The question before the justices is whether the challenged Tennessee law, which bans some kinds of medical treatments for transgender minors, violates the Constitution’s equal protection clause.
Laws challenged on that ground are ordinarily subject to relaxed and deferential judicial scrutiny called rational basis review. Almost any justification will suffice, and there is little question that the state’s stated interest in medical safety would clear that hurdle.
But laws that discriminate based on sex are subject to heightened scrutiny, a much more demanding form of review that requires states to demonstrate that the laws are substantially related to achieving an important objective. That is a substantial hurdle.
But the parties disagree about whether the Tennessee law discriminates based on sex.
Elizabeth B. Prelogar, the U.S. solicitor general, representing the Biden administration, told the justices that the challenged law necessarily took account of sex.
“If, for example,” she wrote, “a state prohibits an adolescent assigned female at birth from receiving testosterone to live as a male, but allows an adolescent assigned male at birth to receive the same treatment, the state has relied on a sex-based classification — and thus must justify its law under heightened scrutiny.”
Jonathan Skrmetti, Tennessee’s attorney general, told the justices that his state’s law “includes no sex classification.”
“It draws a line between minors seeking drugs for gender transition and minors seeking drugs for other medical purposes,” he wrote. “And boys and girls fall on both sides of that line.”
Ms. Prelogar also urged the Supreme Court to rule that distinctions based on transgender status as such must be subjected to heightened scrutiny, but that argument is unlikely to prevail.
“The court has not added to the list of classifications triggering heightened scrutiny in decades,” a report in September from Georgetown’s Supreme Court Institute noted. “The odds of this court doing so now are less than zero.”
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