A federal appeals court has said national pageants have a First Amendment right to exclude a trans woman from competing because including her could interfere with the pageant’s message about the “ideal woman.”
Wednesday’s ruling by the U.S. Court of Appeals for the 9th Circuit was in response to a lawsuit filed by Anita Green, who said the Miss United States pageant violated Oregon’s anti-discrimination laws by barring her from the 2019 contest.
Green, who is transgender, has competed in several beauty pageants, including Miss Montana USA and Miss Universe. She lives in Clackamas, Ore., and was preparing to compete in the Miss United States Oregon pageant when she said the organization rejected her application because it didn’t think she was “a natural woman.”
Green sued, alleging the group violated a state law that makes it illegal to deny public amenities to people based on their gender or gender identity.
But lawyers for the Miss United States of America pageant said the pageant was designed to celebrate and promote “born women” by delivering a message of “biological female empowerment.” Beauty pageants have several requirements for entrants, including some based on the entrant’s age, marital status and gender identity.
A three-judge panel on the Ninth Circuit voted 2-1 in favor of the pageant, saying forcing the pageant to include a trans woman would fundamentally change the message the pageant was trying to convey.
“Like a theater, movie theater or Super Bowl halftime show, beauty pageants combine speeches with live performances such as music and dance to convey a message,” Judge Lawrence Van Dyke wrote for the majority. “While the content of this message varies from pageant to pageant, it is generally accepted that pageants are generally designed to express ‘the ideal vision of women in America.'”
The appeals court agreed with the lower court’s ruling that people watching the pageant’s decision to exclude trans women may understand that pageant organizers don’t believe trans women are eligible to be women.
“The First Amendment gives pageants the ability to express this message and enforce its ‘born female’ rule,” the appeals court found.
The panel found that forcing a pageant to include transgender contestants would constitute “forced speech” — a violation of the First Amendment — and the fact that the pageant is a business that conducts business activities is not enough to overcome the right to free speech.
In a dissenting opinion, Judge Susan P. Graber said the majority skipped an important step in deciding whether to apply the First Amendment. Graber said the court should first consider whether Oregon law applies in the case, which could settle the lawsuit before the judge even has to consider First Amendment issues.
John Kaempf, an attorney representing the pageant and its owner, Tanice Smith, said the 9th Circuit’s dismissal was a “simple fairness” issue.
“The Ninth Circuit’s conclusion says it all:” Greene asked to use state power to compel Miss United States of America to express the opposite of what she wanted. The First Amendment says no,” Kaempf said.
Green referred The Associated Press to her attorney, Shenoah Payne, who did not immediately respond to a request for comment.
Green said she was disappointed after a lower court ruling last year in favor of pageants, but the case raised awareness of transgender discrimination in pageants.
“I believe Miss United States of America is on the wrong side of history by choosing to actively discriminate against trans people, but the road to creating meaningful change has been long and bumpy,” Green said at the time. “A trans woman is a woman. My message has always been the same, my message is: There is beauty in everyone.”