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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 capital
The issue being considered by the judges is whether a law in Tennessee that prohibits certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
When laws are questioned based on this reason, they are usually reviewed by the courts with a more lenient and respectful approach known as rational basis review. Any reasonable explanation is usually enough, and it is highly likely that the state’s argument for medical safety would meet this standard.
Laws that show bias based on gender are closely examined and require states to prove that they are significantly connected to achieving an important goal. This is 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 U.S. solicitor general and is representing the Biden administration, explained to the justices that the law in question specifically considered gender as a factor.
In this scenario, if a state prevents a female adolescent from taking testosterone to transition to male, while allowing a male adolescent to do so, it is using gender as a basis for discrimination. Therefore, the state must provide a strong rationale for this law.
Jonathan Skrmetti, the attorney general of Tennessee, informed the justices that their state law does not involve any classification based on gender.
The author mentioned that there is a distinction between minors who are looking for drugs for gender transition and minors who are seeking drugs for other medical reasons. He also pointed out that both boys and girls can be on either side of this distinction.
Ms. Prelogar recommended that the Supreme Court should consider subjecting distinctions based on transgender status to greater scrutiny, however, it is unlikely that this argument will succeed.
The Supreme Court has not included any new categories for heightened scrutiny in many years, as reported by Georgetown’s Supreme Court Institute in September. The chances of the court doing so now are extremely unlikely.
Adam Liptak is a journalist who specializes in reporting on the Supreme Court and legal issues. He studied at Yale Law School and worked as a lawyer for 14 years before starting at The Times in 2002. To learn more about Adam Liptak, visit his page.
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