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What does ‘heightened scrutiny’ mean and why is it important to consider?
Written by Adam Liptak
Covering news from
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 challenged for not meeting a rational basis are usually reviewed with less strictness and deference by the courts. Any reasonable justification would be enough to pass this review, and it is likely that the state’s interest in medical safety would meet this standard.
However, laws that show favoritism based on gender are closely scrutinized, requiring states to prove that the laws are significantly connected to achieving a vital goal. This can be a difficult challenge to overcome.
The parties hold different views on whether the Tennessee law shows bias based on gender.
During a court session, Elizabeth B. Prelogar, the solicitor general for the United States, spoke on behalf of the Biden administration and explained that the law in question specifically considered gender.
For instance, if a state doesn’t allow a female-born adolescent to take testosterone to transition to male, but permits a male-born adolescent to do the same, it is using a gender-based classification. Therefore, the state needs to provide a valid reason for this law under closer examination.
During a court session, Jonathan Skrmetti, who serves as the attorney general for Tennessee, stated that the state’s law does not involve any distinction based on sex.
He expressed that there is a distinction made between minors who are looking for drugs as part of their gender transition and minors who are seeking drugs for different medical reasons. He pointed out that both boys and girls can be found on either side of this distinction.
Ms. Prelogar recommended that the Supreme Court should consider giving extra attention to cases involving discrimination based on transgender status, but it is not expected that this argument will be successful.
According to a report from Georgetown’s Supreme Court Institute in September, the court has not included any new categories for stricter scrutiny in many years. The report suggests that the chances of the court adding new categories now are extremely unlikely.
Adam Liptak is a journalist who specializes in covering the Supreme Court and writes a column called Sidebar, focusing on legal news. He earned a law degree from Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002. You can learn more about Adam Liptak by visiting
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