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What does the term ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
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The justices are considering 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 evaluated with a less strict and respectful judicial review known as rational basis review. Any reasonable explanation is usually accepted, and it is likely that the state’s interest in medical safety would easily meet that standard.
However, laws that show bias based on gender are subjected to increased scrutiny, a more rigorous form of evaluation that necessitates states to prove that the laws are closely connected to achieving a significant goal. This presents a significant challenge.
However, there is a disagreement between the parties on whether the Tennessee law shows bias based on gender.
During a court session, Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, argued that the law in question considers gender as a crucial factor.
In a situation where a state prevents a young person who was born female from taking testosterone to transition to male, but permits a young person who was born male to undergo the same treatment, the state is using a gender-based classification. Therefore, the state must provide a strong justification for this law when challenged.
During a court hearing, Jonathan Skrmetti, who serves as the attorney general of Tennessee, stated that the state’s law does not contain any gender-based discrimination.
The author explained that there is a distinction made between minors who are seeking drugs for gender transition and minors who are seeking drugs for other medical reasons. This distinction applies to both boys and girls.
Ms. Prelogar recommended that the Supreme Court consider subjecting distinctions based on transgender status to a higher level of scrutiny, but it is doubtful 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 that receive special attention from the court in a long time. The chances of the court adding any new classifications now are extremely unlikely.
Adam Liptak is a journalist who reports on the Supreme Court and also 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 Times in 2002. If you want to learn more about Adam Liptak, you can find additional
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