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What is meant by ‘heightened scrutiny,’ and why is it important to understand?
Written by Adam Liptak
Writing from the capital
The issue being considered by 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 questioned for this reason are typically reviewed by the courts with a more lenient and respectful approach known as rational basis review. Nearly any reason will be considered acceptable, 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 directly connected to achieving a significant goal. This can be a difficult challenge to overcome.
However, there is a disagreement between the parties on whether the Tennessee law shows bias or prejudice based on gender.
During a court session, Elizabeth B. Prelogar, who serves as the U.S. solicitor general for the Biden administration, explained to the judges that the disputed law specifically considered gender.
In the scenario she described, if a state prevents a transgender boy from receiving testosterone while allowing a transgender girl to do so, it is using gender as a basis for its decision and must provide a valid reason for this under closer examination.
During the court session, Tennessee’s attorney general, Jonathan Skrmetti, mentioned that the state’s law does not contain any gender-based distinctions.
The author stated that there is a distinction made between minors who are seeking drugs for gender transition and minors seeking drugs for other health reasons. This distinction applies to both boys and girls.
Ms. Prelogar made a plea to the Supreme Court to consider giving special attention to cases involving discrimination based on transgender identity. However, it is unlikely that this argument will succeed in court.
According to a report from Georgetown’s Supreme Court Institute in September, there have been no new classifications added to trigger heightened scrutiny by the court in many years. The report stated that the chances of the court doing so now are extremely unlikely.
Adam Liptak is a journalist who reports on the Supreme Court and writes a column called Sidebar about 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. Learn more about Adam Liptak.
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