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What does "heightened scrutiny" mean and why is it important?
Written by Adam Liptak
Reporting live from the
The issue being considered by the judges is whether a Tennessee law that prohibits certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
When laws are challenged based on this reason, they are usually reviewed by the courts with a less strict and more deferential approach known as rational basis review. Any reason given for the law is generally accepted, and it is likely that the state’s claim of prioritizing medical safety would pass this review easily.
Laws that show bias based on gender are closely examined with a more rigorous form of review, requiring states to prove that these laws are significantly linked to achieving an important goal. This presents a significant challenge.
However, the parties have conflicting opinions on whether the Tennessee law shows bias towards a specific gender.
During a court session, Elizabeth B. Prelogar, who is the U.S. solicitor general and represents the Biden administration, informed the justices that the law in question considers gender as a key factor.
In this case, she explained that if a state prevents a female adolescent from taking testosterone to transition to male, while allowing a male adolescent to do the same, it is using a gender-based distinction and must provide a valid reason for this law under increased scrutiny.
During a legal proceeding, Jonathan Skrmetti, who serves as Tennessee’s attorney general, stated that the state’s law does not contain any gender-based discrimination.
The author mentioned that there is a distinction between minors who are looking for drugs to transition their gender and minors who need drugs for other medical reasons. He pointed out 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 transgender status should be subject to closer scrutiny, but it is doubtful that this argument will be successful.
A report from Georgetown’s Supreme Court Institute in September stated that the court has not included any new categories that would require closer scrutiny in many years. The report also mentioned that the chances of the court adding new classifications for heightened scrutiny now are extremely unlikely.
Adam Liptak writes about the activities of the Supreme Court and authors a column called Sidebar focusing on legal changes. He went to Yale Law School and worked as a lawyer for 14 years before starting at The Times in 2002. Learn more about Adam Liptak.
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