The Supreme Court opened its Monday order list by granting certiorari in Roybal v. Griffith, vacating the Tenth Circuit's judgment, and remanding the case for further consideration in light of two recent decisions: West Virginia v. B.P.J. and United States v. Skrmetti. The case involves a transgender woman's challenge to sex-based policies at a Colorado county jail, including her housing assignment, access to commissary items, and a cross-gender strip search.
The order is a grant, vacate, and remand, usually called a GVR. It is not a decision on the merits. The Court did not hear argument, did not resolve the constitutional questions, and did not adopt either party's position. It told the Tenth Circuit to look at the case again through the lens of the Court's recent transgender rulings. That is a narrower action than a full review, but it changes the terms of the remand and signals that the lower court's reasoning no longer stands on its own.
The case
Darlene Griffith was detained at the El Paso County Jail in Colorado in 2020. She is a transgender woman. According to the Tenth Circuit's 2025 opinion, she challenged jail policies that classified inmates by genitalia, including a male housing assignment and the denial of commissary items available to women. She also alleged that a male deputy conducted a cross-gender visual body-cavity search and made lewd comments during it.
A divided Tenth Circuit panel revived part of her case. The panel held that her equal-protection challenge to the sex-based policies was subject to heightened scrutiny under United States v. Virginia, the case that governs sex classifications, rather than the more deferential standard from Turner v. Safley, which applies to many prison regulations. The panel did not decide whether transgender status itself is a suspect classification. It also allowed her abusive-manner strip-search claim to proceed, while granting qualified immunity on the theory that cross-gender searches are unconstitutional as a category, because the law was not clearly established for transgender detainees.
The full Tenth Circuit declined to rehear the case over the dissent of three judges. Sheriff Joseph Roybal then petitioned the Supreme Court, raising two questions: whether heightened scrutiny or Turner deference governs transgender inmates' challenges to sex-based jail policies, and whether a rule barring cross-identified-gender strip searches conflicts with Bell v. Wolfish and Florence v. Board of Chosen Freeholders.
The split and the GVR
The circuits are divided on the standard of review. The Eighth, Ninth, and Tenth Circuits have applied heightened scrutiny to sex-based policies that affect transgender inmates. The Second, Fourth, and D.C. Circuits have applied Turner deference. The Supreme Court had not resolved the conflict.
The difference between the two standards is not academic. Heightened scrutiny requires the government to show that a sex-based classification serves important governmental objectives and is substantially related to those objectives. Turner deference is more forgiving: a prison regulation is valid if it is reasonably related to legitimate penological interests, even if it is not the least restrictive means. Under Turner, courts defer to jail administrators. Under heightened scrutiny, the jail must justify the classification with evidence.
The cert petition was filed in October 2025. Griffith's brief in opposition urged the Court to deny. Kansas and other states filed an amicus brief supporting the sheriff. In June 2026, the Court invited the Solicitor General to file views. The United States filed its brief in September, recommending a GVR rather than a full grant. The case was distributed for the November 6 conference, and the Court issued the GVR on November 9.
The Court followed the recommendation. The order says the petition is granted, the judgment is vacated, and the case is remanded to the Tenth Circuit for further consideration in light of West Virginia v. B.P.J. and United States v. Skrmetti.
A GVR is a common procedural tool. It does not mean the Court has decided the case. It means the lower court must reconsider its judgment under a new legal framework. The Tenth Circuit could reaffirm its earlier ruling on a different footing, narrow it, or reverse. The parties will likely file supplemental briefs on how B.P.J. and Skrmetti apply to jail policies. The district court may then revisit the remaining claims.
A GVR is not a victory for either side. It does not mean the Court thinks the Tenth Circuit was wrong. It means the Court wants the lower court to consider the new decisions. The Tenth Circuit could conclude that B.P.J. and Skrmetti do not change its analysis because those cases involved sports and medical care, not detention. It could also conclude that they require a more deferential standard. The order leaves both paths open.
What the recent decisions say
West Virginia v. B.P.J. upheld state laws that limit girls' and women's sports teams to biological females. The Court held that the laws classify by sex and survive intermediate scrutiny because the states' interests in safety and competitive fairness are important and the biological-sex line is substantially related to those interests. The Court said the laws classify by biological sex, not transgender status, and it declined to decide the standard of review for gender-identity classifications.
