ABOVE: Anita Green. Photo via Green’s Instagram.
PORTLAND, Or. | A three-judge panel of the 9th U.S. Circuit Court of Appeals in a 2-1 decision ruled last week that a beauty pageant can bar transgender women competitors.
Upholding an earlier ruling from the U. S. District Court of Oregon in the case of Green v. Miss United States of America, LLC, the court found that that requiring the pageant to be inclusive of trans contestants would be a violation of its First Amendment rights to free speech.
Anita Green, a trans woman, who has competed in multiple beauty pageants including Miss Montana and Miss Earth, filed an application to participate in the Miss USA pageant, but was rejected on the basis that the pageant’s rules specified that only “natural born females” can compete.
Green had applied in Oregon and filed the federal suit based on her allegation that the pageant’s rejection was a violation of the Oregon Public Accommodations Act’s (“OPAA”) prohibition against discrimination on the basis of gender identity. In its ruling the U. S. District Court found the pageant’s First Amendment right to free expression and free association eclipsed the OPAA.
In the 58-page opinion, 9th U.S. Circuit Judge Lawrence VanDyke, appointed to the federal bench by former President Trump, compared and contrasted the pageant’s requirement to that of Broadway composer and producer Lin-Manuel Miranda required protocols in casting his musical “Hamilton.”
“The musical utilizes hip-hop music and lyrics to detail the rise and fall of Founding Father Alexander Hamilton and has garnered widespread attention from the public and critics alike,” VanDyke wrote and also attributed “some of the musical’s popularity” to “its casting choices, namely the decision to cast the predominately white Founding Fathers with actors of color.”
VanDyke noted that creator Miranda’s casting decision “was widely—though not universally—applauded,” and included a footnote quoting an op-ed written by a University of Michigan student that questioned the messaging behind the choice of actors. Blogger Camille Moore wrote that despite Miranda’s aim to cast the Pulitzer Prize-winning show to reflect “America today,” the casting missed the mark in that in that it failed to acknowledge that even today, powerful figures would be rich, white men.
The judge continued, explaining that Hamilton’s mainly non-white cast makes an important statement about American history that is “integral” to the show’s message.
The ruling also noted “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 judges 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 judge’ also pointed out that contrary to Green’s argument, it does not matter that the Pageant is a for-profit entity that engages in commerce. That alone is not enough to strip the Pageant of its First Amendment rights.
The ruling also noted that the application of the OPAA in this context lacks the compelling state interest. The State of Oregon has offered only “eliminating discrimination against LGBTQ individuals” as a compelling interest, but this broad formulation alone cannot suffice. The courts have a long-standing hesitation to enforce anti-discrimination statutes in the speech context. Application of the anti-discrimination law to the Pageant here would necessarily impact its message. Applying the proper Supreme Court guidance in this case required prohibiting the application of the OPAA to eliminate the Pageant’s “natural born female” rule.
Writing in dissent, 9th Circuit Judge Susan P. Graber, appointed to the Federal bench by former President Bill Clinton slammed the majority for its “radical departure” from “well-settled” legal rules.
Law & Crime reported:
Under the doctrine of “constitutional avoidance,” Garber explained that the court should have first determined whether OPAA even applied to Green’s claim before diving into First Amendment analysis. Graber reprimanded the majority for its “insistence in reaching an unnecessary constitutional issue,” and reminded her fellow judges that constitutional avoidance is, and has long been, a bedrock judicial principle.
Graber then used VanDyke’s proffered examples in a logical assault on the majority’s ruling: given the nature of performances, a solid argument could be made that OPAA does not even apply to beauty pageants. Therefore, VanDyke’s Hamilton analogy does more to undermine the majority’s ruling than to support it.
Graber wrote:
“Choosing actors for a production of Hamilton, making a sequel to an 80s cinema classic, and assembling a troupe of Beyonce’s backup dancers are intensely selective processes that cannot be said to be open to the public as contemplated by the OPAA. It is highly unlikely that the OPAA would apply to the selection of performers for those roles.”
