                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 DAVID SCOTT HARRISON,                              No. 17-16823
               Plaintiff-Appellant,
                                                      D.C. No.
                      v.                           1:16-cv-07103-
                                                        NJV
 SCOTT KERNAN; JEFFREY A. BEARD,
            Defendants-Appellees.                     OPINION

        Appeal from the United States District Court
           for the Northern District of California
        Nandor J. Vadas, Magistrate Judge, Presiding

             Argued and Submitted July 13, 2020
                 San Francisco, California

                      Filed August 21, 2020

     Before: Eugene E. Siler, * Richard C. Tallman, and
           Danielle J. Hunsaker, Circuit Judges.

                   Opinion by Judge Tallman




    *
      The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2                     HARRISON V. KERNAN

                          SUMMARY **


                      Prisoner Civil Rights

    The panel vacated the district court’s summary judgment
in favor of defendant prison officials in an action brought
pursuant to 42 U.S.C. § 1983 by a California prisoner who
alleged that prison officials discriminated against him based
on his male gender by not allowing him to purchase certain
prison vendor products available only to female inmates.

    The panel first held that plaintiff sufficiently
demonstrated that he had standing to bring his equal
protection challenge to the Department’s regulation
governing inmates’ personal property. The panel then held,
following the lead of at least two sister circuits, and mindful
of the deference owed to prison officials in light of the
special difficulties that arise in the prison context, that
intermediate scrutiny applies to claims challenging prison
regulations which facially discriminate on the basis of
gender.

    In vacating the district court’s summary judgment, the
panel noted that this Circuit had not yet established
intermediate scrutiny as the applicable standard at the time
the district court reviewed the regulation at issue in this case.
The panel therefore remanded so that the district court could
determine in the first instance whether the Department’s
regulation survived intermediate scrutiny, bearing in mind
that gender-based distinctions must be rooted in reasoned

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                    HARRISON V. KERNAN                         3

analysis by policymakers, rather than the mechanical
application of traditional, often inaccurate assumptions
about gender.


                         COUNSEL

Samir Deger-Sen (argued) and Adam J. Tuetken, Latham &
Watkins LLP, Washington, D.C., for Plaintiff-Appellant.

Joshua Patashnik (argued), Deputy Solicitor General; Kristin
A. Liska, Associate Deputy Solicitor General; Preeti K.
Bajwa, Deputy Attorney General; Misha D. Igra,
Supervising Deputy Attorney General; Edward C. DuMont,
Solicitor General; Xavier Becerra, Attorney General; Office
of the Attorney General, San Francisco, California; for
Defendants-Appellees.


                          OPINION

TALLMAN, Circuit Judge:

    This case requires us to decide what level of scrutiny
should be applied to equal protection challenges of prison
regulations which facially discriminate on the basis of
gender. Following the lead of at least two of our sister
circuits, and mindful of the deference owed to prison
officials in light of the special difficulties that arise in the
prison context, we conclude that intermediate scrutiny
applies to such claims. Because we had not yet established
intermediate scrutiny as the applicable standard at the time
the district court reviewed the regulation at issue in this case,
we follow our normal practice of remanding to the district
4                      HARRISON V. KERNAN

court to determine in the first instance whether Defendants
have met the standard we outline today.

                                   I

                                   A

    Plaintiff David Scott Harrison is a California state
prisoner housed in San Quentin State Prison, California’s
oldest and best-known correctional institution. In 2016,
Harrison, proceeding pro se, filed a civil rights suit in
California superior court against two now-former secretaries
of the California Department of Corrections and
Rehabilitation (“CDCR” or “the Department”), Scott Kernan
and Jeffrey Beard. In his complaint, brought under
42 U.S.C. § 1983, Harrison alleged that CDCR Secretary
Kernan and his predecessor Secretary Beard discriminated
against him based on his male gender by not allowing him to
purchase certain prison vendor products available only to
female inmates. 1 The Department removed the action to
federal court.

