A federal appeals court has ruled that a national beauty pageant has a First Amendment right to exclude a transgender woman from competing, because her inclusion could interfere with the pageant’s intended message about the “ideal woman.”
The 9th US Circuit Court of Appeals’ ruling on Wednesday was in response to a lawsuit filed by Anita Green, who said the Miss United States of America pageant violated Oregon’s anti-discrimination law when it barred her from competing in 2019.
Green, who is transgender, has competed in several pageants including Miss Montana USA and Miss Universe. She lives in Clackamas, Oregon, and was preparing to compete in the Miss Oregon Miss United States of America pageant when she said the organization rejected her application because they did not consider her a “natural born woman.”
Green sued, contending the organization is violating a state law that makes it illegal to deny public accommodations to people based on their sex or gender identity.
But lawyers for the Miss United States of America Pageants say the pageant program is designed to celebrate and promote “naturally born women,” by sending a message of “biological female empowerment.” The pageant has several requirements for contestants, including some based on the contestants’ age, marital status and gender identity.
A three-judge panel of the 9th Circuit voted 2-1 in favor of the pageant organization, saying that forcing the pageant to include transgender women would fundamentally change the message the pageant was trying to send.
“Like theater, cinema, or the Super Bowl halftime show, beauty pageants combine speech and live performances such as music and dance to convey a message,” Judge Lawrence VanDyke wrote for the majority. “And while the content of that message varies from pageant to pageant, it is generally understood that beauty pageants are generally designed to express ‘the ideal vision of the American woman.'”
The appeals court agreed with the lower court’s finding that people looking at the pageant’s decision to exclude transgender women would likely have understood that pageant organizers did not believe that transgender women qualified as women.
“The First Amendment affords Pageant the ability to voice this message, and to enforce its “naturally born woman” rules,” the appeals court found.
Forcing a pageant to include transgender contestants would be “compelled speech,” — a violation of the First Amendment — and the fact that the pageant is a business engaged in commerce is not enough to overcome that free speech right, the panel found. .
In the dissenting opinion, Judge Susan P. Graber, said the majority skipped an important step when deciding whether the first amendment applies. The court must first consider whether Oregon state law applies to the case, which might settle the lawsuit before the judge has to consider the First Amendment question, Graber said.
John Kaempf, an attorney representing the pageant organization and its owner, Tanice Smith, said the 9th Circuit’s dismissal was a matter of “simple justice.”
“The Ninth Circuit’s conclusion says it all: “Green asked for the use of state power to force Miss United States of America to express a message contrary to what she wanted to express. The First Amendment says no,” Kaempf said.
Green referred The Associated Press to his attorney, Shenoa Payne, who did not immediately respond to a request for comment.
After the lower court decision sided with the pageant last year, Green said he was disappointed but the case brought awareness about discrimination against transgender people in the pageant circuit.
“I believe that Miss United States of America is on the wrong side of history for choosing to actively discriminate against transgender people, but the road to making meaningful changes has always been long and bumpy,” Green said at the time. “Transgender women are women. My message has always been consistent and my message is this: everyone has beauty.