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What does ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
Reporting live from the
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 challenged for not being rational are usually reviewed with a lenient and deferential approach by the courts, known as rational basis review. Any reasonable justification is usually accepted, and it is likely that a state’s interest in medical safety would easily meet this standard.
Laws that show favoritism towards a specific gender are closely examined and held to a higher standard of review, requiring states to prove that these laws are significantly linked to achieving a crucial goal. This can be a challenging requirement to meet.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias or prejudice based on gender.
During the Supreme Court hearing, Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, argued that the law in question specifically considered gender.
In a hypothetical scenario, she explained that if a state prevents a teenage assigned female at birth from taking testosterone to transition to a male, while allowing a teenage assigned male at birth to take the same treatment, it is using a gender-based classification. Therefore, the state must provide a strong justification for this law.
During a hearing, Jonathan Skrmetti, who is the attorney general of Tennessee, stated to the judges that the law in his state does not differentiate based on gender.
"It distinguishes between underage individuals seeking medication for gender transition and those seeking medication for different medical reasons," he stated. "Both boys and girls can be found on either side of this distinction."
Ms. Prelogar recommended to the Supreme Court that discrimination based on transgender status should be subject to increased scrutiny, but it is not likely that this argument will succeed.
According to a report from Georgetown’s Supreme Court Institute in September, it has been many years since the court has added any new classifications that require closer examination. The report suggests that the chances of the court doing so now are extremely low.
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. To learn more about Adam Liptak, visit his profile.
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