    Before further describing the procedural history of
Harrison’s suit, an explanation of the regulations under
which California manages its inmate personal property
regime is necessary. The following recitation of the history
and specifics of the regulation Harrison challenges is drawn
from the record developed over the course of summary
judgment proceedings in the district court as well as the

    1
      Harrison sued Kernan and Beard in their individual capacities for
purposes of his damages claim and in their official capacities for
purposes of his claim for injunctive relief. The current CDCR Secretary,
Ralph Diaz, is the relevant party for Harrison’s injunctive relief claim.
See Fed. R. App. P. 43(c)(2). The Department is litigating this case on
behalf of all of the defendants.
                       HARRISON V. KERNAN                               5

administrative record supplied to us on appeal via the
Department’s motion to take judicial notice. 2

                                   B

    Title 15 of the California Code of Regulations outlines
the procedures for determining the personal property that
may be purchased from various contracted vendors by
California state prison inmates at their own expense. See
Cal. Code Regs. tit. 15, § 3190. The Standardized
Procedures Unit of CDCR’s Division of Adult Institutions
oversees and administers the inmate property regime and
develops Authorized Personal Property Schedules
identifying allowable property an inmate may acquire and
possess. Id. Until 2007, the Department maintained a single
personal property schedule that applied to imprisoned men
and women alike, regardless of security level or institution
mission. 3 Five new schedules were proposed in August
2007 and finalized in May 2008. Those schedules
corresponded to different categories of institutions housing
adult inmates and, because imprisoned women in California
are housed at separate institutions from imprisoned men,
necessarily included a separate schedule for female offender
programs.


     2
       We grant the Department’s unopposed motion to take judicial
notice, as well as Harrison’s request that we take judicial notice of the
relevant regulatory history of the challenged prison regulation set forth
in Greene v. Tilton, No. 2:09-cv-00793-JAM JFM, 2012 WL 691704
(E.D. Cal. Mar. 2, 2012).

    3
      The pre-2007 property schedule did distinguish between certain
items of clothing and hygiene items available to imprisoned women but
not imprisoned men. For example, only women could purchase
brassieres and panties, as well as certain hair care products and make up.
6                      HARRISON V. KERNAN

    Revised again in 2014, each property schedule now
corresponds to a security-driven categorization of inmates:
1) male reception center inmates; 2) Level I, II, and III male
inmates in general population; 3) Level IV male inmates in
general population; 4) male inmates in Administrative
Segregation, Secure Housing, or Psychiatric Service Units;
and 5) female inmates. Within each schedule, the type and
amount of property an inmate is permitted is further
determined by the inmate’s privilege group. 4

    Items whose availability depends at least in part on
inmate gender include, inter alia: products that contain small
metal pieces or otherwise may be used as a weapon, such as
hair dryers and electric curling irons, as well as bath robes,
scarves, kimonos, and bath towels, which could be used for
strangulation; clothing, such as denim jeans, that “would
allow [inmates] to blend in with the general public” and thus
could be used to disguise escaped prisoners; sugary foods
that could be used to make an alcoholic beverage known as
“pruno”; and items which the Department claims could give
rise to disputes over gambling or money, such as necklaces
and bracelets, as well as the card game Uno. For the purpose
of this appeal, it is undisputed that under the current property

    4
        There are four security classification levels for inmates in
California prisons, with Level IV inmates posing the highest security
risk. See Cal. Code Regs. tit. 15, § 3377. An inmate’s classification
level is assigned upon admission based on multiple factors. It is
undisputed that the Department uses an identical methodology to
determine the security classification of male and female inmates, as well
as to determine their privilege groups. See id. § 3375 (“The
classification process shall be uniformly applied, commencing upon
reception of a person committed to the custody of the Secretary and shall
continue throughout the time the individual remains under the
Secretary’s jurisdiction.”); § 3044 (code section governing inmate
privilege group classifications, making no mention of, or otherwise
distinguishing between inmates based on, gender).
                       HARRISON V. KERNAN                                7

regulation female inmates of the highest security
classification housed in general population have access to
more personal property than male inmates in the lowest
security classification housed in general population.

                                    C

    After removing Harrison’s suit to federal court, the
Department moved for summary judgment. In support of its
motion it submitted a nine-page declaration by Captain
Bickham, commanding officer of the Department’s
Standardized Procedures Unit, as well as copies of the
challenged regulation, the Department’s Operations Manual,
the property schedules, and two pages of COMPSTAT
statistics from 2015. 5 Captain Bickham’s declaration also
referenced and provided a link to a 2012 study by the
National Gang Crime Research Center. Harrison, still
proceeding pro se, opposed summary judgment in part on the
basis that he had not received sufficient responses to his
discovery requests, and asked for a continuance in order to
conduct further discovery under Fed. R. Civ. P. 56(d).

