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What does ‘heightened scrutiny’ mean, and why is it important to understand?
Written by Adam Liptak
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The issue presented to the justices is whether a Tennessee law that prohibits certain medical treatments for transgender minors is in violation of the equal protection clause of the Constitution.
When laws are questioned on the basis of their constitutionality, they are usually reviewed with a lenient and respectful approach called rational basis review. In this type of scrutiny, almost any reason provided by the state for the law will be accepted, especially when it comes to concerns about medical safety.
However, laws that show bias towards a specific gender are closely examined and require states to prove that they are significantly connected to achieving a crucial goal. This is a significant challenge.
However, the parties have conflicting opinions on whether the Tennessee law shows bias based on gender.
Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, explained to the judges that the law being contested considers gender as a significant factor.
In this scenario, the author explains that if a state prevents a female adolescent from transitioning to male with testosterone, but allows a male adolescent to do so, then the state is using gender as a basis for their decision and must provide a strong rationale for their law.
During the court proceedings, Jonathan Skrmetti, who represents Tennessee as its attorney general, mentioned that the state’s law does not contain any gender-based distinctions.
The author mentioned that there is a distinction made between minors who are looking for drugs for gender transition and minors who are seeking drugs for different medical reasons. This distinction applies to both boys and girls.
Ms. Prelogar recommended that the Supreme Court should consider treating distinctions based on transgender status with more scrutiny, but it is not expected that this argument will be successful.
A report from Georgetown’s Supreme Court Institute in September pointed out that there have been no new classifications added to the list that require closer scrutiny in many years. The report also stated that the chances of the court adding new classifications now are extremely unlikely.
Adam Liptak is a journalist who focuses on the Supreme Court and writes a column called Sidebar about legal news. He attended Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002. You can learn more about Adam Liptak by visiting his profile.
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