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What does the term ‘heightened scrutiny’ mean, and why is it important to understand its significance?
Written by Adam Liptak
Writing from the city
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.
When laws are challenged on the basis of rationality, they are usually reviewed by courts with a relaxed and deferential approach known as rational basis review. In this type of review, almost any reason provided by the state will be enough to justify the law, especially when it involves the state’s interest in ensuring medical safety.
However, laws that show bias based on gender are closely examined, requiring states to prove that the laws are significantly connected to achieving a crucial goal. This presents a significant challenge.
However, there is a disagreement between the parties regarding whether the Tennessee law shows discrimination based on gender.
Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, explained to the justices that the law in question specifically considered gender.
In the scenario given, if a state prevents a young person who was identified as female at birth from taking testosterone to transition to male, but allows a young person identified as male at birth to undergo the same treatment, then the state is using gender as a basis for their decision. As a result, they must provide a strong justification for their law when it is scrutinized.
During the court proceedings, Tennessee’s attorney general, Jonathan Skrmetti, mentioned that their state law does not make any distinctions based on gender.
The author highlighted the distinction between minors who are seeking drugs for gender transition and those seeking drugs for other medical reasons. He emphasized that both boys and girls can fall into either category.
Ms. Prelogar recommended that the Supreme Court should consider subjecting distinctions based on transgender status to heightened scrutiny, 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 classifications added to the list that receive special attention from the court in many years. The report also stated that it is highly unlikely for the court to change this anytime soon.
Adam Liptak is a journalist who focuses on the Supreme Court and writes a column called Sidebar about legal news. He attended Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002. Click here for additional information on Adam Liptak.
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