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What does ‘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 the Tennessee law, which prohibits certain medical treatments for transgender minors, goes against the equal protection clause of the Constitution.
When laws are questioned based on this reason, they are typically reviewed by courts with a more lenient and respectful approach known as rational basis review. Any reasonable explanation will be accepted, and it is highly likely that the state’s argument for medical safety would easily pass this level of scrutiny.
However, laws that show bias towards a specific gender are closely examined with a more rigorous review process, where states must prove that the laws are significantly linked to accomplishing an important goal. This presents a significant challenge.
However, there is a disagreement between the parties on whether the Tennessee law shows bias based on gender.
During the court hearing, Elizabeth B. Prelogar, who serves as the U.S. solicitor general for the Biden administration, argued that the law in question considers sex as a key factor.
In this scenario, the author explained that if a state prevents a young person who was born female from taking testosterone to transition to male, but allows a young person who was born male to undergo the same treatment, the state is using gender as a basis for its decision – and therefore needs to provide a strong justification for its law.
During a court session, Jonathan Skrmetti, who serves as the attorney general of Tennessee, mentioned that the state’s law does not contain any form of discrimination based on gender.
The author highlighted the distinction between minors seeking drugs for gender transition and those seeking drugs for other medical reasons. 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 subjecting distinctions based on transgender status to a higher level of scrutiny. However, it is unlikely that this argument will be successful.
According to a September report from Georgetown’s Supreme Court Institute, there has been no new classifications added to trigger heightened scrutiny in the court for many years. The report suggests that it is highly unlikely for the court to do so now.
Adam Liptak is a journalist who reports on the Supreme Court and writes a column called Sidebar, which focuses on legal news. He studied law at 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 page.
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