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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.
Laws that are questioned for this reason are usually examined with a lenient and deferential approach by the courts, known as rational basis review. Any reasonable explanation is typically accepted, and it is 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 and require states to prove that they are directly related to achieving a significant goal. This presents a significant challenge.
However, there is a disagreement between the parties on whether the Tennessee law shows discrimination based on gender.
Elizabeth B. Prelogar, who represents the Biden administration as the U.S. solicitor general, argued to the justices that the law in question had to consider sex.
In her writing, she mentioned that if a state allows an adolescent assigned male at birth to receive testosterone treatment to live as a male, but prohibits an adolescent assigned female at birth from doing the same, it is using a sex-based classification. This means that the state must provide a strong justification for this law.
During a court hearing, the attorney general of Tennessee, Jonathan Skrmetti, stated that the state’s law does not make any distinctions based on gender.
The author mentioned that there is a distinction made between minors who are looking for drugs for gender transition and those who are seeking drugs for other medical reasons. This differentiation applies to both boys and girls.
Ms. Prelogar advised the Supreme Court to consider applying stricter scrutiny to distinctions made based on transgender status, but it is not expected to be successful.
According to a report from Georgetown’s Supreme Court Institute in September, there have been no new classifications added that would warrant heightened scrutiny in a long time. The report also mentions that the chances of the court adding any new classifications now are extremely unlikely.
Adam Liptak writes about the Supreme Court and also has a column called Sidebar where he discusses 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. You can find out more about Adam Liptak on his profile.
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