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What does the term ‘heightened scrutiny’ mean, and why is it significant?
Written by Adam Liptak.
Writing from the nation
The issue being considered by the judges is whether the Tennessee law that restricts certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
Laws that are challenged on the basis of rationality are usually examined with a lenient and deferential approach by the courts, known as rational basis review. In this review, almost any reason given by the state for the law will be accepted, especially if it relates to the state’s interest in medical safety.
However, laws that show bias towards a specific gender are closely examined and held to a higher standard of review. States must prove that these laws are directly related to achieving a significant goal. This poses a significant challenge.
However, there is a disagreement between the parties on whether the Tennessee law shows bias based on gender.
During a court hearing, Elizabeth B. Prelogar, the U.S. solicitor general, who is representing the Biden administration, argued that the law in question specifically considered gender as a factor.
In the scenario described, if a state allows an adolescent assigned male at birth to receive testosterone treatment to transition to a male, but prohibits an adolescent assigned female at birth from receiving the same treatment, it is using a gender-based classification. As a result, the state must provide a strong justification for this law under closer examination.
During a court hearing, Jonathan Skrmetti, who serves as the attorney general of Tennessee, mentioned that the state’s law does not contain any gender-based distinctions.
The author stated that there is a distinction between minors who are seeking drugs for the purpose of gender transition and those seeking drugs for other medical reasons. This distinction does not align with gender, as both boys and girls can be found on both sides of the line.
Ms. Prelogar suggested that the Supreme Court should consider giving special attention to cases involving discrimination based on transgender status, 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 that would require closer examination by the court in many years. The report stated that the chances of the court adding any new classifications for heightened scrutiny now are extremely low.
Adam Liptak writes about the Supreme Court and legal updates in his column called Sidebar. He graduated 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 on his page.
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