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What does ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
Presenting from the
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 questioned on this basis are usually reviewed by the courts with a less strict approach called rational basis review. Any reason given for the law will likely be accepted, and it is likely that the state’s interest in medical safety would easily pass this test.
Laws that treat people differently based on their gender are closely examined and require states to prove that they are significantly linked to achieving an important goal. This is a difficult challenge to meet.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias or prejudice based on gender.
During a court session, Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, explained to the judges that the law in question specifically considers gender.
For instance, if a state does not allow a female-born adolescent to take testosterone to transition to male, but permits a male-born adolescent to do so, the state is using a gender-based distinction and must provide a strong reason for this law to be upheld.
During the court proceedings, Jonathan Skrmetti, who serves as the attorney general for Tennessee, explained that the state’s law does not contain any distinctions based on gender.
The author stated that there is a distinction made between minors who are seeking drugs for gender transition and minors who are seeking drugs for other medical reasons. This differentiation includes both boys and girls.
Ms. Prelogar recommended to the Supreme Court that discrimination based on transgender status should be closely examined, but it is not likely 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 trigger heightened scrutiny by the court in many years. The report suggests that the chances of the court adding any new classifications now are extremely slim.
Adam Liptak is a journalist who reports on the Supreme Court and writes a column called Sidebar, which focuses on legal news. 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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