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What does ‘heightened scrutiny’ mean and why is it important?
Written by Adam Liptak.
Reporting live from the
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.
Laws that are questioned for this reason are usually reviewed with a lenient and respectful approach by the courts, known as rational basis review. Any reasonable explanation will typically be accepted, and it is highly likely that the state’s concern for medical safety would meet this standard.
However, laws that show bias based on gender are closely examined and require states to prove that the laws are directly linked to achieving a significant goal. This is a challenging requirement to meet.
The parties have conflicting opinions regarding whether the Tennessee law shows favoritism or bias towards a particular gender.
Elizabeth B. Prelogar, the top lawyer for the U.S. government, spoke on behalf of the Biden administration to the judges, explaining that the law in question specifically considered gender.
For instance, if a state prevents a female assigned at birth adolescent from getting testosterone to transition to a male, but permits a male assigned at birth adolescent to undergo the same treatment, then the state is using gender as a basis for its decision and must provide a strong reason for this law.
During a court session, Tennessee’s attorney general, Jonathan Skrmetti, stated that the state’s law does not differentiate based on sex.
The author highlighted the distinction between minors seeking drugs for gender transition and minors seeking drugs for other medical reasons. He noted that both boys and girls can be found on either side of this distinction.
Ms. Prelogar suggested that the Supreme Court should consider subjecting distinctions based on transgender status to stricter review, 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 receive close scrutiny from the court in many years. The report states that the chances of the court adding new classifications now are extremely unlikely.
Adam Liptak is a journalist who reports on the Supreme Court and writes a column called Sidebar about legal news. He attended Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002. For further information on Adam Liptak, please visit his page.
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