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What does ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
Writing from the nation
The issue being considered by the judges is whether a specific law in Tennessee that prohibits certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
When laws are questioned on this basis, they are usually reviewed by the courts with a more lenient and respectful approach known as rational basis review. Any reason provided for the law will likely be accepted, and it is highly likely that the state’s claim of interest in medical safety would pass this test with no issues.
However, laws that treat people differently based on their gender are closely examined and require states to show that they are significantly connected to achieving an important goal. This is a significant challenge.
The two sides have conflicting opinions 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 represents the Biden administration, explained to the judges that the law being disputed had to consider gender.
For instance, if a state bars a young person who was labeled female at birth from taking testosterone to transition to male, but permits a young person identified as male at birth to undergo the same treatment, the state is using a gender-based distinction. Therefore, the state must provide a compelling reason for its law when facing increased scrutiny.
During a court session, Jonathan Skrmetti, who serves as Tennessee’s attorney general, stated that the state’s law does not discriminate based on sex.
The author stated that there is a distinction made between minors seeking drugs for gender transition and minors seeking drugs for other medical reasons. Both boys and girls can be found on either side of this distinction.
Ms. Prelogar recommended that the Supreme Court should consider applying a higher level of scrutiny to distinctions made based on transgender status, but it is not expected that this argument will succeed.
According to a report from Georgetown’s Supreme Court Institute in September, the court has not expanded the list of classifications that receive extra scrutiny in many years. The report stated that the chances of the court doing so now are extremely unlikely.
Adam Liptak is a journalist who reports on news related to the Supreme Court and also writes a column called Sidebar about legal updates. He graduated from Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002. To learn more about Adam Liptak, click here.
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