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What does ‘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 goes against the equal protection clause of the Constitution.
Laws that are questioned on this basis are usually examined by the courts with a more lenient approach known as rational basis review. Any justification is typically accepted, and it is likely that the state’s interest in 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 significantly connected to achieving an important goal. This is a significant challenge.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias or prejudice based on gender.
During a court hearing, Elizabeth B. Prelogar, the U.S. solicitor general for the Biden administration, explained to the judges that the law in question specifically considered gender.
In the scenario she described, if a state prohibits a person who was assigned female at birth as an adolescent from receiving testosterone to transition to living as a male, but allows a person who was assigned male at birth to receive the same treatment, then the state is using a gender-based classification. As a result, the state must provide a strong justification for this law.
During a hearing, Tennessee’s attorney general, Jonathan Skrmetti, stated that the state’s law does not differentiate based on gender.
"He explained that there is a distinction made between minors who are seeking drugs for gender transition and those seeking drugs for other medical reasons. Both boys and girls can be found on either side of this distinction."
Ms. Prelogar recommended to the Supreme Court that discriminations based on transgender status should be closely examined, but it is unlikely that this argument will succeed.
According to a report from Georgetown’s Supreme Court Institute in September, there have been no new classifications added to the list that require closer scrutiny by the court in many years. The report states that it is highly unlikely that the court will add any new classifications to this list now.
Adam Liptak is a journalist who specializes in covering the Supreme Court and writes a column called Sidebar that focuses on legal news. 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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