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What does it mean when something is subject to ‘heightened scrutiny’ and why is this important to understand?
Written by Adam Liptak
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The justices are considering whether a Tennessee law that prohibits certain medical treatments for transgender minors is in violation of the equal protection clause of the Constitution.
Laws that are questioned on this basis are usually reviewed by the courts with a lenient and deferential approach known as rational basis review. Just about any reason can be acceptable, and it is highly likely that the state’s claim of interest in medical safety would meet this standard.
However, laws that treat people differently based on their gender are closely examined and held to a higher standard, requiring states to show that these laws are directly related to achieving a significant goal. This can be a difficult requirement to meet.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias or prejudice based on gender.
During a court session, Elizabeth B. Prelogar, who is the U.S. solicitor general and representing the Biden administration, explained to the judges that the law in question specifically considered gender.
She explained that if a state prevents a young person who was born female from taking testosterone to transition to male, but allows a young person who was born male to take the same treatment, then the state is using gender as a basis for discrimination and must provide a strong rationale for its law.
During a court session, Jonathan Skrmetti, who serves as the attorney general for Tennessee, stated that their state law does not have any classification based on sex.
The author discussed how there is a distinction between minors who are seeking drugs for gender transition and those seeking drugs for other medical reasons. They pointed out that both boys and girls can fall into either category.
Ms. Prelogar suggested to the Supreme Court that discrimination based on transgender status should be closely examined, but it is not likely 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 to trigger heightened scrutiny in the court for many years. The chances of this changing now are extremely unlikely.
Adam Liptak is a journalist who reports on the Supreme Court and writes a column called Sidebar, which focuses on legal news. He attended Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002. To learn more about Adam Liptak, click here.
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