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What is the concept of ‘heightened scrutiny’ and why is it significant?
Written by Adam Liptak
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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 questioned on this basis are usually reviewed by the courts with a more lenient and respectful approach known as rational basis review. Any reasonable explanation for the law will be accepted, and it is highly likely that the state’s interest in medical safety would easily meet this standard.
However, laws that show bias towards a specific gender are closely examined and require states to prove that the laws are significantly related to achieving an important goal. This is a significant challenge for states to overcome.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias or prejudice based on gender.
During a court session, Elizabeth B. Prelogar, who serves as the U.S. solicitor general for the Biden administration, explained to the judges that the law in question had to consider gender as a key factor.
In her writing, she explained that if a state allows adolescent assigned males at birth to receive testosterone treatment to transition to a male gender, but prohibits adolescent assigned females at birth from receiving the same treatment, it is using a sex-based classification. In this case, the state must provide a strong justification for its law under closer scrutiny.
During a court session, Jonathan Skrmetti, who is the attorney general of Tennessee, mentioned that the state’s law does not discriminate based on gender.
The author mentioned that there is a distinction between minors looking for drugs to transition genders and minors seeking drugs for different medical reasons. This differentiation includes both boys and girls.
Ms. Prelogar recommended that the Supreme Court should consider giving extra attention to cases that involve discrimination based on transgender status, but it is not expected 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 trigger heightened scrutiny in the court for many years. The report also mentioned that the chances of the court adding new classifications now are extremely unlikely.
Adam Liptak is a journalist who covers the Supreme Court and writes a column called Sidebar, focusing on legal updates. He attended 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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