Text of the California Anti-Parody Statute Ripe for Appellate Review on Constitutional Grounds

 

California's AB 730 prohibits use of digital tools to make fun of candidates for public office

 

In our prior post we discussed challenges to a new California law making it a crime to parody political figures using digital tools such as Artificial Intelligence under the rubric the public, and, in particular, voters must be "protected" from such. 

 

The text of this new law, in all its breadth, is set forth below with key portions italicized, including provisions making it illegal to use digital tools to create a "false representation" of a candidate or, God forbid, harm their reputation:

 

 

The people of the State of California do enact as follows:

SECTION 1.

 Section 35 of the Code of Civil Procedure is amended to read:

35.

 (a) Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, election contests, and actions under Section 20010 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be given precedence.

(b) This section shall remain in effect only until January 1, 2023, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2023, deletes or extends that date.

SEC. 2.

 Section 35 is added to the Code of Civil Procedure, to read:

35.

 (a) Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, and election contests shall be placed on the calendar in the order of their date of filing and shall be given precedence.

(b) This section shall become operative January 1, 2023.

SEC. 3.

 Section 20010 of the Elections Code is amended to read:

20010.

 (a) Except as provided in subdivision (b), a person, firm, association, corporation, campaign committee, or organization shall not, with actual malice, produce, distribute, publish, or broadcast campaign material that contains (1) a picture or photograph of a person or persons into which the image of a candidate for public office is superimposed or (2) a picture or photograph of a candidate for public office into which the image of another person or persons is superimposed. “Campaign material” includes, but is not limited to, any printed matter, advertisement in a newspaper or other periodical, television commercial, or computer image. For purposes of this section, “actual malice” means the knowledge that the image of a person has been superimposed on a picture or photograph to create a false representation, or a reckless disregard of whether or not the image of a person has been superimposed on a picture or photograph to create a false representation.

(b) A person, firm, association, corporation, campaign committee, or organization may produce, distribute, publish, or broadcast campaign material that contains a picture or photograph prohibited by subdivision (a) only if each picture or photograph in the campaign material includes the following statement in the same point size type as the largest point size type used elsewhere in the campaign material: “This picture is not an accurate representation of fact.” The statement shall be immediately adjacent to each picture or photograph prohibited by subdivision (a).

(c) (1) Any registered voter may seek a temporary restraining order and an injunction prohibiting the publication, distribution, or broadcasting of any campaign material in violation of this section. Upon filing a petition under this section, the plaintiff may obtain a temporary restraining order in accordance with Section 527 of the Code of Civil Procedure.

(2) A candidate for public office whose likeness appears in a picture or photograph prohibited by subdivision (a) may bring a civil action against any person, firm, association, corporation, campaign committee, or organization that produced, distributed, published, or broadcast the picture or photograph prohibited by subdivision (a). The court may award damages in an amount equal to the cost of producing, distributing, publishing, or broadcasting the campaign material that violated this section, in addition to reasonable attorney’s fees and costs.

(d) (1) This section does not apply to a holder of a license granted pursuant to the federal Communications Act of 1934 (47 U.S.C. Sec. 151 et seq.) in the performance of the functions for which the license is granted.

(2) This section does not apply to the publisher or an employee of a newspaper, magazine, or other periodical that is published on a regular basis for any material published in that newspaper, magazine, or other periodical. For purposes of this subdivision, a “newspaper, magazine, or other periodical that is published on a regular basis” does not include any newspaper, magazine, or other periodical that has as its primary purpose the publication of campaign advertising or communication, as defined by Section 304.

(e) This section shall become operative on January 1, 2023.

SEC. 4.

 Section 20010 is added to the Elections Code, to read:

20010.

 (a) Except as provided in subdivision (b), a person, committee, as defined in Section 82013 of the Government Code, or other entity shall not, within 60 days of an election at which a candidate for elective office will appear on the ballot, distribute, with actual malice, materially deceptive audio or visual media, as defined in subdivision (e), of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.

(b) (1) The prohibition in subdivision (a) does not apply if the audio or visual media includes a disclosure stating: “This _____ has been manipulated.”

(2) The blank in the disclosure required by paragraph (1) shall be filled with whichever of the following terms most accurately describes the media:

(A) Image.

(B) Video.

(C) Audio.

