the deputy frame the case differently. The [county's petition](https://www.supremecourt.gov/DocketPDF/25/25-442/378941/20251007112457077_Cert%20Petition.pdf) says the jail \"generally\" assigns inmates by genitals. It defends the practice as a centuries-old safeguard for \"institutional security,\" the prevention of sexual violence and \"the privacy and dignity of those in custody and of staff.\" It argues that the appeals court subordinated those interests \"to the preference of one.\"\n\nA federal district judge dismissed Griffith's 16-count complaint, applying rational-basis review under circuit precedent holding that transgender status is not a suspect class. On February 19, 2025, a divided Tenth Circuit panel revived part of it. Judge Veronica Rossman, joined by Judge David Ebel, held that a policy sorting inmates by biological sex is a sex classification subject to intermediate scrutiny. The majority found that Griffith had plausibly alleged it failed that test as applied to her. The panel also let a Fourth Amendment claim against the deputy proceed. Judge Timothy Tymkovich dissented, arguing that Griffith was treated identically to other biological males and that Turner's deferential standard should control. The full court denied rehearing on June 10, 2025, over dissents by four judges, eight days before Skrmetti came down.\n\n```diagram\ntype: timeline\ntitle: Roybal v. Griffith, from jail intake to Supreme Court remand\nsource: [Supreme Court docket 25-442](https://www.supremecourt.gov/docket/docketfiles/html/public/25-442.html); [Tenth Circuit opinion in petition appendix](https://www.supremecourt.gov/DocketPDF/25/25-442/378941/20251007112514594_Appendix.pdf)\n---\nJuly 2020: Griffith enters El Paso County jail and is assigned to a men's unit\nJune 7, 2022: Third amended complaint filed in federal court in Colorado\nFeb. 19, 2025: Divided Tenth Circuit panel revives equal-protection and search claims\nJune 10, 2025: Tenth Circuit denies rehearing en banc\nJune 18, 2025: Supreme Court decides United States v. Skrmetti\nOct. 7, 2025: Sheriff files petition for certiorari\nJune 30, 2026: Court invites the Solicitor General's views\nSept. 25, 2026: United States urges grant, vacate and remand\nNov. 9, 2026: Supreme Court vacates and remands\n```\n\n## The administration's argument: B.P.J. and Skrmetti settle it\n\nThe Justice Department's September brief is the clearest statement of why the sheriff's side reads Monday's order as decisive. It argues that Skrmetti and B.P.J. \"rejected the key constitutional reasoning underpinning\" both Griffith's claims and the Tenth Circuit's decision. It notes that the panel relied on its own 2024 ruling in Fowler v. Stitt, an Oklahoma birth-certificate case that the Supreme Court itself vacated after Skrmetti, and on the Ninth Circuit's decision in Hecox v. Little, which B.P.J. reversed.\n\nThe brief also marks a change of position. A footnote acknowledges that in 2023 the United States backed Griffith in the Tenth Circuit and argued that intermediate scrutiny applied. It says that \"following the change in Administration\" and the two intervening rulings, the government \"has reconsidered that view.\" That shift is part of a broader federal turn. The brief points to a Bureau of Prisons regulation on searches. Separately, an executive order early in President Trump's second term directed federal prisons to house inmates by biological sex, a policy that incarcerated transgender women are challenging in separate litigation.\n\nA coalition of 23 Republican-led states, led by Kansas, together with the Arizona Legislature, made a similar case in an [amicus brief](https://www.supremecourt.gov/DocketPDF/25/25-442/384081/20251110154142177_25-442%20Amici%20Brief.pdf). Sex-based housing, they wrote, treats \"similarly situated inmates alike\" because \"all inmates—male and female—are housed with members of their biological sex.\" Running a correctional facility, they added, is \"a tough, dangerous task for which the courts are the least qualified among the three branches of government.\" They warned that facilities in \"largely rural states\" would be put in \"an untenable position\" if the Tenth Circuit's approach stood.\n\nIndependent Women, a conservative women's policy group, welcomed the order on Monday. Its [SCOTUS Snapshot](https://www.independentwomen.com/2026/11/09/scotus-snapshot-roybal-v-griffith/) said the Constitution \"does not automatically require government institutions to disregard biological sex or create exceptions based on gender identity, particularly when the safety and privacy of women are at stake.\"\n\n## Griffith's argument: the ruling was narrow and the facts are untested\n\nGriffith's lawyers have argued from the start that the case is less sweeping than the sheriff describes. Their brief in opposition said that \"nothing about the decision below imperils prisons' or jails' abilities to segregate facilities based on sex.\" They said the Tenth Circuit applied intermediate scrutiny because the county had conceded it applied and \"never raised\" the Turner theory until a dissenting judge did. \"All the Tenth Circuit held,\" they wrote, \"is that, under the generous standards of Rule 12(b)(6), Ms. Griffith plausibly alleged an equal protection claim and claims relating to an abusive cross-gender search.\" The county, they added, would \"have a chance to raise these arguments on remand as this case proceeds to discovery.