United States v. Skrmetti upheld Tennessee's ban on puberty blockers, hormone therapy, and surgery for minors with gender dysphoria. The Court treated the law as classifying by age and medical use, not sex or transgender status, and applied rational-basis review. It did not decide whether transgender status is a quasi-suspect class.
Neither decision involved prisons. Neither decision held that Turner deference applies to transgender inmates' equal-protection claims. The GVR asks the Tenth Circuit to consider whether the reasoning of those cases changes its conclusion that heightened scrutiny applies to the jail's sex-based policies. That is a question the lower court will have to answer, and the answer is not dictated by the two decisions.
The arguments
The sheriff's argument is grounded in the deference courts traditionally give prison administrators. Jail policies on housing, searches, and commissary items are adopted for safety, privacy, and order. Courts are not well positioned to second-guess those judgments, and Turner requires only a reasonable relationship to legitimate penological interests. The sheriff also argues that the cross-gender search rule is consistent with Bell v. Wolfish and Florence, which recognize the need for security and hygiene in detention.
Griffith's argument is grounded in equal protection. The jail's policies classify inmates by sex on their face, and sex classifications normally receive heightened scrutiny. She argues that the county conceded intermediate scrutiny applied in the lower court and that the Turner theory was raised only by the dissent. She also argues that the abusive search violated the Fourth and Fourteenth Amendments regardless of the standard, and that the Tenth Circuit properly allowed that claim to proceed.
The Supreme Court did not resolve either argument. The GVR may give the Tenth Circuit an opportunity to reconsider the standard without deciding the ultimate question. It may also produce a new appellate decision that other circuits will cite.
The practical reach
The Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. A decision on the standard of review will affect how jails in those states defend sex-based policies and how courts evaluate challenges to them. It will also affect transgender detainees beyond the Tenth Circuit if other courts adopt its reasoning.
The policies at issue are common. Jails classify inmates by sex for housing, searches, and commissary access. A ruling on the standard of review would affect how those policies are drafted and defended. It would also affect the evidence jails must produce. Under Turner, a jail can rely on general safety concerns. Under heightened scrutiny, it needs a stronger record.
The case is one of several in which the Court's recent transgender decisions are being applied outside the context in which they arose. B.P.J. was about sports. Skrmetti was about medical care for minors. The GVR suggests that the Court sees those decisions as relevant to prison policy, even though neither case addressed it. The lower court will have to explain how far the reasoning extends.
The order also leaves the strip-search question open. The Tenth Circuit granted qualified immunity on the categorical cross-gender-search theory but allowed the abusive-manner claim to proceed. The Supreme Court did not address either holding. The remand will focus on the standard of review for the sex-based policies, not the search itself, unless the parties raise it again.
The search claim is a reminder that the case is not only about the standard of review. Griffith alleged that the manner of the search was abusive, and the Tenth Circuit allowed that theory to proceed. If the case returns to the district court, the search claim may continue even if the equal-protection claim is narrowed. The GVR does not resolve it.
What to watch
The Tenth Circuit will issue a new decision after supplemental briefing. Watch whether it keeps heightened scrutiny, adopts Turner deference, or creates a narrower rule for particular policies. Watch, too, whether it distinguishes B.P.J. and Skrmetti on the ground that those cases involved sports and medical care, not detention.
The case may return to the Supreme Court if the Tenth Circuit's new decision creates a clearer conflict or if the parties seek review again. The Court's broader transgender docket is still developing, and the GVR is a signal that the justices are watching how lower courts apply B.P.J. and Skrmetti.
The order is one paragraph. It does not decide whether the jail's policies are constitutional. It decides that the Tenth Circuit has to look at them again, with the Court's recent decisions in hand. That is a small procedural step with a larger practical reach.
Primary sources
- The Supreme Court's Nov. 9, 2026 order list for the grant, vacatur, and remand in Roybal v. Griffith.
- The Supreme Court docket in Roybal v. Griffith, No. 25-442, for the case posture and counsel.
- The Solicitor General's Sept. 25, 2026 amicus brief recommending a GVR in light of West Virginia v. B.P.J. and United States v. Skrmetti.
- SCOTUSblog's case page for Roybal v. Griffith and its coverage of West Virginia v. B.P.J.
- Colorado Politics for the Tenth Circuit's 2025 decision and the en banc vote.
- The Tenth Circuit's opinion in Griffith v. El Paso County, Colorado, No. 23-1135, for the facts and holdings.