(3) (A) For visual media, the text of the disclosure shall appear in a size that is easily readable by the average viewer and no smaller than the largest font size of other text appearing in the visual media. If the visual media does not include any other text, the disclosure shall appear in a size that is easily readable by the average viewer. For visual media that is video, the disclosure shall appear for the duration of the video.

(B) If the media consists of audio only, the disclosure shall be read in a clearly spoken manner and in a pitch that can be easily heard by the average listener, at the beginning of the audio, at the end of the audio, and, if the audio is greater than two minutes in length, interspersed within the audio at intervals of not greater than two minutes each.

(c) (1) A candidate for elective office whose voice or likeness appears in a materially deceptive audio or visual media distributed in violation of this section may seek injunctive or other equitable relief prohibiting the distribution of audio or visual media in violation of this section. An action under this paragraph shall be entitled to precedence in accordance with Section 35 of the Code of Civil Procedure.

(2) A candidate for elective office whose voice or likeness appears in a materially deceptive audio or visual media distributed in violation of this section may bring an action for general or special damages against the person, committee, or other entity that distributed the materially deceptive audio or visual media. The court may also award a prevailing party reasonable attorney’s fees and costs. This subdivision shall not be construed to limit or preclude a plaintiff from securing or recovering any other available remedy.

(3) In any civil action alleging a violation of this section, the plaintiff shall bear the burden of establishing the violation through clear and convincing evidence.

(d) (1) This section shall not be construed to alter or negate any rights, obligations, or immunities of an interactive service provider under Section 230 of Title 47 of the United States Code.

(2) This section does not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts materially deceptive audio or visual media prohibited by this section as part of a bona fide newscast, news interview, news documentary, or on-the-spot coverage of bona fide news events, if the broadcast clearly acknowledges through content or a disclosure, in a manner that can be easily heard or read by the average listener or viewer, that there are questions about the authenticity of the materially deceptive audio or visual media.

(3) This section does not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, when it is paid to broadcast materially deceptive audio or visual media.

(4) This section does not apply to an internet website, or a regularly published newspaper, magazine, or other periodical of general circulation, including an internet or electronic publication, that routinely carries news and commentary of general interest, and that publishes materially deceptive audio or visual media prohibited by this section, if the publication clearly states that the materially deceptive audio or visual media does not accurately represent the speech or conduct of the candidate.

(5) This section does not apply to materially deceptive audio or visual media that constitutes satire or parody.

(e) As used in this section, “materially deceptive audio or visual media” means an image or an audio or video recording of a candidate’s appearance, speech, or conduct that has been intentionally manipulated in a manner such that both of the following conditions are met:

(1) The image or audio or video recording would falsely appear to a reasonable person to be authentic.

(2) The image or audio or video recording would cause a reasonable person to have a fundamentally different understanding or impression of the expressive content of the image or audio or video recording than that person would have if the person were hearing or seeing the unaltered, original version of the image or audio or video recording.

(f) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

(g) This section shall remain in effect only until January 1, 2023, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2023, deletes or extends that date.

 

(See https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB730.)

 

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Update: The War on Parody by Humorless Left-Wing Scolds Hits Roadblock

 

Federal Judge Finds that California law banning AI-generated fake videos unlawful but not unconstitutional, setting up issue for further judicial review.

Those who do not want their political views satirized — because these views are so silly they are ripe for humor — have attempted to ban such speech under the rubric that such is “misleading”, “dangerous,” etc.  Indeed, they have made quite the effort over the last few years to ban, prosecute, and silence parody.  The Christian satirical website Babylon Bee has taken the brunt of much of this effort, as those who attempt to censor in the name of “safety” have labeled the site “misinformation.” (See  https://www.newsweek.com/satire-misinformation-babylon-bee-says-mocking-woke-moral-purpose-1779062” where left-wing Newsweek — which no doubt covets it own First Amendment protection — took the stance that there is a real concern that such parody is “misinformation.”)  Indeed, the New York Times sold it soul to eschew freedom of speech and did its best to silence the Babylon Bee, as Newsweek pointed out:

In March, 2021, a New York Times reporter using information from Snopes [an online "fact checking" service which the New York Post termed "pants on fire partisans"] described the Babylon Bee as a "far-right misinformation site" that "trafficked in misinformation."

