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What does it mean when something is subject to ‘heightened scrutiny,’ 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 Tennessee law that prohibits certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
Laws that are questioned on these grounds usually undergo a less strict form of judicial review known as rational basis review. In this type of review, almost any reason given for the law will be accepted, and it is likely that the state’s claim of promoting medical safety would meet this standard.
However, laws that show bias based on gender are closely examined and require states to prove that the laws are significantly connected to achieving an important goal. This presents a significant challenge.
However, the parties have differing opinions on whether the Tennessee law shows bias towards individuals based on their gender.
Elizabeth B. Prelogar, who represents the Biden administration as the U.S. solicitor general, argued to the justices that the law in question must consider gender.
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 gender-based classification. In such cases, the state must provide a strong justification for its law under closer examination.
During the court proceedings, Jonathan Skrmetti, who represents Tennessee as the attorney general, stated that the state’s law does not discriminate based on gender.
The author stated that there is a distinction between minors who are looking for drugs to transition genders and minors who are seeking drugs for other medical reasons. This differentiation includes both boys and girls.
Ms. Prelogar recommended that the Supreme Court should consider giving special attention to cases involving discrimination based on transgender status, but it is doubtful that this argument will be successful.
According to a report from Georgetown’s Supreme Court Institute in September, there have been no new classifications added to trigger more intense scrutiny in court for many years. The report also stated that it is highly unlikely for the court to add any new classifications now.
Adam Liptak is a journalist who reports on the Supreme Court and writes a column called Sidebar that focuses on legal news. He attended Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002.
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