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What does it mean to give something ‘heightened scrutiny,’ and why is it important?
Written by Adam Liptak
Writing from the nation
The issue being considered by the judges is whether the Tennessee law 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 courts with a more lenient and deferential approach known as rational basis review. Any reasoning provided is typically accepted, and it is highly likely that the state’s interest in medical safety would easily meet this standard.
However, laws that show bias towards a specific gender are closely examined and require states to prove that they are significantly related to achieving an important goal. This can be a challenging requirement to meet.
The two sides have opposing views on whether the Tennessee law shows bias towards a particular gender.
During a court session, Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, explained to the judges that the law in question had to consider gender as part of its implementation.
In her writing, she explained that if a state prevents a person who was assigned female at birth from taking testosterone to transition to living as a male, but allows a person assigned male at birth to undergo the same treatment, it is using a gender-based distinction. Therefore, the state must provide a strong justification for this law.
During a court session, Jonathan Skrmetti, who serves as the attorney general of Tennessee, stated that their state’s law does not discriminate based on gender.
The author mentioned that there is a distinction made between minors who are seeking drugs for gender transition and minors who are seeking drugs for other medical reasons. This differentiation includes both boys and girls.
Ms. Prelogar recommended that the Supreme Court 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 trigger heightened scrutiny in the court for many years. The report stated that the chances of the court adding new classifications now are extremely unlikely.
Adam Liptak writes about the Supreme Court and also has a column called Sidebar where he discusses legal changes. 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, please visit his page.
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