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What does ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
Updating from the capital
The issue being considered by 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 challenged on the basis of rational basis review are usually examined with less strict scrutiny by the courts. Any reasonable justification is usually accepted, and it is highly likely that the state’s interest in medical safety would pass this test with no issues.
However, laws that show bias towards a specific gender are held to a higher standard of review, which requires states to prove that the laws are directly related to accomplishing a significant goal. This poses 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 is the U.S. solicitor general and is representing the Biden administration, informed the justices that the law in question specifically considered gender.
For instance, if a state does not allow a teenager who was born female to take testosterone to transition to a male, but does allow a teenager who was born male to do so, the state is using a gender-based distinction. As a result, the state must provide a strong justification for this law.
During a court hearing, Jonathan Skrmetti, who serves as Tennessee’s attorney general, stated that the state’s law does not involve any distinctions based on gender.
The author stated that there is a distinction between minors who are seeking 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 subjecting distinctions based on transgender status to a higher level of scrutiny, but it is unlikely that this argument will be successful.
According to a report from Georgetown’s Supreme Court Institute in September, there have been no new classifications that have been subject to increased scrutiny by the court in many years. The report also stated that the chances of the court adding any new classifications to this list now are extremely slim.
Adam Liptak reports on news related to the Supreme Court and authors a regular column called Sidebar that discusses legal updates. He attended Yale Law School and worked as a lawyer for 14 years before starting his career at The New York Times in 2002. To learn more about Adam Liptak, visit his profile.
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