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What does it mean when something is subject to "heightened scrutiny," and what significance does this hold?
Written by Adam Liptak
Writing from the nation
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 on this basis are usually subject to a less strict form of judicial review known as rational basis review. This means that almost any reason given will be accepted, and it is highly likely that the state’s interest in medical safety would meet this standard.
Laws that show bias based on gender are closely examined and held to a higher standard, requiring states to prove that they are significantly connected to achieving an important goal. This can be a difficult challenge to meet.
However, there is a dispute between the parties regarding whether the Tennessee law shows bias against individuals based on their gender
During a court session, Elizabeth B. Prelogar, the U.S. solicitor general who is representing the Biden administration, argued that the law in question specifically considered gender as a factor.
In the case where a state prevents a female adolescent from transitioning to male with testosterone, but allows a male adolescent to do the same, the state is using a gender-based classification and must provide a valid reason for this law under close examination.
During a court hearing, Tennessee’s attorney general, Jonathan Skrmetti, mentioned that the state’s law does not make any distinctions based on gender.
The author explained that there is a distinction made between minors who are seeking drugs for gender transition and those seeking drugs for other medical reasons. This differentiation includes both boys and girls.
Ms. Prelogar recommended to the Supreme Court that discrimination based on transgender status should be carefully reviewed, but it is doubtful that this argument will be successful.
According to a September report from Georgetown’s Supreme Court Institute, no new categories have been added to the list of classifications that receive increased scrutiny by the court in many years. The report suggests that the likelihood of the court adding new classifications now is close to impossible.
Adam Liptak reports on news related to the Supreme Court and writes a column called Sidebar that focuses on legal updates. He went to Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002. For additional information about Adam Liptak, click here.
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