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What is meant by ‘heightened scrutiny,’ and why is it important to understand its significance?
Written by Adam Liptak
News coverage from the
The issue being considered by the judges is whether a Tennessee law that prohibits certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
Laws that are challenged based on this reason are usually reviewed by the courts with a more lenient and deferential approach known as rational basis review. In this type of scrutiny, almost any reason provided by the state will be considered acceptable, and it is highly likely that the state’s interest in medical safety would meet this standard.
However, laws that show bias towards a specific gender are closely examined and require states to prove that these laws are significantly linked to achieving a crucial goal. This is a significant challenge.
However, the parties have differing opinions on whether the Tennessee law shows bias based on gender.
Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, explained to the judges that the law in question considers a person’s sex as a crucial factor.
In this example, the author points out that if a state prevents a person who was assigned female at birth from taking testosterone to transition to male, but allows someone assigned male at birth to do so, they are using a gender-based classification. As a result, the state must provide a strong justification for this law.
During the court proceedings, Jonathan Skrmetti, the attorney general of Tennessee, stated that the state’s law does not contain any gender-based distinctions.
He stated that there is a distinction made between minors who are looking for medications for gender transition and minors who need medication for other medical reasons. This distinction does not discriminate based on gender, as both boys and girls can fall into either category.
Ms. Prelogar advised the Supreme Court to consider subjecting distinctions based on transgender status to increased scrutiny, but it is not expected that this argument will be successful.
According to a report released in September by Georgetown’s Supreme Court Institute, there has been no new categories added to trigger increased scrutiny by the court in many years. The report also suggests that the chances of the court adding new categories 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 went to Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002. Learn more about Adam Liptak.
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