    The district court granted summary judgment in favor of
the Department and denied Harrison’s cross-motion,
including his Rule 56(d) request, without a hearing. 6 In its
order, the district court largely recited the facts set forth in
Captain Bickham’s declaration. It then turned to whether
Harrison’s identified classes of inmates—male inmates and

    5
       COMPSTAT is the name for the Department’s computerized
system for “collecting, validating, and reporting strategic and operational
performance data for business management purposes.”                     See
https://www.cdcr.ca.gov/research/compstat/.
    6
      Harrison does not challenge on appeal the district court’s Rule
56(d) ruling or other discovery orders.
8                       HARRISON V. KERNAN

female inmates of the same or greater security
classification—are similarly situated for the purpose of an
equal protection analysis. The court concluded that the
classes are not similarly situated because male and female
inmates are not housed together, the facilities housing
female inmates are generally smaller than the facilities for
male inmates, and female inmates exhibit substantially less
dangerous behavior than male inmates. Holding that
Harrison had therefore failed to show that he is treated
differently than a similarly situated group, the court went on
to find that even if imprisoned men and women were
similarly situated, Harrison still would not be entitled to
relief because, under Turner v. Safley, 482 U.S. 78, 89
(1987), the challenged regulation is “reasonably related to
legitimate penological interests.”

    Harrison timely appealed the district court’s order. After
Harrison filed his pro se opening brief and the Department
filed its answering brief, our Appellate Commissioner
appointed pro bono counsel for Harrison, ordered
replacement briefing, and directed the clerk of court to strike
the previously tendered briefs. 7 After a new round of
briefing, we heard argument and submitted the case for
decision.

                                     II

    In its original answering brief on appeal, the Department
argued that Harrison lacked standing to pursue his equal
protection claims. In its replacement (and now operative)
    7
      This particular procedural history is worth noting because after
Harrison was appointed pro bono counsel, the Department significantly
changed its litigating position on several key issues in this appeal, as will
be explained further infra. We have been greatly aided by pro bono
counsel in considering this case.
                       HARRISON V. KERNAN                               9

brief, the Department concedes that Harrison has standing to
challenge the existence of separate property schedules for
male and female inmates but maintains that he does not have
standing to challenge differences in access to any particular
items of property because “he has never sought access to any
specific item of property, and thus cannot establish that he
has suffered concrete, particularized injury as a result of the
denial of any item of property.” Appellees’ Br. at 28. We
address each of these positions in turn.8

    The “irreducible constitutional minimum” of standing
requires that a “plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.
Ct. 1540, 1547 (2016). That constitutional minimum is met
here. In his complaint, Harrison alleged that the challenged
regulation “prohibit[s him] from purchasing those vendor
products the same and equal to those vendor products
allowed to similarly situated female prisoners, as well as
allowed to those female prisoners of demonstrated greater
security risk than [Harrison].” Complaint at 4–5. Thus, he
has alleged that he is being denied “equal treatment under
law,” which is “a judicially cognizable interest that satisfies
the case or controversy requirement of Article III.” Davis v.
Guam, 785 F.3d 1311, 1315 (9th Cir. 2015). This is true
even if that equal treatment would “bring[] no tangible
benefit to the party asserting it.” Id. Accordingly, Harrison

    8
       Although the parties now agree that Harrison has Article III
standing to allege his equal protection claim at least as to the existence
of the separate property schedules, we have an “independent obligation
to assure that standing exists, regardless of whether it is challenged by
any of the parties.” Summers v. Earth Island Inst., 555 U.S. 488, 499
(2009).
10                  HARRISON V. KERNAN

has standing to challenge the existence of separate property
schedules for male and female prisoners even if he has not
tried to place an order for any specific item of property listed
only on the property schedule for females.

    The Department’s further argument that Harrison does
not have standing to challenge differences in access to any
specific items of property listed in the property schedules
unless he has actually attempted to order them appears to us
to be a red herring. In his administrative appeal through the
Department’s prison grievance system, Harrison asked “to
be authorized to order, receive, possess, and use” items
including “clothing, food, drinks, objects, [and] products”
available via the prison’s vendors “without regard to my
gender or any type of ‘women only’ restrictions.” And in his
complaint, Harrison challenged “the processes by which the
CDCR makes decisions concerning the vendor products
(e.g., clothing, drinks, objects, appliances, foods, etc.) . . .
that female prisoners are allowed versus the restricted and
limited vendor products Harrison is allowed,” and attached
vendor catalogs clearly marked to show women-only items.
Complaint at ¶ 2 & n.3 (“The specific items challenged that
Harrison is unable to purchase, but that female prisoners are
allowed to purchase, are marked for identification in [the
attached exhibits].”). As a long-term inmate subject to
California prison regulations on an ongoing basis, Harrison
presumably stands ready and willing to order women-only
items if permitted. Taken together, these facts are very likely
sufficient to demonstrate Harrison’s injury with respect to
the specific items that he is unable to order by virtue of his
gender. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 261–62
(2003) (plaintiff had standing to challenge university’s race-
conscious transfer admissions policy, despite not having
applied as a transfer student, because he showed that he was
“able and ready” to do so).
                    HARRISON V. KERNAN                       11

