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What does ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
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The issue being considered by the judges is whether a Tennessee law that prohibits certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
Laws that are questioned on this basis are usually reviewed by the courts with a more lenient and deferential approach known as rational basis review. Any reasonable explanation is typically accepted, and it is likely that the state’s concern for medical safety would easily meet this standard.
However, laws that unfairly treat individuals differently based on their gender are closely examined and required to meet a higher standard of justification. States must show that these laws are significantly linked to achieving a significant goal, which can be a challenging requirement to meet.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias or differential treatment towards individuals based
Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, informed the justices that the law in question specifically considered gender.
In her writing, she explained that if a state allows an adolescent assigned male at birth to receive testosterone to live as a male, but prohibits the same treatment for an adolescent assigned female at birth, it is using a classification based on sex. This means the state must provide a strong reason for this law.
During the court session, Tennessee’s attorney general, Jonathan Skrmetti, mentioned that the state’s law does not discriminate based on gender.
He stated that there is a distinction between minors looking for drugs for gender transition and those seeking drugs for other medical reasons. This line separates boys and girls into different categories based on their reasons for seeking medication.
Ms. Prelogar recommended that the Supreme Court should consider giving greater scrutiny to distinctions made based on transgender status, but it is not expected that this argument will be successful.
According to a report from Georgetown’s Supreme Court Institute in September, there have been no new classifications triggering heightened scrutiny added by the court in many years. The report also stated that the likelihood of the court adding any new classifications now is extremely unlikely.
Adam Liptak is a journalist who reports on the Supreme Court and writes a column called Sidebar about legal news. He graduated from Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002. Learn more about Adam Liptak.
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