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What does the term ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
Writing from the nation
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 based on this reason are usually reviewed with leniency and respect by the courts, known as rational basis review. Any reasonable explanation will be acceptable, and it is highly likely that the state’s concern for medical safety would meet this standard.
Laws that show favoritism based on gender are closely examined through heightened scrutiny, a rigorous review process that demands states to prove that the laws are significantly connected to achieving an important goal. This presents a significant challenge.
The two sides have differing opinions on whether the Tennessee law shows bias based on gender.
During a court session, Elizabeth B. Prelogar, who is the U.S. solicitor general and representing the Biden administration, stated to the judges that the law being questioned considers gender as a factor.
She explained that if a state bans a young person who was born female from taking testosterone to transition to male, but allows a young person who was born male to do the same, then the state is using gender as a basis for their decision and must provide a strong justification for their law.
During the court session, Jonathan Skrmetti, the attorney general of Tennessee, stated that the state’s law does not distinguish or discriminate based on gender.
The author suggests that there is a distinction between minors who are seeking drugs for gender transition and minors who are seeking drugs for other medical reasons. This distinction separates boys and girls into different categories based on their reasons for seeking medication.
Ms. Prelogar recommended 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 be successful.
According to a report from Georgetown’s Supreme Court Institute in September, there has been no new classifications added to trigger heightened scrutiny in decades. The chances of the court adding new classifications now are extremely unlikely.
Adam Liptak is a journalist who specializes in covering news related to the Supreme Court and writes a column called Sidebar about legal updates. He attended Yale Law School and practiced law for 14 years before starting his career at The New York Times in 2002. You can find more information about Adam Liptak on his profile.
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