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What does "heightened scrutiny" mean and why is it important?
Written by Adam Liptak
Writing from the capital
The issue being considered by the judges is whether a Tennessee law that prohibits certain medical treatments for transgender youth goes against the equal protection clause of the Constitution.
Laws that are questioned on this basis are usually examined by courts with a less strict and more deferential approach known as rational basis review. Any reasonable explanation is typically accepted, and it is likely that the state’s argument for medical safety would meet this standard.
However, laws that show bias based on gender are closely examined and held to a higher standard of review. States must prove that these laws are significantly linked to achieving a crucial goal, which can be a difficult challenge.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias or prejudice based on gender.
Elizabeth B. Prelogar, the U.S. solicitor general, who is representing the Biden administration, explained to the justices that the law in question specifically considered gender as a factor.
In her writing, she mentioned that if a state does not allow a female adolescent to take testosterone to transition to male, but permits a male adolescent to do so, it is using a sex-based distinction that needs to be justified under closer examination.
During a court session, Jonathan Skrmetti, who is the attorney general for Tennessee, mentioned that the law in their state does not make any distinctions based on gender.
The author mentioned that there is a distinction made between minors seeking drugs for gender transition and those seeking 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 that the Supreme Court should consider giving special attention to cases involving discrimination against transgender individuals, 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 to trigger heightened scrutiny in the court for many years. The chances of the court adding any new classifications now are extremely unlikely.
Adam Liptak is a journalist who reports on the activities of the Supreme Court and pens a column called Sidebar, which focuses 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, click
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