    Regardless, standing in this case does not turn on
whether Harrison sought or would benefit from any
particular item of women-only property. See, e.g., Ne. Fla.
Chapter of the Associated Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656, 666 (1993) (“When the
government erects a barrier that makes it more difficult for
members of one group to obtain a benefit than it is for
members of another group, a member of the former group
seeking to challenge the barrier need not allege that he would
have obtained the benefit but for the barrier in order to
establish standing.”). To conclude otherwise could lead to
the absurd result that an imprisoned man seeking to
challenge the regulation would first need to place futile
orders for every women-only product listed in the
Department’s vendor catalogs before his challenge could
proceed. That is not our view of how standing principles
apply in equal protection challenges. See Gratz, 539 U.S.
at 262 (explaining that “[t]he ‘injury in fact’ in an equal
protection case of this variety is the denial of equal treatment
from the imposition of the barrier, not the ultimate inability
to obtain the benefit” (quoting Ne. Fla. Chapter of the
Associated Gen. Contractors of Am., 508 U.S. at 666)).

    Moreover, if the Department is raising this argument
because it believes neither we nor the district court may look
in any detail at the property schedules themselves when
adjudicating this case, that argument also is unavailing. As
Harrison has pointed out, a reviewing court applying
intermediate scrutiny—which, as explained further below,
we today adopt as the applicable standard in the prison
context for gender-based equal protection claims—needs to
examine which items of property are restricted by gender as
part of its assessment of the “means-end fit” between the
challenged regulation and its purported justifications in
order to determine whether the regulation is “grossly over-
12                  HARRISON V. KERNAN

[or] under-inclusive” in violation of equal protection
principles. Latta v. Otter, 771 F.3d 456, 472 (9th Cir. 2014);
see also Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725
(1982) (requiring a “direct, substantial relationship between
objective and means”). Thus, the distinction the Department
attempts to draw between standing to challenge the
regulation and standing to challenge access to individual
items is ultimately one without a difference in this particular
case. Even where, as here, the plaintiff has not attempted to
purchase specific items, a reviewing court still must examine
the details of the property scheme when conducting the equal
protection analysis.

    In sum, we conclude Harrison has sufficiently
demonstrated that he has standing to bring his equal
protection challenge of the Department’s regulation
governing inmates’ personal property. We therefore proceed
to consider the merits of that challenge.

                               III

                               A

    “The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to any
person within its jurisdiction the equal protection of the
laws,’ which is essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting
Plyler v. Doe, 457 U.S. 202, 216 (1982)). With equal
protection claims, then, the “first step . . . is to identify the
state’s classification of groups” and then “look for a control
group . . . composed of individuals who are similarly
situated to those in the classified group in respects that are
relevant to the state’s challenged policy.” Gallinger v.
Becerra, 898 F.3d 1012, 1016 (9th Cir. 2018) (citations
                   HARRISON V. KERNAN                      13

omitted); see also Ariz. Dream Act Coal. v. Brewer, 757 F.3d
1053, 1064 (9th Cir. 2014) (“The groups need not be similar
in all respects, but they must be similar in those respects
relevant to the Defendants’ policy.”).

    The district court concluded, and the Department argued
in its original answering brief on appeal, that male inmates
and female inmates of the same or greater security
classification are not similarly situated for equal protection
purposes. Here again, the Department changed its position
after Harrison was appointed counsel, and now essentially
concedes that imprisoned men and women of the same
security classification are similarly situated for an equal
protection analysis of the challenged regulation—i.e., that
female inmates of Harrison’s security classification are an
appropriate control group. See Appellees’ Br. at 37
(explaining that the Department does “not now contend that
this Court should resolve Harrison’s appeal . . . solely by
concluding that male and female inmates are not similarly
situated to each other” as the district court did below).

    Independent of the Department’s concession, we
conclude the undisputed evidence establishes that this is so.
According to Captain Bickham, the personal property
schedules under the challenged regulation “establish
allowable property by the security levels and privilege
groups” of inmates.         And, as discussed above, the
Department uses an identical methodology to determine the
security classifications of male and female inmates, as well
as to determine their privilege groups. See supra n.4. Thus,
the only relevant difference between Harrison and an
imprisoned woman of the same security level and privilege
group, when it comes to allowable property under the
Department-wide regulation, is gender. In other words,
14                     HARRISON V. KERNAN

gender is the critical independent variable here. 9
Accordingly—and as the parties have already agreed—we
conclude that imprisoned men and women of the same
security classification subject to the challenged regulation
are similarly situated for the purpose of this case.

