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What does ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
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The justices are 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 are typically reviewed with a more lenient and respectful approach by the courts, known as rational basis review. In this type of review, any reasonable justification for the law will usually be accepted, and it is likely that the state’s claim of wanting to protect medical safety would meet this standard easily.
However, laws that show bias towards a specific gender are closely examined and require states to prove that the laws are significantly connected to achieving a crucial goal. This can be a challenging obstacle to overcome.
However, there is a disagreement between the parties on whether the Tennessee law shows bias or discrimination based on gender.
During the Supreme Court hearing, Elizabeth B. Prelogar, the solicitor general for the U.S. and representative of the Biden administration, stated that the law in question inherently considered gender as a factor.
In this scenario, if a state prevents a young person who was born female from taking testosterone to transition to male, while allowing a young person who was born male to undergo the same treatment, the state is using gender as a basis for its decision. This means that the state must provide a strong reason for this law when challenged.
During a court session, Jonathan Skrmetti, who serves as the attorney general of Tennessee, mentioned that the state’s law does not distinguish based on gender.
He explained that there is a distinction between minors looking for drugs for gender transition and minors seeking drugs for other medical reasons. Both boys and girls can be found on either side of this distinction.
Ms. Prelogar suggested that the Supreme Court should consider giving more scrutiny to distinctions made based on transgender status, but it is doubtful that this argument will be successful.
According to a report from Georgetown’s Supreme Court Institute in September, there have been no new categories identified for receiving increased scrutiny from the court in many years. The report suggests 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 discusses legal news in his column, Sidebar. He attended 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, click here.
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