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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 the Tennessee law, which prohibits certain medical treatments for transgender minors, goes against the equal protection clause of the Constitution.
Laws that are challenged on the basis of rationality are usually analyzed with a lenient and deferential judicial review known as rational basis review. In this type of scrutiny, almost any reason given for the law will be accepted, and it is highly likely that the state’s claim regarding medical safety would meet this standard.
However, laws that show bias based on gender undergo a more rigorous review process called heightened scrutiny, where states must prove that the laws are significantly connected to achieving a crucial goal. This presents a significant challenge.
However, the two sides have conflicting opinions on whether the Tennessee law shows bias towards a particular gender.
Elizabeth B. Prelogar, the U.S. solicitor general, who is representing the Biden administration, informed the justices that the law in question considers gender as a crucial factor.
In this scenario, if a state prevents a young person who was assigned female at birth from accessing testosterone to transition to living as a male, while allowing a young person assigned male at birth to have the same treatment, it is using a gender-based distinction. Therefore, the state must provide a strong justification for this law.
During the court session, Jonathan Skrmetti, the attorney general of Tennessee, explained to the judges that their state’s law does not make any distinctions based on gender.
The author stated that there is a distinction made between minors seeking drugs for gender transition and those seeking drugs for other medical reasons. Both boys and girls can be found on either side of this distinction.
Ms. Prelogar suggested that the Supreme Court should consider giving special attention to cases involving discrimination based on transgender status. However, it is doubtful 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 would require closer scrutiny by the court in many years. The chances of the court adding any new classifications now are extremely unlikely.
Adam Liptak writes about the Supreme Court and is the author of Sidebar, a column that discusses legal news. 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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