                                   B

     We next must decide what level of scrutiny to apply to
the challenged regulation adopting the Department’s
personal property schedules. See Cal. Code Regs. tit. 15,
§ 3190(b) (incorporating by reference the Department’s five
current property schedules). We now hold that prison
regulations such as this one, which facially discriminate on
the basis of gender, must receive intermediate scrutiny; that
is, such regulations are constitutional only if the government
demonstrates they “serve[] important governmental
objectives and that the discriminatory means employed are
substantially related to the achievement of those objectives.”
VMI, 518 U.S. at 533 (citation omitted).

    In so holding, we are acutely aware of the uniquely
difficult circumstances faced by prison officials as they work
to maintain safe conditions in the facilities they are charged

     9
        We reject the district court’s reasoning that male and female
inmates are not similarly situated because women are housed in separate
facilities. Women are housed separately because of gender, therefore,
even under the district court’s logic, gender remains the key independent
variable controlling the property that inmates of the same security
classification may possess. To conclude otherwise would be potentially
to preclude equal protection challenges in all cases where men and
women are housed separately. That is not the law. Cf. United States v.
Virginia (VMI), 518 U.S. 515, 554 (1996) (concluding that Virginia had
not shown “substantial equality in the separate educational opportunities
the Commonwealth support[ed]” at the all-male Virginia Military
Institute and the all-female Virginia Women’s Institute for Leadership).
                       HARRISON V. KERNAN                              15

with overseeing. The deference owed to judgments made by
prison officials must always be factored carefully into the
analysis of inmates’ constitutional challenges to prison
regulations, and our decision today should not be taken to
hold otherwise. As discussed further, infra, it is a
predominant factor in evaluating the strength of the state
interest the Department seeks to advance with its challenged
regulation.

                                    1

    In its order on summary judgment, the district court
applied the deferential standard announced in Turner v.
Safley to Harrison’s gender-based equal protection claim,
asking only whether the regulation governing inmate
property is “reasonably related to legitimate penological
interests.” 482 U.S. at 89. 10 In Turner, the Supreme Court
examined regulations restricting inmate marriage and
inmate-to-inmate correspondence. See id. at 85–86. The
Court acknowledged that while “federal courts must take
cognizance of the valid constitutional claims of prison
inmates,” id. at 84, “[r]unning a prison is an inordinately
difficult undertaking” presenting “intractable problems,” id.
at 84–85, 89. Employing broad language, the Court declared
that “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.



    10
        The parties now both agree that Harrison’s claim triggers a
heightened standard of review. Given that no prior Ninth Circuit
precedent addressed the appropriate standard of scrutiny afforded to
gender-based equal protection claims in the prison context, we cannot
fully fault the district court for applying the deferential Turner standard
advanced by the Department below.
16                  HARRISON V. KERNAN

    Eighteen years later, in Johnson v. California, the Court
revisited the issue, this time addressing a California
Department of Corrections policy of racially segregating
prisoners in double cells in reception centers for up to
60 days each time they entered a new correctional facility.
543 U.S. 499, 502 (2005).               Although the Court
acknowledged the Department’s need “to prevent violence
caused by racial gangs,” id., it explained that “all racial
classifications [imposed by government] . . . must be
analyzed by a reviewing court under strict scrutiny” in order
to “smoke out illegitimate uses of race by assuring that the
[government] is pursuing a goal important enough to warrant
use of a highly suspect tool,” id. at 506 (citation omitted).

    Addressing the apparent conflict with Turner, the Court
reasoned that Turner’s reasonable-relationship test applies
“only to rights that are ‘inconsistent with proper
incarceration.’” Id. at 510 (quoting Overton v. Bazzetta,
539 U.S. 126, 131 (2003)). Thus, while some “privileges
and rights” such as speech, freedom of association, and
personal liberty “must necessarily be limited in the prison
context[,] . . . [t]he right not to be discriminated against
based on one’s race. . . is not a right that need necessarily be
compromised for the sake of proper prison administration.”
Id. Rather, the Court explained, “[i]n the prison context,
when the government’s power is at its apex, . . . searching
judicial review of racial classifications is necessary to guard
against invidious discrimination.” Id. at 511.