No wonder — BabylonBee videos include an appearance by Satan himself bemoaning the fact that Roe v. Wade was overturned and fewer babies may die. (See https://www.youtube.com/watch?v=0LI4UEHUvtM, and note that even today Google’s YouTube tries to counter this satire by a note attempting to characterize the end of a human life as “the loss of a pregnancy” as if the baby was simply "misplaced.") 

Of course, the Babylon Bee has fired back against left-wing cancel culture with headlines such as this “Trump Tweet Reading ‘Good Morning America’ Labeled as “Misinformation:’”

 

(See https://babylonbee.com/news/trump-tweet-reading-good-morning-america-labeled-as-misinformation.)

But this effort took an even darker turn with the prosecution and sentencing of Douglas MacKay by the Biden-era Department of Justice for jokingly asking Hillary Clinton’s voters to “vote by text,” implying they were so stupid they might do so.  I intend to repeat this tweet in the future, so if AOC wins the 2028 election and my posting stops, you will know that I, too have been arrested.  Of course, there is no humor associated with (hashtag) “I’m With Her” cabal so he was prosecuted for doing so.  The Department of Justice still lists this on its website as one of its accomplishments (https://www.justice.gov/usao-edny/pr/social-media-influencer-douglass-mackey-sentenced-after-conviction-election) and the website still lists someone as the “contact” for the prosecution, with no apparent embarrassment regarding the individuals listed:

Contact

John Marzulli


Danielle Blustein Hass


U.S. Attorney's Office

(718) 254-6323

(See https://www.justice.gov/usao-edny/pr/social-media-influencer-douglass-mackey-sentenced-after-conviction-election.)

This suit was, of course, brought in the Eastern District of New York, where fine American citizens found Mr. Mackay guilty of a crime for a very humorous tweet.

Which brings us to California’s recent law banning AI “fakes,” including — of course — political satire.  There are reports that this law  was specifically designed to ban videos such as one published on “X” where (an edited) Kamala Harris called herself the “ultimate diversity hire.”  This was offensive because, according to those who supported the law, she did not say this and she certainly was nothing like a diversity hire.

As reported by Politico (see https://www.politico.com/news/2025/08/05/elon-musk-x-court-win-california-deepfake-law-00494936), yesterday one Federal Judge, the Hon. John Mendez, ruled that the law did not pass muster because it is preempted by Federal Law protecting platforms from claims for user-generated content.  As Politico explained, the Federal Court did not need to, and therefore did not, rule on the obvious First Amendment issues.

This is important because the broad use of the term “deep fake” may be used to attempt to ban speech under the guise that we are “protecting” the public.  Given that even content generated by analog means, such as a photograph, will likely be edited by software which includes some sort of AI tools (even if these tools merely add a border to a photo), a ban on “AI-generated” content at election time, which is what Governor Newsom and his legislative cohorts attempted, potentially bans all political satire created by digital tools.

Given that this law is still enforceable in other contexts, the issue of using digital tools for political satire and attempts to ban such requires further judicial review.  At some point, then, the Supreme Court will need to reiterate that satire and humor and pointed and sharp speech about elections and political issues are at the heart of what the First Amendment protects.  

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Happy 249th Birthday to the Best and Fairest and Most Equitable Nation on Earth

During the next 365 days we will be celebrating America 250 by highlighting the great moments of our history, present, and future.  I thought it befitting to start things off with what I call our "unofficial National Anthem," the words to During the next 365 days we will be celebrating America 250 by highlighting the great moments of our history, present, and future.  I thought it befitting to start things off with what I call our "unofficial National Anthem," the words to America the Beautiful. 

My favorite verse is the last, which begins “O beautiful for patriot dream:”

America the Beautiful

by Katherine Lee bates

 

