The Ninth Circuit Court of Appeals has ruled in favor of the Miss United States of America pageant, protecting women in pageant competitions. A male, who identifies as Anita Green, sued the organization in 2019 when his application to compete was denied based on gender identity.
According to the suit, filed in Oregon, the plaintiff alleged that the pageant committed “an intentional act of discrimination by adopting an express discriminatory policy” and that the pageant’s eligibility requirement of being a “natural born female” is a violation of the Oregon Public Accommodations Act.
According to The New York Post, “Green began messaging Miss United States of America’s national director on Facebook about the company’s Oregon pageant. That director, Tanice Smith, sent Green the pageant’s rules. Among them was that contestants must be ‘natural born female.’ ‘You know I’m transgender, right,’ Green wrote in a message to Smith, according to the court. ‘Your rules seem to discriminate against transgender women.’ According to the court, Smith offered to help Green find another pageant to compete in. But Green responded, ‘I’ll talk to my attorney about this then because discrimination is unacceptable.’”
The case was dismissed by a federal judge last year, citing free speech rights.
The case was appealed in March of 2022.
The Ninth Circuit agreed with the federal ruling citing that the forced participation of men infringes on the pageant’s right and ability to express “the ideal vision of American womanhood” and allowing males in its all-female production would violate the First Amendment by changing the pageant’s message that celebrates women consistent with the pageant’s views on womanhood.
The panel affirmed the district court’s summary judgment in favor of Miss United States of America, LLC, in an action brought by Anita Green, who self-identifies as an openly transgender female, alleging that the Miss United States of America pageant’s “natural born female” eligibility requirement violated the Oregon Public Accommodations Act (“OPAA”).
The district court held that the First Amendment protected the Pageant’s expressive association rights to exclude a person who would impact the group’s ability to express its views. The panel agreed that summary judgment for the Pageant was correct, but reached this conclusion not under the First Amendment’s protection of freedom of association but rather under the First Amendment’s protection against compelled speech.
The panel held that the First Amendment, which ensures that “Congress shall make no law . . . abridging the freedom of speech,” extends its protections to theatrical productions. Beauty pageants fall comfortably within this ambit. The panel noted that it is commonly understood that beauty pageants are generally designed to express the “ideal vision of American womanhood.” The panel held that the Pageant’s message cannot be divorced from the Pageant’s selection and evaluation of contestants. The Pageant would not be able to communicate “the celebration of biological women” if it were forced to allow Green to participate. The First Amendment affords the Pageant the ability to voice this message and to enforce its “natural born female” rule. The panel concluded that forcing the Pageant to accept Green as a participant would fundamentally alter the Pageant’s expressive message in direct violation of the First Amendment.
The panel rejected the arguments of Green and amici that there would be no First Amendment violation if Green was allowed to participate.
The Ninth Circuit wrote, “Miss United States of America expresses its message in part through whom it chooses as its contestants, and the First Amendment affords it the right to do so. Given a pageant’s competitive and performative structure, it is clear that who competes and succeeds in a pageant is how the pageant speaks.”
“As with theater [and] cinema, … beauty pageants combine speech with live performances such as music and dancing to express a message.” The court further explained that “allowing for the inclusion of even a single non-biological female as a ‘woman’ would certainly be an expressive decision revising the Pageant’s definition” of what it means to be a woman.”
The appeals court also wrote, “Miss United States of America’s stated message is to ‘encourage women to strive to ACHIEVE their hopes, dreams, goals, and aspirations,’ and to ‘EMPOWER Women, INSPIRE others, & UPLIFT everyone!’ There is also an important communal element to Miss United States of America, as the network of current and former contestants forms ‘an elite sisterhood that gives support and encouragement to inspire each delegate to be the best version of herself!’ Miss United States of America determined, as did every other pageant mentioned above, that including and excluding certain people was the best means necessary to express and achieve this message. The Pageant would not be able to communicate ‘the celebration of biological women’ if it were forced to allow Green to participate. As the district court explained, the Pageant’s decision to limit contestants to ‘natural born female[s]’ undoubtedly conveys that message, because: Someone viewing the decision to exclude transgender women (and cisgender males) from a beauty pageant would likely understand that the pageant organizers wished to convey some message about the meaning of gender and femininity, and would probably also grasp the specific implication that the pageant organizers did not believe transgender women qualified as female.”
“Green seeks to use the power of the state to force Miss United States of America to express a message contrary to what it desires to express. The First Amendment says no,” the court wrote.