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What does ‘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 prohibits certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
Laws that are challenged based on this reasoning are typically examined through a less strict and respectful judicial review known as rational basis review. In this type of scrutiny, almost any explanation for the law will be acceptable, and it is highly likely that the state’s claim of prioritizing medical safety would meet this standard.
However, laws that show bias towards a specific gender are held to a higher standard of examination called heightened scrutiny. This means that states must prove that the laws are significantly linked to reaching an important goal. Meeting this requirement is a significant challenge.
However, the two sides have conflicting opinions on whether the Tennessee law shows bias or prejudice based on gender.
Elizabeth B. Prelogar, who serves as the U.S. solicitor general for the Biden administration, argued before the justices that the law in question specifically considered gender as a key factor.
She explained that if a state has a law that prevents a female-born adolescent from taking testosterone to transition to male, but allows a male-born adolescent to do the same, it is using a gender-based distinction and must provide a strong rationale for this law.
During a court session, Jonathan Skrmetti, the attorney general of Tennessee, mentioned that the state’s law does not make any distinctions based on gender.
The statement highlights the distinction between minors who are seeking drugs for gender transition and those seeking drugs for other medical reasons. It emphasizes that both boys and girls can be on either side of this distinction.
Ms. Prelogar suggested to the Supreme Court that discrimination based on transgender status should be closely examined, but it is not expected to be successful.
According to a report from Georgetown’s Supreme Court Institute in September, there have been no new classifications added to the list that would receive greater scrutiny in many years. The chances of the court doing so now are extremely unlikely.
Adam Liptak is a journalist who specializes in covering the Supreme Court and writing about legal news 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. Learn more about Adam Liptak.
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