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What does ‘heightened scrutiny’ mean, and why is it important?
Authored by Adam Liptak
Updating from the nation
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 analyzed with a more lenient and deferential approach by the courts, known as rational basis review. In this type of review, almost any reason given for the law will be accepted, and it is highly likely that the state’s interest in medical safety would meet this standard.
However, laws that show bias towards a specific gender are closely examined and require states to prove that these laws are significantly connected to reaching an important goal. This is a significant challenge for states to meet.
However, the parties have differing opinions on whether the Tennessee law shows bias based on gender.
During a court session, Elizabeth B. Prelogar, the solicitor general for the United States and a representative of the Biden administration, argued that the law in question considered gender as a crucial factor.
In this scenario, she explained that if a state prevents a transgender male from receiving testosterone treatment, while allowing a transgender female to receive the same treatment, it is using a gender-based classification. As a result, the state must provide a strong justification for this law.
During a court proceeding, Jonathan Skrmetti, who serves as Tennessee’s attorney general, mentioned that the state’s law does not contain any discrimination based on gender.
The author stated that there is a distinction between minors looking for drugs to transition genders and minors seeking drugs for other medical reasons. Both boys and girls can be found on either side of this distinction.
Ms. Prelogar recommended that the Supreme Court should consider giving special attention to cases involving discrimination based on transgender status, but it is unlikely that her 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 require stricter scrutiny in many years. The chances of the court adding any new classifications now are extremely unlikely.
Adam Liptak is a journalist who specializes in covering news related to the Supreme Court and writes a column called Sidebar that focuses on 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. You can find more information about Adam Liptak
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