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What does ‘heightened scrutiny’ mean and why is it significant?
Written by Adam Liptak
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The justices are currently considering whether a Tennessee law that prohibits certain medical treatments for transgender minors is in violation of the equal protection clause of the Constitution.
Laws that are questioned on this basis typically undergo a less strict judicial evaluation known as rational basis review. Any reasonable justification is usually considered acceptable, and it is widely believed that the state’s interest in medical safety would easily meet this standard.
However, laws that show favoritism towards one gender are closely examined and require states to prove that they are significantly connected to achieving an important goal. This is a challenging requirement to meet.
However, the two sides have conflicting opinions on whether the Tennessee law shows bias towards a particular gender.
Elizabeth B. Prelogar, who serves as the U.S. solicitor general and is representing the Biden administration, informed the justices that the law in question clearly considers gender as a factor.
In her writing, she mentioned that if a state prevents a female adolescent from taking testosterone to transition to a male, while allowing a male adolescent to do the same, it is using a gender-based classification. As a result, the state must provide a strong reason for this law under closer examination.
During the court session, Jonathan Skrmetti, who serves as Tennessee’s attorney general, explained to the judges that their state law does not make any distinctions based on gender.
He explained that there is a distinction made between underage individuals seeking medication for gender transition and those seeking medication for other medical reasons. He mentioned that both boys and girls can be found on either side of this distinction.
Ms. Prelogar suggested to the Supreme Court that discrimination based on transgender identity should be closely examined, but it is unlikely 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 heightened scrutiny in court for many years. The chances of the court adding any new classifications now are extremely unlikely.
Adam Liptak is a journalist who reports on the Supreme Court and writes a column called Sidebar, which focuses on legal news. He graduated from Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002. To learn more about Adam Liptak, visit his page.
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