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What does the term ‘heightened scrutiny’ mean, and why is it important?
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 based on this reason are typically reviewed with a relaxed and deferential approach by the courts known as rational basis review. Any reasonable justification for the law will likely be accepted, and it is highly likely that the state’s argument for medical safety would meet this standard.
However, laws that show bias towards a specific gender are closely examined and evaluated more rigorously, requiring states to prove that these laws are directly related to achieving a significant goal. This poses a significant challenge.
However, there is a disagreement between the parties on whether the Tennessee law shows bias against a particular sex.
Elizabeth B. Prelogar, who serves as the U.S. solicitor general and is representing the Biden administration, stated to the justices that the law in question considers sex as a necessary factor.
In her writing, she pointed out that if a state allows adolescent assigned males at birth to receive testosterone treatment to live as males but prohibits adolescent assigned females at birth from doing the same, it is using a sex-based classification. Therefore, the state must provide a valid reason for this law under increased scrutiny.
During a court session, Jonathan Skrmetti, who serves as Tennessee’s attorney general, mentioned that the state’s law does not discriminate based on sex.
The author mentioned that there is a distinction between minors who are looking for drugs for gender transition and those looking for drugs for other medical reasons. He explained that both boys and girls can be on either side of this distinction.
Ms. Prelogar recommended to the Supreme Court that discrimination based on transgender status should be carefully 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 classifications added that warrant increased scrutiny in many years. The likelihood of the court doing so now is extremely low.
Adam Liptak writes about the Supreme Court and legal news in his column called Sidebar. He went to Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002. To learn more about Adam Liptak, click here.
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