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What does ‘heightened scrutiny’ mean and what is its significance?
Written by Adam Liptak
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The issue presented to the justices 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 usually reviewed by the courts with a more lenient and deferential approach known as rational basis review. Nearly any reason provided for the law will be accepted, and it is likely that the state’s goal of ensuring medical safety would meet this standard.
However, laws that show bias towards a specific gender are closely examined and require states to prove that the laws are significantly connected to achieving a crucial goal. This presents a significant challenge.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias or prejudice towards a particular gender
During a court hearing, Elizabeth B. Prelogar, who represents the Biden administration as the U.S. solicitor general, argued that the disputed law had to consider gender.
For instance, if a state bans a young person who was identified as female at birth from taking testosterone to transition to a male, but permits a young person identified as male at birth to undergo the same treatment, then the state is using gender as a basis for its decision and must provide a strong justification for its law.
During the court proceedings, Jonathan Skrmetti, who serves as Tennessee’s attorney general, mentioned that the state’s law does not make any distinctions based on sex.
The author pointed out that there is a distinction between minors who are looking for drugs for gender transition and those who need drugs for other medical reasons. This distinction applies to both boys and girls.
Ms. Prelogar recommended that the Supreme Court should consider giving special attention to cases involving discrimination based on transgender status, but it is not expected that this argument will be successful.
According to a report from Georgetown’s Supreme Court Institute in September, there has been no new classifications added to trigger heightened scrutiny by the court in many years. The report mentioned that the chances of the court adding new classifications now are close to impossible.
Adam Liptak is a journalist who reports on the activities of the Supreme Court and writes a regular column called Sidebar about changes in the legal field. He went to Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002.
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