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What does the term ‘heightened scrutiny’ mean and why is it significant?
Written by Adam Liptak
Reporting from the capital
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.
When laws are questioned for this reason, they are usually reviewed by judges with a more lenient and deferential approach known as rational basis review. Any reason given for the law will typically be accepted, and it is widely believed that the state’s interest in medical safety would easily meet this standard.
However, laws that show bias towards a specific gender are closely examined and require states to prove that they are significantly related to achieving an important goal. This poses a significant challenge.
However, the parties have conflicting views on whether the Tennessee law shows bias or prejudice based on gender.
During a court session, Elizabeth B. Prelogar, the U.S. solicitor general, spoke on behalf of the Biden administration. She explained to the judges that the law in question specifically considered gender in its implementation.
In this scenario, if a state prevents a female-born adolescent from taking testosterone to transition to a male, while allowing a male-born adolescent to do the same, the state is using a gender-based distinction. Therefore, the state must provide a strong reason for their law under closer examination.
During a court hearing, Jonathan Skrmetti, who serves as the attorney general of Tennessee, stated that the state’s law does not involve any distinctions based on gender.
The author mentioned that there is a distinction between minors who are looking for drugs for gender transition and minors who are seeking drugs for different medical reasons. Both boys and girls can fall into either category.
Ms. Prelogar recommended to the Supreme Court that discrimination based on transgender status should be given closer scrutiny, but it is doubtful that her 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 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 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. Learn more about Adam Liptak.
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