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What does ‘heightened scrutiny’ mean and why is it important?
Written by Adam Liptak
Reporting live from the
The issue being considered by the judges is whether a law in Tennessee that restricts certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
When laws are questioned based on this reason, they are usually reviewed with a less strict and more deferential approach by the courts, known as rational basis review. Any reason provided is typically enough, and it is widely accepted that the state’s interest in ensuring medical safety would easily pass this standard.
Laws that show bias based on gender are closely examined and must meet a higher standard of review, requiring states to prove that the laws are significantly linked to achieving an important goal. This can be a challenging requirement to meet.
There is a disagreement between the parties on whether the Tennessee law shows discrimination based on gender.
During a court hearing, Elizabeth B. Prelogar, who is the U.S. solicitor general for the Biden administration, explained to the judges that the law being questioned had to consider gender.
For instance, if a state bans a female adolescent from receiving testosterone to transition to male, but allows a male adolescent to undergo the same treatment, it is using a sex-based classification. In this case, the state must provide a valid reason for its law under closer examination.
During the court proceedings, the attorney general of Tennessee, Jonathan Skrmetti, stated that their state law does not contain any gender discrimination.
The author highlighted the distinction between minors looking for drugs for gender transition and those seeking drugs for other medical reasons. He mentioned that 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, but it is unlikely that this argument will be successful.
According to a report from Georgetown’s Supreme Court Institute in September, the court has not included any new categories for increased scrutiny in many years. The report suggests that it is highly unlikely for the court to do so at this time.
Adam Liptak is a journalist who specializes in reporting on the Supreme Court and writes a column called Sidebar that focuses on legal news and updates. He graduated from Yale Law School and worked as a lawyer for 14 years before starting his career at The New York Times in 2002. For additional information on Adam Liptak,
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