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What does the term ‘heightened scrutiny’ mean, and what significance does it hold?
Written by Adam Liptak
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The justices are considering 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 with a more lenient and respectful approach by the courts, known as rational basis review. Any explanation for the law will likely be accepted, 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 closely examined under a more rigorous form of evaluation that requires states to prove that the laws are significantly connected to reaching an important goal. This is a significant challenge.
However, there is a disagreement between the parties regarding whether the Tennessee law shows prejudice based on gender.
During a court session, Elizabeth B. Prelogar, who serves as the U.S. solicitor general and represents the Biden administration, explained to the judges that the disputed law considers gender as a significant factor.
In her writing, she explained that if a state restricts a female assigned at birth adolescent from taking testosterone to transition to male, while allowing a male assigned at birth adolescent to do the same, then the state is using a gender-based classification. In this case, the state must provide a strong justification for its law.
During a court session, Jonathan Skrmetti, who serves as Tennessee’s attorney general, stated that the state’s law does not differentiate based on gender.
The author stated that there is a distinction between minors who are looking for drugs for gender transition and minors who need medication for other medical reasons. He explained that both boys and girls can be found on either side of this distinction.
Ms. Prelogar recommended that the Supreme Court should consider subjecting distinctions based on transgender status to a higher level of scrutiny. However, 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 added to trigger heightened scrutiny in the court for 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 reports on the Supreme Court and writes a column called Sidebar that focuses on 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. To learn more about Adam Liptak, click here.
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