O beautiful for spacious skies,
For amber waves of grain,
For purple mountain majesties
Above the fruited plain!
America! America!
God shed His grace on thee,
And crown thy good with brotherhood
From sea to shining sea!
O beautiful for pilgrim feet
Whose stern impassioned stress,
A thoroughfare for freedom beat
Across the wilderness!
America! America!
God mend thine every flaw,
Confirm thy soul in self-control,
Thy liberty in law!
O beautiful for heroes proved
In liberating strife,
Who more than self their country love
And mercy more than life!
America! America!
May God thy gold refine
Till all success be nobleness,
And every gain divine!
O beautiful for patriot dream
That sees beyond the years,
Thine alabaster cities gleam
Undimmed by human tears!
America! America!
God shed His grace on thee,
And crown thy good with brotherhood
From sea to shining sea!
Oh beautiful for halcyon skies
For amber waves of grain
For purple mountain majesties
Above the enameled plain!
America! America!
God shed His grace on thee,
Till souls wax fair as earth and air
And music-hearted sea!
O beautiful for pilgrim feet
Whose stern impassioned stress,
A thoroughfare for freedom beat
Across the wilderness!
America! America!
God shed His grace on thee,
Till paths be wrought through wilds of thought
By pilgrims foot and knee!
Oh beautiful for glory-tale
Of liberating strife,
When once and twice for man’s avail
Men lavished precious life!
America! America!
God shed His grace on thee,
Till selfish gain no longer strain
The banner of the free!
O beautiful for patriot dream
That sees beyond the years,
Thine alabaster cities gleam
Undimmed by human tears!
America! America!
God shed His grace on thee,
Till nobler men keep once again
Thy whiter jubilee!

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Castro v. Trump: the Supreme Court limits the scope of “universal injunctions” to prevent an “imperial judiciary'

 

The Supreme Court correctly limits the so-called equitable power of federal trial courts to avoid what Justice Barrett terms an “imperial judiciary”


Many Americans have been wondering how a trial court judge in one United States District Court has the authority to issue orders and injunctions covering not merely the parties in that case, meaning the plaintiffs in that case, but also the conduct of the United States government within the territories of the United States and indeed, as we have seen, anywhere on the planet Earth, towards entire classes of persons not a party to the suit.  The judicial and linguistic sleight-of-hand used to justify these “universal injunctions” is that such injunctions may be used in suits filed in “equity,” meaning they seek equitable relief, and that the equitable powers of a Federal trial court therefore extend so far as to be almost unlimited. 
 

In the majority opinion of the United States Supreme Court in Castro v. Trump (June 27, 2025) no. 24A884 (https://www.supremecourt.gov/opinions/24pdf/24a884_8n59.pdf), Associate Justice Amy C. Barrett eviscerates this argument by pointing out what equitable “jurisdiction” the courts of the United States do and do not have.  Toward this, she explains how this jurisdiction must necessarily be tethered to the Judicial Act of 1791, wherein Congress set the jurisdiction of our federal courts, given that Article III does not contemplate such injunctions but instead leaves it to Congress to set Federal Court jurisdiction:

The question whether Congress has granted federal courts the authority to universally enjoin the enforcement
of an executive or legislative policy plainly warrants our re-
view. . . .
It is easy to see why. By the end of the Biden administration, we had reached “a state of affairs where almost every
major presidential act [was] immediately frozen by a federal district court.” W. Baude & S. Bray, Comment, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153, 174 (2023).
The trend has continued: During the first 100 days of the second Trump administration, district courts issued approximately 25 universal injunctions. Congressional Research Service, J. Lampe, Nationwide Injunctions in the First Hundred Days of the Second Trump Administration (May 16, 2025). As the number of universal injunctions has increased, so too has the importance of the issue.
. . . . A universal injunction can be justified only as an exercise of equitable authority, yet Congress has granted federal courts no such
power.
The Judiciary Act of 1789 endowed federal courts with jurisdiction over “all suits . . . in equity,” §11, 1 Stat. 78, and still today, this statute “is what authorizes the federal courts to issue equitable remedies,” S. Bray & E. Sherwin, Remedies 442 (4th ed. 2024). Though flexible, this equitable authority is not freewheeling. We have held that the statutory grant encompasses only those sorts of equitable remedies “traditionally accorded by courts of equity” at our country’s inception. [Citation.] that the High Court of Chancery in England possesses”).

