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What does the term ‘heightened scrutiny’ mean and why is it important?
Written by Adam Liptak
Writing from the nation
The justices are currently 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 on this basis are usually examined by courts with a more lenient and deferential approach known as rational basis review. Any reasonable explanation will be accepted, and it is highly likely that the state’s claim of interest in medical safety would meet this standard.
However, laws that show bias towards a specific gender are closely examined under a more rigorous review process that necessitates states to prove that the laws are significantly connected to accomplishing a crucial goal. This can be a challenging obstacle to overcome.
However, there is a disagreement between the parties on whether the Tennessee law shows bias or prejudice based on gender.
Elizabeth B. Prelogar, who serves as the U.S. solicitor general for the Biden administration, argued to the justices that the law in question inherently considers gender.
She mentioned that if a state bans a female adolescent from taking testosterone to transition to male, but allows a male adolescent to do the same, it is using a gender-based classification and must provide a strong justification for its law.
During the court proceedings, Jonathan Skrmetti, who serves as Tennessee’s attorney general, stated that the state’s law does not discriminate based on gender.
The author mentioned that there is a distinction between minors who are looking for drugs to transition genders and minors who are seeking medications for different medical reasons. He explained that both boys and girls can be found on either side of this distinction.
Ms. Prelogar recommended that the Supreme Court should consider giving extra attention to cases involving discrimination based on transgender identity, although 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 the list that require closer scrutiny in many years. The report also mentioned that it is highly unlikely for the court to add any new classifications at this time.
Adam Liptak is a journalist who specializes in covering news related to the Supreme Court and also writes a column called Sidebar which focuses on legal developments. He attended Yale Law School and worked as a lawyer for 14 years before starting his career at The New York Times in 2002. To learn more about Adam Liptak,
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