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What does it mean to subject something to ‘heightened scrutiny,’ and why is it important to understand this concept?
Written by Adam Liptak
Writing from the nation
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 typically reviewed by the courts in a less strict and deferential manner known as rational basis review. Any reasoning behind the law will generally be accepted, and it is 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, requiring states to prove that these laws are significantly connected to achieving a crucial goal. This is a significant challenge for states to overcome.
However, there is a disagreement between the parties on whether the Tennessee law shows bias or favoritism towards a
Elizabeth B. Prelogar, the U.S. solicitor general, who is representing the Biden administration, informed the judges that the controversial law specifically considered gender as a factor.
In this scenario, if a state prohibits a young person who was born female from taking testosterone to transition to male, but allows a young person who was born male to do so, the state is using gender as a basis for its decision. Therefore, the state must provide a strong justification for this law.
During the court proceedings, Jonathan Skrmetti, who serves as the attorney general of Tennessee, mentioned that the state’s law does not discriminate based on sex.
He explained that there is a distinction between minors who are seeking drugs for gender transition and those who are seeking drugs for other medical reasons. This distinction applies to both boys and girls.
Ms. Prelogar recommended that the Supreme Court should consider giving greater scrutiny to distinctions made based on transgender status, but it is unlikely that this argument will be successful.
A report from Georgetown’s Supreme Court Institute in September stated that there have not been any new classifications added to the list that would require closer scrutiny from the court in 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 focuses on reporting about the Supreme Court and writes a regular column called Sidebar discussing legal news. He went to 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, click here.
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