    By extension—although the Supreme Court has not yet
so held—the same is true of the right not to be discriminated
against in prison based on gender. Just as with race, the
Court has repeatedly stressed that “‘all gender-based
classifications today’ warrant ‘heightened scrutiny.’” VMI,
518 U.S. at 555 (quoting J.E.B. v. Alabama ex rel. T.B.,
                       HARRISON V. KERNAN                             17

511 U.S. 127, 136 (1994)); see also Miss. Univ. for Women,
458 U.S. at 724 (stating that “the party seeking to uphold a
statute that classifies individuals on the basis of their gender
must carry the burden of showing an exceedingly persuasive
justification for the classification” (citation omitted)). And,
like distinctions based on race, which may be based on
invidious stereotypes, distinctions based on gender may be
improperly based on “archaic and stereotypic notions” or
“fixed notions concerning the roles and abilities of males and
females.” 11 Id. at 725; see also Craig v. Boren, 429 U.S.
190, 198 (1976) (statutes may not employ “gender as an
inaccurate proxy for other, more germane bases of
classification”); Pitts v. Thornburgh, 866 F.2d 1450, 1454
(D.C. Cir. 1989) (noting, in deciding to apply intermediate
scrutiny to a gender-based claim in the prison context post-
Turner but pre-Johnson, that “the Supreme Court has
indicated that a facial classification based upon gender, like
the one in this case, inherently risks several dangers that the
Equal Protection Clause . . . [is] most designed to
eradicate”).

    The Department itself recognizes these concerns, noting
in its replacement brief that the “‘purpose of requiring’
intermediate scrutiny for gender-based distinctions is to
ensure that they are rooted in ‘reasoned analysis’ by
policymakers, rather than discriminatory animus or ‘the
mechanical application of traditional, often inaccurate

    11
        Take, for example, the Department’s statement in the
administrative record explaining that female inmates are allowed more
hygiene products than male inmates in part because “[t]he Department
believes that a female inmate who feels good about how she looks is
more amenable to rehabilitation.” Absent any citation to data supporting
such an assertion, this explanation certainly sounds as though it is based
on “archaic and stereotypic notions” about the importance women may
place on their physical appearance.
18                 HARRISON V. KERNAN

assumptions’” about gender. Appellees’ Br. at 38 (quoting
Miss. Univ. for Women, 458 U.S. at 725–26). We agree.
Regulations which facially discriminate on the basis of
gender, such as the one at issue here, must receive
intermediate scrutiny in order to ensure that they do “not rely
on overbroad generalizations about the different talents,
capacities, or preferences of males and females.” VMI,
518 U.S. at 533. To the extent we have not previously made
clear that this is true even in the prison context, we do so
now.

                              2

    Although this is our first published opinion on this topic,
we have previously noted the applicability of intermediate
scrutiny to gender-based equal protection prison claims in at
least two unpublished dispositions. See, e.g., Laing v.
Guisto, 92 F. App’x 422, 423 (9th Cir. 2004) (citing VMI in
concluding that the plaintiff “failed to provide sufficient
evidence to overcome the defendant’s showing that the
cross-gender searches serve important government
objectives, and that its means are substantially related to the
achievement of those objectives”); Goldyn v. Angelone, No.
97-17185, 1999 WL 728561, at *2 (9th Cir. Sept. 16, 1999)
(“Prisoners retain the protections of the Equal Protection
Clause upon incarceration” and “[w]hen state actors
intentionally classify persons based on gender, those
classifications require an exceedingly persuasive
justification.”). Several of our prior published decisions also
have hinted at the applicability of the intermediate scrutiny
standard to gender-based equal protection claims in prisons
and jails. See, e.g., Byrd v. Maricopa Cty. Sheriff’s Dep’t,
629 F.3d 1135, 1139–40 (9th Cir. 2011) (en banc) (citing
with approval Roubideaux v. N.D. Dep’t of Corr. & Rehab.,
570 F.3d 966 (8th Cir. 2009), and Pitts—two out-of-circuit
                      HARRISON V. KERNAN                            19

cases applying intermediate scrutiny—but affirming
dismissal of equal protection claim because it was not fully
pled); Jeldness v. Pearce, 30 F.3d 1220, 1231 (9th Cir. 1994)
(recognizing disparate treatment of male and female
prisoners, but declining to reach the equal protection
question by resolving the case on statutory grounds).

