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What does ‘heightened scrutiny’ mean, and why is it important to understand?
Written by Adam Liptak
Delivering news updates
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 given lenient and deferential examination by the courts, known as rational basis review. Any reasoning provided is usually considered acceptable, 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 under close examination, which is a more strict form of review that requires states to prove that the laws are closely linked to achieving an important goal. This can be a significant challenge.
The two parties have conflicting opinions on whether the Tennessee law shows bias or discrimination towards individuals based on their gender.
Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, informed the justices that the law in question considers gender as a crucial factor.
For instance, if a state does not allow a female adolescent who was born as a girl to take testosterone to transition to a male, but allows a male adolescent who was born as a boy to take the same treatment, the state is using gender as a basis for its decision and must provide a valid reason for this under closer examination.
During a court hearing, Tennessee’s attorney general, Jonathan Skrmetti, mentioned that their state law does not discriminate based on gender.
The author discussed how there is a distinction between minors who are seeking drugs for gender transition and those seeking drugs for other medical reasons. This differentiation does not necessarily align with gender, as both boys and girls can be found on either side of this line.
Ms. Prelogar recommended to the Supreme Court that discrimination based on transgender identity should be closely examined, but it is not likely 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 increased scrutiny by the court in many years. The report suggests that the likelihood of the court adding any new classifications now is extremely unlikely.
Adam Liptak is a journalist who specializes in covering the Supreme Court and writes a column called Sidebar, which focuses on legal news. 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. Learn more about Adam Liptak.
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