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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 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 this basis are usually analyzed with a less strict and more deferential judicial review process known as rational basis review. Any reasonable justification is typically accepted, and it is likely that the state’s claim of interest in medical safety would meet this standard.
However, laws that show bias based on gender are held to a higher standard of review called heightened scrutiny. This means states must prove that these laws are significantly connected to achieving an important goal. This can be a difficult obstacle to overcome.
However, the two parties have differing opinions on whether the Tennessee law shows bias or prejudice based on gender.
Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, informed the justices that the law in question specifically considered gender.
In her writing, she explained that if a state allows an adolescent assigned male at birth to receive testosterone treatment to transition to living as a male, but prohibits an adolescent assigned female at birth from doing the same, it is using a sex-based classification. This means that the state must provide a strong justification for its law under closer scrutiny.
During a court proceeding, Jonathan Skrmetti, who serves as the attorney general of Tennessee, stated that the state’s law does not discriminate based on gender.
The author stated that there is a distinction made between minors who are seeking drugs for gender transition and those seeking drugs for other medical reasons. This differentiation applies to both boys and girls.
Ms. Prelogar recommended to the Supreme Court that discrimination based on transgender identity should be closely examined, 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 that would require closer scrutiny by the court in many years. The report stated that it is highly unlikely for the court to make any changes to this list now.
Adam Liptak is a journalist who reports on the Supreme Court and writes a column called Sidebar, focusing on legal news. He studied at 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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