On Wednesday, Nov. 2, 2022, the 9th U.S. Circuit held that compelling the Pageant to accept transgender candidates would violate the group’s free speech right to articulate what it views as an ideal conception of womanhood. A national beauty pageant has the right, under the First Amendment, to forbid a transgender woman from competing because doing so might interfere with the message the Pageant wishes to convey about “what this means to be a woman,” according to a federal appellate court’s decision on Wednesday.
Anita Green filed a lawsuit, claiming that Miss USA banned her from competing in 2019 in violation of the state anti-discrimination statute. She was successful, according to the 9th U.S. Circuit Court of Appeals.
Green, a transgender competitor, has competed in Miss Earth, Miss America, and Ms. World Universal. As she prepared to participate in the Miss United States of America’s Miss Oregon pageant while living in Clackamas, Oregon, she claimed that the organization disqualified her application because it did not consider her a “natural born girl.”
Green filed a lawsuit, claiming the company violated a state statute that forbids discrimination against individuals based on their gender identity or sex.
However, lawyers representing the Miss USA Pageants said that the pageant program was created to recognize and promote “natural born women” by disseminating a message of “female biological empowerment.” The Pageant has several eligibility rules, some of which are based on age, marital status, and gender identity.
The pageant organization won a 2-1 majority on the three-judge panel of the 9th Circuit, which ruled that compelling the contest to include a transgender woman would fundamentally change the message the Pageant was trying to convey.
Judge Lawrence VanDyke stated for the majority, “Beauty pageants mix speech with live performances like music and dancing to transmit a message, just as with theatre, cinema, or the Super Bowl halftime show.” It is widely acknowledged that beauty pageants are often created to represent the “ideal vision of American womanhood,” even though the specifics of that message vary from Pageant to pageant.
The appellate court confirmed with a lower court’s conclusion that anyone who witnessed the pageant organizers’ choice to exclude transgender women would probably conclude that they did not consider transgender people feminine.
The appellate court concluded that the Pageant has the right to enforce its “natural born female” requirement and to express this message under the First Amendment.
The panel determined that the Pageant’s status as a commercial enterprise was insufficient to nullify its right to free expression. Transgender candidates being forced into the Pageant would be considered “compelled expression,” which is against the First Amendment.
Judge Susan P. Graber stated in a dissenting opinion that the majority omitted crucial procedures when determining whether the First Amendment applied. Graber argued that before even considering the First Amendment issue, the court had to review whether Oregon state law applied to the situation, which may have ended the litigation.
The rejection by the 9th Circuit was a matter of “basic justice,” according to John Kaempf, the attorney for Tanice Smith, the owner of the pageant organization and organization.
The United States Court of Appeals for the Ninth Circuit is a federal court of appeals that has appellate jurisdiction over the federal district courts in the following jurisdictions:
- District of Alaska
- District of Arizona
- Central District of California
- Eastern District of California
- Northern District of California
- Southern District of California
- District of Hawaii
- District of Idaho
- District of Montana
- District of Nevada
- District of Oregon
- Eastern District of Washington
- Western District of Washington
Additionally, it has appellate authority over the subsequent territorial courts:
- District of the Northern Mariana Islands
- District of Guam
Furthermore, it occasionally hears appeals from American Samoa, a territory without a district court that partly depends on the District of Hawaii for its federal proceedings.
The Ninth Circuit’s ruling sums it up perfectly: “Green asks to use state power to compel Miss USA to convey a message that is at odds with what it wants. No, according to the First Amendment,” Kaempf stated.
The media directed to Green’s attorney Shenoa Payne, but she did not immediately respond to a request for comment.
Green expressed her disappointment following a lower court decision that supported the Pageant last year but added that the lawsuit raised awareness of prejudice against transgender persons in the pageant circuit.
According to Green, it has always been challenging and protracted to bring about significant change. Because she made the conscious decision to discriminate against transgender individuals, she felt that the United States of America Miss was on the wrong side of history.
“Transgender females are females. Every person has beauty, and that has been my unwavering message throughout the years.