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What does ‘heightened scrutiny’ mean, and what is its significance?
Written by Adam Liptak
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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.
When laws are challenged on the basis of rationality, they are usually reviewed with a relaxed and deferential approach by the judiciary known as rational basis review. In this type of review, almost any reason provided by the state will be considered acceptable, and there is no doubt that the state’s interest in medical safety would easily meet this standard.
However, laws that show bias based on gender are closely examined under a more rigorous standard of review called heightened scrutiny. This means that states must prove that these laws are significantly connected to accomplishing an important goal. Meeting this standard is a significant challenge.
However, the two parties have conflicting opinions on whether the Tennessee law shows bias or prejudice towards a specific gender.
During the Supreme Court hearing, Elizabeth B. Prelogar, the solicitor general for the United States and representing President Biden’s administration, argued that the law in question inherently considered gender.
In her writing, she gave an example where a state does not allow a person who was identified as female at birth to take testosterone to transition to male, but allows someone identified as male at birth to take the same treatment. This shows that the state is making decisions based on the individual’s sex, and therefore must provide a strong reason for their law.
During the court proceedings, Jonathan Skrmetti, who serves as Tennessee’s attorney general, mentioned that the state’s law does not make any distinctions based on sex.
The author mentioned that there is a distinction between minors who are looking for drugs to transition their gender and minors who need drugs for other medical reasons. He explained that both boys and girls can be found on either side of this distinction.
Ms. Prelogar suggested that the Supreme Court should consider subjecting distinctions based on transgender status to heightened scrutiny, but it is unlikely that this argument will be successful.
According to a report from Georgetown’s Supreme Court Institute in September, there have been no new categories added to trigger closer examination by the court in many years. The report also mentioned that the chances of the court adding new categories now are extremely slim.
Adam Liptak is a journalist who specializes in covering the Supreme Court and writing about 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, visit his profile on The Times website
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