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What does ‘heightened scrutiny’ mean and why is it significant?
Written by Adam Liptak
Live coverage from the
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.
When laws are challenged based on this reason, they usually receive a less strict and deferential review from the courts known as rational basis review. Any reason given for the law is generally accepted, and it is likely that the state’s claim of wanting to ensure medical safety would be considered valid.
However, laws that show bias based on gender are closely examined with a more rigorous review process that requires states to prove that the laws are significantly connected to achieving a crucial goal. This can be a significant challenge.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias or prejudice based on gender.
Elizabeth B. Prelogar, who is the solicitor general for the U.S. and is representing the Biden administration, informed the judges that the law in question specifically considered gender as a factor.
In her writing, she gave an example where a state prohibits a female-born adolescent from getting testosterone to transition to a male, while allowing a male-born adolescent to receive the same treatment. This shows that the state is using gender as a basis for its decision, so it needs to have a strong reason for this law according to legal standards.
During the court session, Tennessee’s attorney general, Jonathan Skrmetti, mentioned that their state law does not discriminate based on gender.
The author believes that there is a distinction between minors who are seeking drugs for gender transition and those seeking drugs for other medical reasons. He pointed out that both boys and girls can be found on either side of this distinction.
Ms. Prelogar recommended to the Supreme Court that discriminations based on transgender status should be closely examined, but it is unlikely that this argument will succeed.
According to a report from Georgetown’s Supreme Court Institute in September, there have been no new categories added to the list that would require closer examination by the court in many years. The report suggests that the chances of the court adding new classifications now are extremely unlikely.
Adam Liptak is a journalist who focuses on reporting about the Supreme Court and legal news through his column, Sidebar. He went to Yale Law School and worked as a lawyer for 14 years before starting his career at The New York Times in 2002.
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