This undated photo provided by Michelle Stevens shows Anita Green, a transgender woman who sued the Miss United States of America pageant after she said the organization denied her entry into the Oregon pageant because she is transgender. The 9th US Circuit ruled on Wednesday, November 2, 2022, that forcing the pageant to include transgender contestants would unlawfully infringe on the organization’s free speech right to express what it believes to be the ideal vision of women’s lives. A federal appeals court says a national beauty pageant has a First Amendment right to exclude a transgender woman from the competition because her inclusion could interfere with the pageant’s message of the “ideal woman.” Wednesday’s ruling by the 9th U.S. Circuit Court of Appeals came in response to a lawsuit filed by Anita Green, who said the Miss United States pageant violated an Oregon state anti-discrimination law when it barred her from competing in 2019. Green, who is transgender, has competed in numerous pageants, including Miss Montana USA, Miss Earth and Ms. World Universal. She was living in Clackamas, Oregon, and was preparing to compete in the Miss Oregon pageant when she said the organization rejected her application because she was not considered a “natural born woman.” Green sued, claiming the agency was violating a state law that makes it illegal to deny public accommodations to people based on their gender or gender identity. But lawyers for the Miss United States of America pageants said the pageant program was designed to celebrate and promote “natural women,” sending a message of “biological female empowerment.” The pageant has many requirements for contestants, including some based on contestants’ age, marital status, and gender identity. The 9th Circuit’s three-judge panel voted 2-1 in favor of holding the pageant, saying that forcing the pageant to include a transgender woman would fundamentally change the message the pageant was trying to send. “As with theater, film, or the Super Bowl halftime show, pageants combine speech with live performances such as music and dance to convey a message,” wrote Justice Lawrence VanDyke for the majority. “And while the content of this message varies from pageant to pageant, it is commonly understood that pageants are generally designed to express the ‘ideal vision of American womanhood.’ The appeals court agreed with a lower court’s finding that someone watching the pageant’s decision to exclude transgender women would likely have understood that pageant organizers did not believe transgender women qualified as women. “The First Amendment gives Pageant the ability to express that message and enforce the ‘natural born female’ rule,” the appeals court found. Forcing the pageant to include a transgender contestant would amount to “compelled speech,”—a violation of the First Amendment—and the fact that the pageant was a business engaged in commerce was not enough to defeat that free speech right. the committee found. In a dissenting opinion, Justice Susan P. Graber said the majority skipped important steps when deciding whether the First Amendment applied. The court would first have to consider whether Oregon state law applied to the case, which could have resolved the lawsuit before the justices even had to consider the First Amendment question, Graber said. John Kaempf, the attorney representing the 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 is asking to use state power to compel Miss United States of America to express a message contrary to what she wants to express. The First Amendment says no,” Kaempf said. Green referred The Associated Press to her attorney, Shenoa Payne, who did not immediately respond to a request for comment. After a lower court ruled in favor of the pageant last year, Green said she was disappointed but that the case raised awareness of discrimination against transgender people on the pageant circuit. “I believe Miss USA is on the wrong side of history for choosing to actively discriminate against transgender people, but the road to creating meaningful change has always been long and bumpy,” Green said at the time. “Trans women are women. My message has always been consistent and my message is this: every person has beauty.”