We must therefore ask whether universal injunctions are sufficiently “analogous” to the relief issued “ ‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act.’ ” Grupo Mexicano, 527 U. S., at 318–319 (quoting A. Dobie, Handbook of Federal Jurisdiction and Procedure
660 (1928)).
The answer is no: Neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding.
Equity offered a mechanism for the Crown “to secure justice where it would not be secured by the ordinary and existing processes of law.” G. Adams, The Origin of English Equity,
16 Colum. L. Rev. 87, 91 (1916). This “judicial prerogative of the King” thus extended to “those causes which the ordinary judges were incapable of determining.” J. Pomeroy, Equity Jurisprudence §31, p. 27 (1881). Eventually, the Crown instituted the “practice of delegating the cases” that “came before” the judicial prerogative “to the chancellor for his sole decision.” Id., §34, at 28. This “became the common mode of dealing with such controversies.” Ibid.
Of importance here, suits in equity were brought by and against individual parties. Indeed, the “general rule in Equity [was] that all persons materially interested [in the suit] [were] to be made parties to it.” 

. . .  In the ensuing decades, we consistently rebuffed requests
for relief that extended beyond the parties.  

. . .  In fact, universal injunctions were not a feature of federal court litigation until sometime in the 20th century. (Id., pp.4-9 ; footnotes and citations omitted.)

One might ask, then, if universal injunctions are indeed unconstitutional, what checks and balances — other than universal injunctions by a single trial court judge — may be used to make certain the Executive Branch does not have unlimited power.  The answer, which may be gleaned quickly by reading just a few hundred of the words in our brief Constitution, which set forth the power and limits of our three branches of government, is that it is Congress that is essentially delegated the power of checking the power of the presidency.  This includes the power of impeachment and removal from Office, and, more to the point, that only the House of Representatives may initiate the authorization to fund any initiative of the Executive Branch.  It is apparent, then, to anyone with a long-term perspective, that our system of checks and balances, as set by our founding fathers (and we use this gendered term without apology because it is historically accurate), got it right.  By contrast, a discrete subset of our current set of federal District Court Judges, meaning those who have been attempting to thwart our current President’s agenda by virtue of “universal injunctions” of breathtaking scope, have got it wrong.

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Hypothetical - when United States District Court judges set policy by national injunction, which injunction prevails?

 

Which "universal injunction" takes precedence when the hundreds of District Court Judges are allowed to set nation-wide policy?
 
The following hypothetical, which is answered below, illustrates the importance of today's Castro v. Trump opinion.
 
Let us suppose that one United States District Court judge denies a request for a nationwide injunction to bar deportation of illegal aliens, which aliens have already been issued (more than several months ago), a final order of removal and who argue that they are still entitled to challenge their impending removal to third-party countries as opposed to the country of their citizenship.  This court finds the aliens are likely, if not certainly, to lose on the merits because the 30-day time limit to challenge the original order of removal has long passed.

Suppose another judge facing the same issue rules that such an injunction is warranted by “equity,“ and that the United States government must afford these aliens an additional 30 days to appeal being moved to a third-party country, setting this 30 day deadline regarding where they are being taken as a mirror image of the prior 30 day deadline to appeal the final order of removal, which original deadline, as noted has long since passed.

A third District Court judge issues a similar injunction stating that even though these persons about to be deported to a third country are now entitled to additional “due process“ and have the right to challenge their deportation to a third country rather than the country in which they are a citizen.  However, this third judge does not set a specific deadline, instead relying on the litigants to argue over “due process" they are entitled to in each of their cases, stating the amount of "due process" which each is entitled-to depends on the practicalities of their bringing a challenge to third-party deportation while in custody. 

The question becomes which ruling, meaning which "universal" or "nationwide" injunction, or, for that matter, which ruling against such an injunction, constitutes precedence as to other persons who are not named in the suit are similarly situated.  We assume, of course, that the orders granting the injunction are written broadly to cover all persons.  To make this a bit more interesting, we will suppose that each injunction is issued in a different District Court in a different Judicial Circuit, and that each of these Circuit Courts has refused requests to issue a stay of these trial court orders. We will also assume the Supreme Court has not yet weighed in on the issue of whether there is to be additional due process where there is to be removal to a third-party country.

The question, then, is:  which injunction ruling will prevail in other parts of the United States? 
 
The answer, at least according to leading law firms , is the government must abide by each injunction issued, even if not fully  harmonious or in outright conflict
 
Our hypothetical is of course, similar to other recent injunction issued by Federal "trial court" Judges who have exercised virtually unlimited jurisdiction and attempted to control the execution of public policy by the executive branch, such as the direction of planes, the whereabouts of foreign citizens held in foreign jails, etc.  Given that so many injunctions have been sought and granted, with counsel often from leading law firms, the  question is which universal injunction should prevail when they are, to say the least, not entirely in sync. 
 
