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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 the Tennessee law that prohibits certain medical treatments for transgender minors is in violation of the equal protection clause of the Constitution.
When laws are questioned on this basis, they typically undergo a less strict judicial review known as rational basis review. In this type of review, almost any reason provided for the law will be considered acceptable, and it is highly likely that the state’s stated concern for medical safety would meet this standard.
However, laws that show favoritism or bias towards one gender are closely examined and held to a higher standard of review. States must prove that these laws are significantly connected to achieving a crucial goal. This can be a difficult challenge to overcome.
However, the two sides have conflicting opinions on whether the Tennessee law shows bias towards a particular gender.
During a court session, Elizabeth B. Prelogar, who is the solicitor general of the United States and is representing the Biden administration, argued that the law in question specifically considered gender as a factor.
In one scenario, she explained that if a state allows an adolescent assigned male at birth to receive testosterone treatment to transition to living as a male, but prohibits an adolescent assigned female at birth from receiving the same treatment, the state is using a sex-based classification. This means that the state must provide a strong justification for its law when it comes under close scrutiny.
During a court session, Jonathan Skrmetti, who serves as Tennessee’s attorney general, stated that the law in his state does not make any distinctions based on gender.
The author stated that there is a distinction made between minors who are seeking drugs for gender transition and minors seeking drugs for other medical reasons. 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 distinctions made based on transgender status, although 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 that would warrant closer examination by the court in many years. The report suggests that the chances of the court adding new categories now are extremely unlikely.
Adam Liptak is a journalist who specializes in covering news related to the Supreme Court and legal issues. He also writes a column called Sidebar that focuses on recent legal developments. Liptak 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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