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What does ‘heightened scrutiny’ mean, and why is it important to understand?
Written by Adam Liptak
Reporting live from the
The justices are considering whether a Tennessee law that prohibits certain medical treatments for transgender minors is in violation of the equal protection clause of the Constitution.
Laws that are questioned on those grounds are usually reviewed by the 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 claim of interest in medical safety would meet this standard.
However, laws that show bias based on gender are closely examined, with a more rigorous review process that obliges states to prove that these laws are significantly linked to achieving a crucial goal. This presents a significant challenge.
However, there is a disagreement between the parties on whether the Tennessee law shows bias or prejudice based on gender.
During a court session, Elizabeth B. Prelogar, who is the U.S. solicitor general and speaking on behalf of the Biden administration, explained to the judges that the law being questioned had to consider gender.
In this scenario, the author explains that if a state has a policy that prevents a transgender boy from receiving hormone treatment while allowing a transgender girl to receive the same treatment, it is discriminating based on sex. As a result, the state must provide a strong justification for this law.
During a court hearing, Tennessee’s attorney general, Jonathan Skrmetti, stated that the state’s law does not make any distinctions based on sex.
The author pointed out that there is a distinction between minors seeking drugs for gender transition and minors seeking drugs for other medical reasons. He noted that both boys and girls can be found on either side of this distinction.
Ms. Prelogar recommended to the Supreme Court that discrimination based on someone being transgender should be closely 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 the court for many years. The chances of the court adding any new classifications now are extremely unlikely.
Adam Liptak is a journalist who focuses on reporting about the Supreme Court and legal updates in his column called 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, visit his page.
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