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What does ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
Writing from the capital
The justices are currently 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 based on this reasoning usually undergo a less strict judicial review known as rational basis review. Any rationale is typically considered acceptable, and it is likely that the state’s claim of interest in medical safety would meet this standard.
Laws that show bias towards a specific gender are closely examined with heightened scrutiny, which is a more rigorous review process that requires states to prove that the laws are significantly connected to achieving an important goal. This poses a significant challenge.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias or prejudice towards a particular gender
Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, informed the judges that the law in question specifically considered gender as a factor.
In her writing, she explained that if a state allows an adolescent who was assigned male at birth to receive testosterone treatment to transition to a female, but does not allow an adolescent assigned female at birth to receive the same treatment to transition to a male, then the state is using a sex-based classification. This means that the state must provide a strong justification for this law.
During the court proceedings, Jonathan Skrmetti, who serves as the attorney general for Tennessee, explained that the state’s law does not make any distinctions based on gender.
The author pointed out that there is a distinction between minors seeking drugs for gender transition and minors seeking drugs for other medical reasons. He mentioned that both boys and girls can be found on either side of this distinction.
Ms. Prelogar recommended that the Supreme Court should consider giving special attention to cases involving discrimination 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 added to trigger heightened scrutiny in the court for many years. The report stated that the chances of the court adding any new classifications now are extremely unlikely.
Adam Liptak is a journalist who focuses on covering news related to the Supreme Court and he also writes a regular column called Sidebar which discusses legal updates. Before starting his career at The Times in 2002, he spent 14 years practicing law after graduating from Yale Law School.
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