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What does ‘heightened scrutiny’ mean, and why is it important to understand?
Written by Adam Liptak.
Writing from the nation
The issue being considered by the judges is whether a law in Tennessee that 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 typically reviewed by the courts with a lenient and deferential approach known as rational basis review. In this type of scrutiny, almost any reason presented by the state will be acceptable, and it is highly likely that the state’s interest in medical safety would meet this standard.
Laws that show bias towards a specific gender are closely examined and require states to prove that they are very closely connected to achieving an important goal. This is a significant challenge to meet.
The two sides have conflicting opinions on whether the Tennessee law shows bias towards a particular gender.
During a legal proceeding, Elizabeth B. Prelogar, who is the U.S. solicitor general and represents the Biden administration, explained to the justices that the law in question specifically considered gender.
In her message, she mentioned that if a state allows an adolescent who was born female to not receive testosterone to transition to male, while allowing an adolescent born male to receive the same treatment, it is using a gender-based classification. As a result, the state must provide a strong reason for this law.
During a court hearing, Tennessee’s attorney general, Jonathan Skrmetti, stated that the state’s law does not involve any discrimination based on sex.
The author explained that there is a distinction made between minors looking for drugs for gender transition and minors looking for drugs for different medical reasons. This distinction applies to both boys and girls.
Ms. Prelogar suggested to the Supreme Court that discrimination based on transgender status should be closely examined, but it is unlikely that this argument will be successful.
A report in September from Georgetown’s Supreme Court Institute mentioned that the court has not included any new classifications that would require closer examination in a long time. The report also stated that it is highly unlikely for the court to add any new classifications now.
Adam Liptak reports on the Supreme Court and writes a column called Sidebar that discusses 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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