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What is meant by ‘heightened scrutiny’ and why is it important to understand its significance?
Written by Adam Liptak
Writing from the nation
The issue being considered by the judges is whether the Tennessee law that prohibits certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
When laws are challenged based on this reason, they typically undergo a less strict form of judicial review known as rational basis review. In this type of review, almost any reason given for the law will be accepted, and it is likely that the state’s interest in medical safety would easily meet this standard.
Laws that show bias towards a specific gender are closely examined under a more rigorous form of review called heightened scrutiny. This means that states must prove that these laws are significantly connected to achieving an important goal, which can be quite challenging.
However, the parties have differing opinions on whether the Tennessee law shows bias based on gender.
During a court hearing, Elizabeth B. Prelogar, who is the U.S. solicitor general for the Biden administration, argued that the law in question must consider gender.
In this scenario, if a state allows an adolescent assigned male at birth to receive testosterone to transition to a female, but prohibits an adolescent assigned female at birth from receiving the same treatment, it is using a sex-based classification. As a result, the state must provide a strong justification for this law.
During a court session, Jonathan Skrmetti, who is the attorney general of Tennessee, mentioned that the law in his state does not make any distinctions based on sex.
He explained that there is a distinction made between minors who are obtaining drugs for gender transition and minors who are getting drugs for other medical reasons. This distinction applies to both boys and girls.
Ms. Prelogar recommended that the Supreme Court consider applying closer scrutiny to distinctions made based on transgender status, but it is unlikely that this argument will be successful.
According to a report from Georgetown’s Supreme Court Institute in September, there have been no new classifications added that would require closer scrutiny by the court in many years. The report also stated that the chances of the court adding any new classifications for heightened scrutiny now are extremely unlikely, to the point of being impossible.
Adam Liptak is a journalist who specializes in covering news related to the Supreme Court and writes a column called Sidebar focusing on legal updates. He attended Yale Law School and worked as a lawyer for 14 years before starting his career at The New York Times in 2002.
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