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What does the term ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
Writing from the capital
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.
When laws are questioned based on this reason, they are usually reviewed by the courts with a more lenient and respectful approach known as rational basis review. Any reasoning is typically accepted, and it is highly likely that the state’s concern for medical safety would pass this test easily.
However, laws that show bias towards a specific gender are closely examined under a stricter form of review, requiring states to prove that these laws are significantly linked to achieving an important goal. This presents a significant challenge.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias on the basis of 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 sex as a crucial factor.
In her writing, she gave an example where a state allows adolescent assigned male at birth to receive testosterone treatment to live as a male, but prohibits the same treatment for adolescent assigned female at birth. She argued that this is a sex-based classification that the state must justify under stricter scrutiny.
During a court hearing, Jonathan Skrmetti, the attorney general of Tennessee, mentioned that the state’s law does not discriminate based on gender.
"He stated that there is a distinction between minors wanting drugs for gender transition and minors wanting drugs for other medical reasons. Both boys and girls can be on either side of this distinction."
Ms. Prelogar recommended to the Supreme Court that discrimination based on transgender identity 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 that would warrant closer scrutiny in 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 news in his column called Sidebar. He studied at Yale Law School and worked as a lawyer for 14 years before starting his career at The New York Times in 2002.
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