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What does ‘heightened scrutiny’ mean and why is it important?
Written by Adam Liptak
Writing from the capital
The issue presented to the justices is whether a Tennessee law, which 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 by courts with a relaxed and deferential attitude known as rational basis review. In this type of review, almost any reasoning or explanation will be considered acceptable, and it is highly likely that the state’s claim of interest in medical safety would easily pass this test.
However, laws that show bias based on gender are closely examined and must meet a higher standard of review. States must prove that these laws are significantly connected to achieving an important goal. This can be a challenging requirement to meet.
However, the parties have conflicting opinions on whether the Tennessee law shows bias or favoritism towards a particular gender
Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, informed the judges that the law in question considers sex as a crucial factor.
In the scenario she described, if a state prevents a teenager who was born female from taking testosterone to transition to a male, while allowing a teenager who was born male to do the same, it is using a gender-based distinction. As a result, the state must provide a compelling reason for this law under closer examination.
During a court session, Jonathan Skrmetti, who serves as the attorney general for Tennessee, stated that the state’s law does not involve any gender-based distinctions.
The author stated that there is a distinction between minors who are seeking drugs for gender transition and those seeking drugs for other medical reasons. Both boys and girls can fall into either category.
Ms. Prelogar recommended 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 classifications added to the list that require closer scrutiny in court for many years. The report also suggests that it is highly unlikely for the court to add any new classifications to this list at this time.
Adam Liptak is a journalist who specializes in reporting on the Supreme Court and legal news through his column, 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. To learn more about Adam Liptak, click here.
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