\"\n\nThat framing will matter on remand. Skrmetti and B.P.J. concerned laws passed by state legislatures about medical treatment and school sports. Neither addressed jails, and neither addressed a claim built partly on alleged sexual abuse by a guard. Griffith's side is likely to argue on remand that the Fourth Amendment search claim, which turns on how a particular search was carried out, is distinct from any challenge to a housing classification. The Justice Department's brief disputes that, describing the search claim as one for \"special treatment\" that the new precedents also foreclose.\n\nGriffith's position also draws on a federal rule written for exactly this setting. The Prison Rape Elimination Act standards, at [28 C.F.R. § 115.42](https://www.ecfr.gov/current/title-28/chapter-I/part-115/subpart-A/subject-group-ECFR4d20a6b1d0cd8a6/section-115.42), require covered agencies, \"in deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates,\" to \"consider on a case-by-case basis whether a placement would ensure the inmate's health and safety, and whether the placement would present management or security problems.\" The same rule says an inmate's \"own views with respect to his or her own safety shall be given serious consideration.\" Her brief cites the regulation; the county's position is that a uniform sex-based rule is a permissible way to run a jail regardless.\n\n## What federal survey data show about risk in custody\n\nBoth sides invoke safety, and the best national data on the risk transgender inmates themselves report are dated. The Bureau of Justice Statistics' National Inmate Survey asked inmates about sexual victimization in three waves between 2007 and 2012. In [supplemental tables published in December 2014](https://bjs.ojp.gov/content/pub/pdf/svpjri1112_st.pdf), BJS found that roughly a third of transgender inmates in each wave reported at least one incident of sexual victimization by another inmate or staff member in the prior 12 months, or since admission if shorter.\n\n```chart\ntype: column\ntitle: Share of transgender inmates reporting sexual victimization, by survey wave\nsource: [Bureau of Justice Statistics, NCJ 241399, Table 1](https://bjs.ojp.gov/content/pub/pdf/svpjri1112_st.pdf)\nsuffix: %\nnote: Self-reported incidents involving inmates or staff in the past 12 months or since admission. Sample sizes were small (52 to 129 transgender respondents per wave and facility type); standard errors ranged from 5.3 to 8.0 points.\n---\nSurvey wave | Prisons | Local jails\n2007 | 33.1 | 34.4\n2008-09 | 31.6 | 39.8\n2011-12 | 39.9 | 26.8\n```\n\nThe figures come with real limits. They rest on small samples, with standard errors of five to eight percentage points, so the wave-to-wave changes are not statistically meaningful on their own. They are self-reports. They predate the current federal policy changes by more than a decade. And they describe transgender inmates' own experiences, not the risks to women in female units that the sheriff and the state amici emphasize. No equivalent federal survey covering the period since 2012 was located for this story. The data do not resolve the legal question, which turns on the standard of review, but they explain why both sides describe the stakes in terms of sexual violence.\n\n## Where the case goes from here\n\nThe Tenth Circuit will now take the case back. It can ask for new briefing, and it may have to decide questions the first panel avoided, including whether Turner's deferential test governs sex-based prison policies at all. The Justice Department's brief noted that only two federal appeals courts have published decisions on that point since 2005. They are the Ninth Circuit in 2020 and the Eighth Circuit in 2009, and both held that Turner does not apply to sex-discrimination claims. The administration disagrees with both rulings but said the issue needs \"further percolation.\"\n\nMonday's order lands amid a run of transgender-policy cases at every level. The Supreme Court is also weighing how far federal officers can be sued for treatment in custody, the issue in the [Nielsen v. Watanabe argument over Bivens claims](/news/supreme-court-nielsen-v-watanabe-bivens-carlson-federal-prison-damages-argument-november-2026). In New Hampshire, transgender teenagers are asking a federal judge to block the federal rule ending Medicaid payment for gender-transition care for minors, covered in [Goe v. HHS](/news/goe-v-hhs-medicaid-gender-care-rule-new-hampshire-mcauliffe-november-2026). The military has moved to separate transgender service members after the Court let that policy take effect, as reported in [the Marine Corps' decision to end service extensions](/news/marine-corps-ends-service-extensions-transgender-separations-talbott-supreme-court-november-2026). And voters in several states approved sex-based school sports measures last week, now facing their own challenges, detailed in [the Washington I-638 lawsuit and Colorado's rewrite](/news/washington-i-638-lawsuit-colorado-prop-134-135-rewrite-transgender-sports-measures-november-2026).\n\nThe unanswered question in Griffith is whether B.P.J. and Skrmetti simply end jail-housing claims like hers, as the administration says, or leave room for a detainee to prove that a particular placement or search was unconstitutional, as her lawyers will argue. The Supreme Court declined to answer it on Monday. The Tenth Circuit, whose full court split sharply the first time, will go first.","link_base":"https://567politics.com/news/supreme-court-roybal-v-griffith-transgender-jail-housing-remand-november-2026","citation_guidance":"Cite citation_url. Preserve source links, dates and qualifications. date_modified is an edit date, not proof that every claim was rechecked. 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