    By declaring the applicable standard of scrutiny today,
we join the Eighth and D.C. Circuits, which have already
adopted intermediate scrutiny in gender-based prison cases.
See Roubideaux, 570 F.3d at 974–75; Pitts, 866 F.3d
at 1454–55. The Third and Sixth Circuits have also applied
intermediate scrutiny to such claims in unpublished
dispositions. See Dinote v. Danberg, 601 F. App’x 127, 130
(3d Cir. 2015) (“Even differential treatment is permissible,
however, if it bears a sufficient nexus to a qualifying
governmental interest; in the case of a gender classification,
the state must show that the classification ‘serves important
governmental objectives and that the discriminatory means
employed are substantially related to the achievement of
those objectives.’” (quoting VMI, 518 U.S. at 533));
Pariseau v. Wilkinson, No. 96-3459, 1997 WL 144218, at *1
(6th Cir. Mar. 27, 1997) (citing Miss. Univ. for Women,
458 U.S. at 724, and applying intermediate scrutiny to a
gender-based hair grooming policy); but see Glover v.
Johnson, 198 F.3d 557, 561 (6th Cir. 1999) (declining to
decide the appropriate level of scrutiny for equal protection
claims in the prison setting in a published opinion because
the district court properly found no disparate treatment). 12


    12
       Other circuits either have not yet decided the question, or else
have not yet taken the opportunity to address it again after the Supreme
Court offered additional guidance in Johnson v. California. For
example, the Fourth Circuit, in an unpublished disposition, affirmed
20                     HARRISON V. KERNAN

    This history assures us that in deciding this case we have
not ventured into uncharted waters. To the contrary, our
decision here not only follows the Supreme Court’s directive
that all gender-based classifications warrant heightened
scrutiny, but it is also in line with the majority of the circuits
that have published on this issue.

                                    3

    The Department cautions us, however, that when
applying intermediate scrutiny to gender-based distinctions
drawn by prison officials, we must not “disregard the special
difficulties that arise in the prison context.” Appellees’ Br.
at 38 (quoting Pitts, 866 F.2d at 1455). We agree, and like
the Department, we believe that these circumstances “can be
considered” in applying heightened scrutiny, “which is
designed to take relevant differences into account.” Id.
(quoting Johnson, 543 U.S. at 515).

    Our adoption of the intermediate scrutiny standard
“should not be read to mean that deference [to prison
officials] plays no role in prisoners’ constitutional claims.”
Harrington v. Scribner, 785 F.3d 1299, 1307 (9th Cir. 2015)

without comment a district court’s application of intermediate scrutiny
to a gender-based prison claim, see DeBlasio v. Johnson, 13 F. App’x 96
(4th Cir. 2001), but two years later applied Turner’s reasonableness
standard to another such claim in a published opinion issued before the
Supreme Court decided Johnson, see Veney v. Wyche, 293 F.3d 726, 732
(4th Cir. 2002). Similarly, after Turner but before Johnson, the Fifth
Circuit declined to decide the question of the proper legal standard in
Smith v. Bingham and appears not to have addressed the issue since.
914 F.2d 740, 742 (5th Cir. 1990) (“In the present case, we need not
decide the applicable level of scrutiny for an equal protection claim in a
prison setting. Even under the test applied to challenge gender-based
distinctions outside of the prison setting, we find no merit in Smith’s
claim that he has been denied equal protection of the laws.”).
                   HARRISON V. KERNAN                      21

(discussing the application of strict scrutiny to a race-based
prison claim). Under heightened scrutiny, the deference
owed to judgments made by prison officials is factored into
the importance of the government’s asserted interest; stated
differently, “penological interests may still factor into the
analysis of an equal protection claim” because such
considerations “properly inform whether there exists a[n
important state] interest.” Id. at 1308 (but noting that in
considering a race-based claim, those considerations “do not
excuse the narrow tailoring requirement”).

    Indeed, there is no reason to think that intermediate
scrutiny will prove fatal to gender-based prison regulations.
We have numerous examples of prison officials successfully
crafting constitutionally-sound gender-based policies. See,
e.g., Roubideaux, 570 F.3d at 974–75 (applying intermediate
scrutiny and upholding statute that provided for unequal
services at male and female prisons); Pitts, 866 F.2d
at 1462–63 (upholding under intermediate scrutiny a District
of Columbia policy of housing female inmates at a prison
farther from the District than the male prison); Dinote,
601 F. App’x at 130 (applying intermediate scrutiny and
upholding practice of transferring female arrestees to an all-
female institution within 24 hours of arrest); Pariseau, 1997
WL 144218, at *1 (upholding gender-based hair grooming
policy under intermediate scrutiny).

