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What does it mean to subject something to "heightened scrutiny," and why is this important?
Written by Adam Liptak
Writing from the capital
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 lenient and respectful approach known as rational basis review. Any reason provided is usually considered acceptable, and it is highly likely that the state’s concern for medical safety would meet this standard.
However, laws that show bias towards a specific gender are closely examined and held to a higher standard of review. States must prove that these laws are directly linked to achieving a significant goal. This can be a challenging requirement to meet.
However, there is a disagreement between the parties regarding whether the Tennessee law shows discrimination based on gender.
During a court hearing, 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 allows an adolescent assigned male at birth to receive testosterone treatment to live as a male, but prohibits an adolescent assigned female at birth from receiving the same treatment, then the state is using a gender-based classification. Therefore, the state must provide a strong justification for this law.
During a legal session, Jonathan Skrmetti, who serves as the attorney general for Tennessee, mentioned to the judges that the state’s law does not involve any discrimination based on gender.
The author stated that there is a distinction made between minors who are looking for drugs for gender transition and minors who are looking for drugs for other medical reasons. Both boys and girls can be found on either side of this distinction.
Ms. Prelogar recommended to the Supreme Court that discrimination based on transgender status should be reviewed more closely, but it is unlikely that this argument will succeed.
A recent report from Georgetown’s Supreme Court Institute mentioned that there have been no new classifications added to trigger heightened scrutiny in many years. The report also stated that the chances of the court adding any new classifications now are extremely unlikely.
Adam Liptak is a journalist who specializes in covering news related to the Supreme Court and writes a column called Sidebar that focuses on legal changes and updates. He graduated from 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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