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What is the concept of ‘heightened scrutiny’ and why is it significant?
Written by Adam Liptak
Writing from the capital
The justices are considering 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 for this reason are usually reviewed by the courts with a more lenient and deferential approach known as rational basis review. Any reasoning provided for the law will generally be accepted, and it is likely that the state’s concern for medical safety would meet this standard.
However, laws that show bias or unfair treatment towards a specific gender are closely examined and held to a higher standard of review, which requires states to prove that the laws are significantly linked to achieving an important goal. This can be a difficult challenge to overcome.
However, there is disagreement between the parties on whether the Tennessee law shows discrimination based on gender.
During a court hearing, Elizabeth B. Prelogar, who is the U.S. solicitor general and representing the Biden administration, explained to the judges that the law in question specifically considered gender as a factor.
In this situation, if a state prevents a young person who was born female from getting testosterone to transition to male, but allows a young person who was born male to receive the same treatment, it is using a gender-based distinction. Therefore, the state must provide a strong reason for this law when challenged.
During the court proceedings, Tennessee’s attorney general, Jonathan Skrmetti, stated that the state’s law does not discriminate based on gender.
The author mentioned that there is a distinction made between minors who are seeking drugs for gender transition and minors seeking drugs for other medical reasons. This distinction does not solely apply to one gender, as both boys and girls can be on either side of this line.
Ms. Prelogar recommended to the Supreme Court that discrimination based on transgender status should be carefully examined, but it is doubtful 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 trigger heightened scrutiny in court for many years. The chances of the court adding new classifications now are extremely slim, according to the report.
Adam Liptak writes about the Supreme Court and 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. Learn more about Adam Liptak.
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