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What does the term ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
Writing from the capital
The issue being considered by the judges is whether a Tennessee law that restricts certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
Laws that are questioned on this basis are usually reviewed by the courts with a more lenient and accommodating approach known as rational basis review. In this type of review, any reasonable justification for the law will be accepted, and it is likely that the state’s concern for medical safety would meet this standard without much difficulty.
Laws that treat people differently based on their gender are carefully reviewed and must show a strong connection to an important goal in order to be considered valid. This is a challenging standard to meet.
However, the two parties have conflicting views on whether the Tennessee law shows bias based on gender.
Elizabeth B. Prelogar, the U.S. solicitor general representing the Biden administration, argued to the justices that the law under scrutiny inherently considered gender as a factor.
In her writing, she explained that if a state allows an adolescent assigned male at birth to receive testosterone treatment to live as a male, but prohibits an adolescent assigned female at birth from doing the same, it is using a sex-based classification. This means the state must provide a strong justification for such a law.
During the court session, Tennessee’s attorney general, Jonathan Skrmetti, mentioned that their state’s law does not make any distinctions based on gender.
The author stated 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 applies to both boys and girls.
Ms. Prelogar recommended that the Supreme Court should consider subjecting distinctions based on transgender status to a higher level of scrutiny, but it is not expected 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 the list that receive special attention from the court in a long time. The report also states that it is extremely unlikely for the court to add any new classifications now.
Adam Liptak is a journalist who focuses on the Supreme Court and writes a column called Sidebar that discusses legal news. He attended Yale Law School and worked as a lawyer for 14 years before starting his career at The New York Times in 2002. For additional information about Adam Liptak, please visit his profile.
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