    Consequently, we note that it is not a forgone conclusion
that the Department’s current property schedules are
unconstitutional. Intermediate scrutiny “does not make sex
a proscribed classification,” and the Department may
ultimately be able to show that the current property
schedules are substantially related to the achievement of
important penological objectives. VMI, 518 U.S. at 533. All
that we hold today is that intermediate scrutiny, rather than
22                     HARRISON V. KERNAN

the deferential Turner standard, must be applied to decide
Harrison’s equal protection challenge.

                                    IV

    In keeping with our standard practice, we vacate the
order on summary judgment and remand so that the district
court may determine in the first instance whether the
Department’s regulation survives intermediate scrutiny.
See, e.g., United States v. Sellers, 906 F.3d 848, 855 (9th Cir.
2018) (“Because the district court applied an incorrect legal
standard, we follow our normal practice of remanding to the
district court to determine in the first instance whether [the
defendant] has met the standard we outline today.”). The
record developed by the Department below was intended to
meet Turner’s deferential standard rather than the more
stringent standard we announce today, therefore on remand
the district court should take into account the materials
included with the Department’s motion to take judicial
notice on appeal, as well as any additional materials the
parties may submit with their renewed summary judgment
papers. 13

    We recognize that both parties have urged us to fully
resolve this case based on the current record, but we decline
that invitation. On appeal, the Department has raised at least
one significant new justification in support of the regulation
that it did not raise below; namely, that the Department was
acting to remedy “historical unfairness toward female
inmates in part by giving them access to a broader array of
personal property.” Appellees’ Br. at 53. While this

     13
       The district court also should decide, in the first instance, whether
Defendants Kernan and Beard in their individual capacities are entitled
to qualified immunity from Harrison’s claims.
                       HARRISON V. KERNAN                            23

justification may well be true, and if true is certainly
laudable, it should properly be developed in district court
and then factored into the intermediate scrutiny analysis.14
See, e.g., Armstrong v. Davis, 275 F.3d 849, 874 (9th Cir.
2001) (abrogated on other grounds by Johnson, 543 U.S.
499) (government may not introduce a new penological
justification for the first time on appeal); see also Dream
Palace v. County of Maricopa, 384 F.3d 990, 1005 (9th Cir.
2004) (rule against considering new arguments for the first
time on appeal “serves to ensure that legal arguments are
considered with the benefit of a fully developed factual
record, offers appellate courts the benefit of the district
court’s prior analysis, and prevents parties from
sandbagging their opponents with new arguments on
appeal”).

    In closing, we note that at oral argument the Department
assured us that it has access to more data it can proffer in
support of its current personal property schedules. It is not
enough, under intermediate scrutiny, for the Department
only to demonstrate “empirical relationships” between
gender and the various propensities against which it seeks to
protect—in this instance, alleged male propensities towards
violence, gang membership, and escape attempts. Rather,
the Department must show that those relationships
“adequately justify the salient features of” the challenged
regulation. Craig v. Boren, 429 U.S. at 200–03 (holding that
data showing, for example, that “18–20-year-old male

    14
        Harrison points out that the evidence included with the
Department’s motion to take judicial notice does not actually support its
assertions as to this justification. See, e.g., Unopposed Motion to Take
Judicial Notice, ECF No. 46 at 86 (Department’s initial statement of
reasons, which makes no mention of remedies for past gender
discrimination or unresponsiveness to the needs of women in prison).
24                     HARRISON V. KERNAN

arrests for ‘driving under the influence’ and ‘drunkenness’
substantially exceeded female arrests for that same age
period” was inadequate to justify a law differentiating
between males and females aged 18 to 21 for the purchase
of 3.2% beer because the data failed to “measure the use and
dangerousness of 3.2% beer as opposed to alcohol
generally,” and made “no effort to relate [those] findings to
age-sex differentials as involved here”).

    Perhaps the Department can successfully justify its
property regulation by comparing the number of violent
incidents at lower security male facilities or by lower
security male prisoners with the number of violent incidents
at female prisons or by higher security female prisoners. 15
Such a comparison may well demonstrate that the
Department is justified in allowing women of the highest
security classification in general population to possess items
that men at the lowest security classification in general
population cannot. This determination will be for the district
court to make, bearing in mind that gender-based
distinctions must be rooted in reasoned analysis by
policymakers, rather than the mechanical application of
traditional, often inaccurate assumptions about gender. See
Miss. Univ. for Women, 458 U.S. at 725–26.

    The judgment of the district court is VACATED and the
case is REMANDED with instructions.




     15
       Instead, the COMPSTAT data attached to Captain Bickham’s
declaration shows only that in 2015, the total number of violent incidents
across all categories was higher in male prisons than in female prisons.
