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What does ‘heightened scrutiny’ mean and why is it important?
Written by Adam Liptak
Reporting live from the
The issue being considered by the justices is whether the 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 for not meeting a rational basis are usually examined with a less strict and respectful judicial review known as rational basis review. Almost any reason will be considered acceptable, and it is widely believed that the state’s interest in medical safety would easily pass this test.
However, laws that show bias based on gender are closely examined, going through a more rigorous review process where states must prove that the laws are significantly linked to reaching an important goal. This is a significant challenge.
However, the two sides have differing opinions on whether the Tennessee law shows bias or prejudice against a particular gender.
Elizabeth B. Prelogar, who is the solicitor general for the United States and represents the Biden administration, explained to the judges that the law in question specifically considers gender.
In this scenario, she explained that if a state prevents a biologically female adolescent from taking testosterone to transition to male, but permits a biologically male adolescent to undergo the same treatment, then the state is using gender as a basis for its decision and must provide a strong justification for this law.
During the court proceedings, Jonathan Skrmetti, who serves as Tennessee’s attorney general, stated that the state’s law does not contain any distinctions based on gender.
The author explained that there is a distinction made between minors who are looking for drugs to help with gender transition and minors who are seeking drugs for other medical reasons. He pointed out that both boys and girls can be found on either side of this distinction.
Ms. Prelogar suggested to the Supreme Court that discrimination based on transgender status should be closely examined, but it is unlikely 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 the list that require closer scrutiny by the court 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 focuses on the Supreme Court and writes a column called Sidebar about legal news. He went to 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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