The answer, of course, coming from the positions taken by many of the leading law firms in America, is that all of them prevail. This is because these law firms have argued for such broad jurisdiction that there is little, if any limit, on what an individual trial court judge may do.  These suits seeking universal injunctions are usually brought in “equity” and, as these major law firms have argued, the jurisdiction of federal trial courts extends far beyond the litigants before them.
 

 

 

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United States v. Skrmetti: Justice Thomas' concurring opinion upholding the right of state legislatures to bar treatment deemed harmful to minors

 

Six of the nine Supreme Court justices reject challenge to Tennessee law designed to "protect" minors

The United States Supreme Court has upheld the right of state legislatures to bar medical procedures used by minors, even where the minor's parents and some medical professionals believe these procedures are beneficial, based on the decision by the people's representatives that these procedures are harmful to minors. (United States v. Skfmatti (June 18, 2025) no. 23–477) found at https://www.supremecourt.gov/opinions/24pdf/23-477_2cp3.pdf.  This issue arose when the Tennessee legislature passed a ban on a host of such treatments, including puberty-blocking drugs that altered the biological course of the affected minors, treatment rarely described in detail in the corporate media but simply herded under the banner "gender-affirming care."
 
The Sixth Circuit had found the statute constitutional and teh Supreme Court, by a vote of six to three and via an opinion written by Chief Justice Roberts, found the law at issue did not violate the Equal Protection clause of the 14th Amendment to the United States Constitution.  The majority found that such a law did not require the sort of strict scrutiny analysis which is often, but not always, applied to laws that are said to discriminate against persons on the basis of race and sex.  Such a strict scrutiny analysis is crucial because governmental distinctions between citizens that are subject to this standard are "inherently suspect."
 
Rather, the Tennessee law merely had to meet the rational basis test to pass equal protection muster, meaning the statute was constitutional as long as the legislature had a rational, even if arguably incorrect, basis for enacting the law.
 
Justice Thomas' concurs and notes that regulation of medical procedures routinely and properly distinguishes between the sexes
 
Justice Thomas aptly pointed out that the Fourteenth Amendment uses much different language from that of anti-discrimination laws such as Title VI, this amendment stating simply, "no  State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Justice Thomas further explained that courts have held that discrimination based upon "sexual orientation" is not equivalent to that based upon "sex" itself.  However, even if one were to accept such analysis, this would not apply in the context of equal protection analysis given that, as noted above, the language in anti-discrimination statutes is different from that in the 14th Amendment.
 
Justice Thomas thus wrote that a finding that medical laws that supposedly "discriminate" against treatment for transgender minors is subject to "strict scrutiny" because such constitutes discrimination based upon "sex," would call into question much of our regulation of medical procedures, which does in fact distinguish among biological sexess:

Applying. . . such reasoning to the Equal Protection Clause would also invite sweeping consequences. Many statutes “regulate medical procedures defined by sex.” L. W. v. Skrmetti, 83 F. 4th 460, 482 (CA6 2023) (collecting examples, including laws referencing testicular and prostate cancer). If heightened scrutiny applied to such laws, then “[a]ny person with standing to challenge” such a decision could “haul the State into federal court and compel it to establish by evidence (presumably in the form of expert testimony) that there is an ‘exceedingly persuasive justification’ for the classification.” United States v. Virginia, 518 U. S. 515, 597 (1996) (Scalia, J., dissenting). Given the ensuing potential for “high-cost, high-risk lawsuit[s],” ibid., States might simply decline to adopt or enforce sex-based medical laws or regulations, even where such rules would be best medical practice. The burden of skeptical judicial review is therefore far from the “modest step” of requiring a State to “show its work” that the dissent posits. Post, at 31 (opinion of SOTOMAYOR, J.). (Skrmetti, J. Thomas concurring opinion, pp. 4-5; footnote omitted.)

 

In summary, the state law at issue more than survives the "rational basis" test, according to Justice Thomas.  Echoing the majority opinion, Thomas wrote that not only is there no clear medical consensus on "gender-affirming treatment" for minors, but he went into detail regarding what this "medical treatment" entails, noting that it includes the excision of the breasts of minors too young to legally consent to such a procedure.

 

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