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What does ‘heightened scrutiny’ mean and why is it significant?
Written by Adam Liptak
Writing from the capital
The issue being presented to 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 challenged on the basis of rationality are typically reviewed by the courts with a more lenient and deferential approach known as rational basis review. In this type of scrutiny, almost any reason provided by the state for the law will be accepted, especially when it involves the interest in medical safety.
However, laws that show bias towards a specific gender are closely examined, requiring states to prove that the laws are significantly linked to achieving an important goal. This is a significant challenge to meet.
However, the two parties have conflicting views on whether the Tennessee law shows bias on the basis of gender.
Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, argued to the justices that the law in question had to consider gender.
For instance, if a state prevents a person who was born female from taking testosterone to transition to male, but allows a person who was born male to undergo the same treatment, the state is using gender as a basis for its decision and must provide a strong reason for this law.
During the court proceedings, Jonathan Skrmetti, who serves as Tennessee’s attorney general, stated that the law in his state does not contain any gender-based distinctions.
He explained that there is a distinction made between minors who are looking for drugs to help with their gender transition and minors who are seeking drugs for different medical reasons. Both boys and girls may be on either side of this distinction.
Ms. Prelogar recommended to the Supreme Court that discrimination based on transgender status should be closely examined, 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 to the list that require closer scrutiny by the court in many years. The report also stated that it is highly unlikely for the court to add any new classifications to this list in the present time.
Adam Liptak writes about the Supreme Court and writes a column called Sidebar that focuses on legal updates. He went to Yale Law School and worked as a lawyer for 14 years before starting at The Times in 2002. You can learn more about Adam Liptak.
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