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What does the term ‘heightened scrutiny’ mean, and why is it important?
Written by Adam Liptak
Reporting live from the
The issue being considered by the justices is whether a Tennessee law that prohibits certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
Laws that are challenged on the basis of rationality are usually reviewed by the courts with a less strict and deferential approach known as rational basis review. Any reasonable justification will usually be enough, and it is highly likely that the state’s interest in medical safety would meet this standard.
However, laws that show bias based on gender are closely examined under heightened scrutiny, a more rigorous review process that necessitates states to prove that the laws are significantly connected to accomplishing an important goal. This presents a significant challenge.
However, there is a disagreement between the parties regarding whether the Tennessee law shows bias or prejudice based on gender.
Elizabeth B. Prelogar, who is the U.S. solicitor general and is representing the Biden administration, stated to the justices that the law in question specifically considered gender as a factor.
In the example she provided, if a state prevents a young person who was assigned female at birth from receiving testosterone in order to transition to living as a male, while allowing a young person who was assigned male at birth to receive the same treatment, the state is using a gender-based categorization. As a result, the state must have a valid reason for this law that can withstand closer examination.
During a court hearing, Jonathan Skrmetti, who serves as Tennessee’s attorney general, stated that the state’s law does not discriminate based on gender.
The author mentioned that there is a distinction between minors who are seeking drugs for gender transition and minors who are seeking drugs for other medical reasons. This differentiation applies to both boys and girls.
Ms. Prelogar advised the Supreme Court to consider giving special attention to cases involving discrimination based on transgender identity, but it is not likely that this argument will be successful.
A report from Georgetown’s Supreme Court Institute in September pointed out that the court has not included any new categories for increased scrutiny in many years. The report also stated that the chances of the court adding new categories now are extremely low.
Adam Liptak is a journalist who reports on the Supreme Court and writes 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.
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