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What does ‘heightened scrutiny’ mean, and why is it significant?
Written by Adam Liptak
Writing from the capital
The justices are considering 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 typically reviewed by the courts in a more lenient and deferential manner known as rational basis review. Nearly any reason will be considered acceptable, and it is highly likely that the state’s claim of interest in medical safety would meet this standard.
However, laws that show bias towards a specific gender are closely examined, requiring states to prove that the laws are significantly connected to reaching an important goal. This presents a significant challenge.
However, the two sides have differing opinions on whether the Tennessee law shows bias or discrimination 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 considers gender as a factor.
In the example she provided, if a state restricts a young person who was identified as female at birth from taking testosterone to transition to male, but allows a young person identified as male at birth to take the same treatment, then the state is using gender as a basis for its decision. As a result, the state must provide a strong justification for this law.
During the court proceedings, Jonathan Skrmetti, who serves as Tennessee’s attorney general, stated that the state’s law does not make any distinctions based on gender.
The author explained that there is a distinction made between minors who are looking for drugs for gender transition and minors who need drugs for other medical reasons. He added that both boys and girls can be found on either side of this distinction.
Ms. Prelogar suggested that the Supreme Court should consider giving special attention to cases involving discrimination based on transgender status. However, 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 categories added to the list of classifications that require closer examination by the court in many years. The report also states that the chances of the court adding new categories now are extremely low.
Adam Liptak is a journalist who specializes in reporting on the Supreme Court and legal news in his column, Sidebar. He attended 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 profile.
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