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What does ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
Reporting from the nation
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 these grounds are usually reviewed with a lenient and deferential approach by the courts, known as rational basis review. Any reasonable explanation is typically acceptable, and it is highly likely that the state’s concern for medical safety would meet this standard.
However, laws that show favoritism based on gender are closely examined and must meet a higher standard of review. States must prove that these laws are significantly connected to achieving a vital goal. This can be a difficult obstacle to overcome.
However, the two sides have differing opinions on whether the Tennessee law shows bias or prejudice based on gender.
Elizabeth B. Prelogar, the lawyer representing the U.S. government, argued to the judges that the disputed law specifically considered gender.
In one scenario, the author explained that if a state prevents a young person who was born female from taking testosterone to transition to male, while allowing a young person who was born male to undergo the same treatment, the state is using a classification based on sex. As a result, the state must provide a strong justification for this law.
During the court proceedings, Jonathan Skrmetti, who is the attorney general of Tennessee, stated that the state’s law does not contain any distinctions based on gender.
The author stated that there is a distinction made between minors who are seeking drugs for gender transition and those seeking drugs for other medical reasons. He also pointed out that both boys and girls can be found on either side of this distinction.
Ms. Prelogar recommended that the Supreme Court should consider applying stricter scrutiny 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 that require closer examination by the court in many years. The report also stated that the chances of the court adding new classifications now are extremely unlikely.
Adam Liptak is a journalist who reports on the Supreme Court and writes a column called Sidebar on legal news. 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, click here.
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