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What does the term ‘heightened scrutiny’ mean and why is it significant?
Written by Adam Liptak
Filing a report
The issue being considered by the justices is 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 challenged based on this reason, they are usually reviewed by the court with a less critical and more deferential approach known as rational basis review. Any reasonable explanation will be enough, and it is likely that the state’s claim of wanting to ensure medical safety would easily meet this standard.
However, laws that show bias towards a specific gender are closely examined and require states to prove that they are strongly linked to achieving a significant goal. This is a challenging requirement to meet.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias based on gender.
Elizabeth B. Prelogar, who is the current U.S. solicitor general and is representing the Biden administration, informed the justices that the law in question specifically considered gender as a factor.
In the scenario she described, if a state prevents a female adolescent from transitioning to male with testosterone but allows a male adolescent to do so, it is using a gender-based classification. Therefore, the state must provide a valid reason for such a law under closer scrutiny.
During the court proceedings, Jonathan Skrmetti, who serves as Tennessee’s attorney general, stated that the state’s law does not contain any gender-based distinctions.
He explained that there is a distinction made between underage individuals who are seeking drugs for gender transition and those who are seeking drugs for other medical reasons. This distinction applies to both boys and girls.
Ms. Prelogar suggested that the Supreme Court should consider transgender status as a basis for discrimination to be subject to closer examination, however, it is not likely that this argument will be successful.
A report from Georgetown’s Supreme Court Institute in September mentioned that there have been no new classifications triggering increased scrutiny added by the court for many years. The report also stated that the chances of the court adding any new classifications now are extremely low.
Adam Liptak is a journalist who reports on the Supreme Court and writes a column called Sidebar, focusing on legal news. 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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