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What does it mean to subject something to ‘heightened scrutiny,’ and why is it important?
Written by Adam Liptak
Providing updates from
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 these grounds are typically examined by the courts with a less strict and deferential approach known as rational basis review. Just about any reason will be 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 closely examined through heightened scrutiny, which is a stricter form of evaluation. This means that states must prove that these laws are directly linked to achieving a significant goal. This can be a significant challenge to overcome.
However, the parties have conflicting views on whether the Tennessee law shows bias or prejudice based on gender.
During a court hearing, Elizabeth B. Prelogar, who is the U.S. solicitor general and represents the Biden administration, explained to the judges that the law in question specifically considered gender as a factor.
In her writing, she explained that if a state allows a person assigned male at birth to receive testosterone treatment to transition to living as a male, but prohibits a person assigned female at birth from doing the same, it is using gender as a basis for discrimination. This means the state must have a strong reason for this law.
During a legal proceeding, Tennessee’s attorney general, Jonathan Skrmetti, stated that the state’s law does not contain any distinctions based on sex.
The author explained that there is a distinction between minors seeking drugs for gender transition and minors seeking drugs for other medical reasons. He pointed out that both boys and girls can be on either side of this distinction.
Ms. Prelogar suggested that the Supreme Court should apply stricter scrutiny to distinctions made based on transgender status, 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 added that would receive increased scrutiny by the court in many years. The report suggests that the likelihood of the court adding any new classifications for increased scrutiny now is extremely low.
Adam Liptak is a journalist who specializes in covering news related to the Supreme Court and writes a regular column called Sidebar about legal updates. He studied at Yale Law School and worked as a lawyer for 14 years before starting his career at The Times in 2002. For more information about Adam Liptak, click here.
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