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What does ‘heightened scrutiny’ mean, and what significance does it hold?
Written by Adam Liptak
Writing from the capital
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 the basis of rationality usually undergo a less strict review by the courts known as rational basis review. In this type of scrutiny, almost any reason given for the law will be accepted, and it is highly likely that the state’s concern for medical safety would meet this standard.
When laws discriminate based on sex, they are closely examined and must prove that they are significantly connected to achieving an important goal. This is a challenging standard to meet.
However, the parties have conflicting opinions on whether the Tennessee law shows bias towards a particular gender.
During a court session, Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, informed the justices that the law in question inherently considered gender in its implementation.
In the scenario described, if a state prevents a young person who was born female from taking testosterone to transition to living as a male, while allowing a young person born male to undergo the same treatment, the state is using a gender-based classification. As a result, the state must provide a strong justification for this law under closer examination.
During a court session, Jonathan Skrmetti, who serves as Tennessee’s attorney general, stated that the state’s law does not contain any gender-based distinctions.
He explained that there is a distinction made between minors who are looking for drugs to aid in their gender transition and minors who are seeking drugs for other medical reasons. Additionally, he pointed out that both boys and girls can be found on either side of this distinction.
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 have been no new classifications added to the list that require closer scrutiny by the court in many years. The report also stated that the chances of the court adding new classifications for heightened scrutiny now are extremely unlikely.
Adam Liptak is a journalist who focuses on reporting about the Supreme Court and legal news in his column called Sidebar. He attended Yale Law School and worked as a lawyer for 14 years before starting his career at The New York Times in 2002. Learn more about Adam Liptak.
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