The Ninth Circuit Court of Appeals ruled that a female-only beauty pageant organization is protected under its First Amendment rights and cannot be forced to include biological male contestants.
In Green v. Miss United States of America, a male, who identifies as Anita Green, sued the pageant in 2019 when his application into the pageant was denied based on gender identity. Green’s lawsuit, which was filed in Oregon, said the pageant “committed an intentional act of discrimination by adopting an express discriminatory policy” and that the pageant’s “natural born female” eligibility requirement violates the Oregon Public Accommodations Act.
A federal judge had dismissed the case last year, citing the pageant’s decision fell within its free speech rights. However, this week the Ninth Circuit agreed, ruling 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 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.
Liberty Counsel Founder and Chairman Mat Staver said, “We commend the Ninth Circuit Court of Appeals for this decision that protects the First Amendment rights as well as privacy and safety for women. After females have worked so hard to compete in pageants for many years, no male has a right to intrude into their competition as well as their dressing rooms by pretending he can identify as a woman.”