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What does ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
Writing from the capital
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.
When a law is challenged on the basis that it does not have a legitimate reason, it typically undergoes a less strict form of judicial review known as rational basis review. In this type of review, almost any reason given by the state for the law will be considered acceptable. It is likely that the state’s argument for the law being related to medical safety would
However, laws that show bias based on gender are held to a higher level of scrutiny, which requires states to prove that these laws are significantly connected to achieving an important goal. This can be a difficult challenge to overcome.
The parties have differing opinions on whether the Tennessee law shows bias based on gender.
During a Supreme Court hearing, Elizabeth B. Prelogar, the U.S. solicitor general for the Biden administration, argued that the law in question had to consider gender as a factor.
In this example, she explained that if a state prevents a female-born adolescent from transitioning to male with testosterone, but allows a male-born adolescent to undergo the same treatment, it is using a discriminatory sex-based classification. As a result, the state must provide a strong justification for this law.
During the court session, Jonathan Skrmetti, who serves as Tennessee’s attorney general, mentioned that the state’s law does not discriminate based on gender.
He explained that there is a distinction made between minors who are looking for drugs for gender transition and minors who need drugs for other medical reasons. He pointed out that both boys and girls can be found on either side of this distinction.
Ms. Prelogar recommended that the Supreme Court should consider applying stricter scrutiny to cases involving discrimination based on transgender status, although it is unlikely that this argument will be successful.
Georgetown’s Supreme Court Institute reported in September that there has been no addition to the list of classifications that would warrant increased scrutiny by the court in many years. The chances of the court making any changes to this list 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 more information about Adam Liptak, visit his page.
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