US appeals court ruling in Oregon case: Beauty pageant can bar trans contestants

A federal appeals court says a national beauty pageant has a First Amendment right to exclude a transgender woman from competing because her inclusion would interfere with the message it wants to send about the “ideal woman.”

Wednesday’s ruling by the 9th US Circuit Court of Appeals came in response to a lawsuit filed by Anita Greene, who said the Miss United States of America pageant violated Oregon’s state anti-discrimination law when she was barred from competing in 2019.

Green, who is transgender, has competed in several pageants including Miss Montana USA and Miss Universe. She was living in Clackamas, Oregon and preparing to compete in the Miss United States of America pageant, Miss Oregon, when the organization rejected her application because it did not consider her a “natural born female”.

Green sued, arguing the agency was violating a state law that makes it illegal to deny public accommodations to people based on their gender or gender identity.

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But lawyers for the Miss United States of America pageants said the pageant program is designed to celebrate and promote “naturally born women” by sending a message of “biological female empowerment.” The pageant has several requirements for contestants, some based on contestants’ age, marital status, and gender identity.

A three-judge panel of the 9th Circuit voted 2-1 in favor of holding the pageant, saying that forcing a transgender woman into the pageant would fundamentally change the message the pageant was trying to send.

“Like theater, cinema, or the Super Bowl halftime show, beauty pageants combine speech with live performances such as music and dance to convey a message,” Judge Lawrence VanDyke wrote in the majority. “And while the content of that message varies from pageant to pageant, beauty pageants are generally understood to be designed to express an ‘ideal vision of American womanhood.'”

The appeals court agreed with the lower court’s conclusion that anyone looking at the pageant’s decision to exclude transgender women is likely to understand that pageant organizers do not believe that transgender women qualify as female.

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“The First Amendment gives it the ability to voice this message and enforce its “natural born female” rule,” the appeals court found.

The panel found that forcing a competition to include a transgender competitor was “compelled speech” — a violation of the First Amendment — and that a business engaged in commerce was insufficient to overcome those free speech rights. .

In a dissenting opinion, Judge Susan P. Graber, however, omitted several key steps when deciding whether the First Amendment applied. Graber said the court first had to consider whether Oregon state law applied to the case, which may have resolved the lawsuit before the judge considered the First Amendment question.

John Kempf, an attorney representing the competition organization and its owner, Tanis Smith, said the 9th Circuit’s dismissal was a matter of “plain fairness.”

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“The Ninth Circuit’s conclusion says it all: “Green asks to use state power to compel Miss United States of America to express a message contrary to what she intended to express. The First Amendment says no,” Kempf said.

Greene referred The Associated Press to her attorney, Shenova Payne, who did not immediately respond to a request for comment.

After a lower court ruling last year sided with the pageant, Green said he was disappointed but said the case raised awareness of discrimination against transgender people on the pageant circuit.

“I believe the United States of America is on the wrong side of Miss history for actively choosing to discriminate against transgender people, but the road to creating meaningful change is always a long and bumpy road,” Green said at the time. “Transgender women are women. My message has always been consistent and my message is this: There is beauty in every person.

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