Split federal appeals court upholds pageant’s right to exclude transgender woman as contestant

A divided federal appeals panel Wednesday affirmed the dismissal of a lawsuit by a transgender woman who accused the Miss United States of America pageant of discrimination for denying her the right to participate in its competitions.

The pageant has the right to enforce its “natural born female” rule for contestants, ruled two judges of a three-judge panel of the 9th U.S. Circuit Court of Appeals.

To force the pageant to include Anita Noelle Green, the transgender woman from Clackamas, as a contestant, would constitute “compelled speech” that violates the First Amendment, the majority ruled.

Green had appealed the dismissal of her suit last year by Oregon’s U.S. District Judge Michael W. Mosman. Mosman threw out the suit, finding that the First Amendment protected the pageant’s rights to exclude a person who would impact the group’s ability to express its views.

Green had applied to participate in the Miss United States of America national pageant in 2019 but was rejected.

Green argued that her inclusion would not significantly burden the pageant’s ability to advocate for its viewpoints, and that the private pageant corporation had never expressed any view about including biological males who identify as women.

But two of three judges on the panel of the 9th U.S. Circuit Court of Appeals disagreed.

“In short, 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,” Circuit Judge Lawrence VanDyke wrote in the majority opinion.

The Nevada-based Miss United States of America corporation operates beauty pageants across the country and a national pageant, and requires that contestants be a “natural born female.”

As with theater, cinema or the Super Bowl halftime show, beauty pageants combine speech with live performances to express a message, VanDyke wrote in his opinion.

“And while the content of that message varies from pageant to pageant, it is commonly understood that pageants are generally designed to express the ‘ideal vision of American womanhood,’ ‘’ he wrote, citing author Margot Mifflin’s book called “Looking for Miss America: A Pageant’s 100-Year Quest to Define Womanhood.”

The pageant’s message can’t be divorced from its selection and evaluation of contestants, the ruling said.

Attorneys for the pageant argued persuasively, according to VanDyke, that Broadway’s smash-hit Hamilton, which casts the nation’s Founding Fathers with actors of color was an expressive decision central to the message of the musical. Had an anti-discrimination suit challenged the casting of the musical production and forced it to include white actors, that would violate the fundamental First Amendment rule that a speaker has the right to choose the content of their own message, VanDyke wrote in the opinion.

The Miss United States of America pageant is not unlike other pageants, such as the Miss Asian American that limits contestants to those who have at least one-fourth Asian ancestry; the Christian Miss pageant that limits contestants to only those who affirm certain Christian doctrines, or the “Miss International Queen,” that limits contestants to those who identify as transgender, the opinion said.

Further, the majority found that the fact that the pageant is a for-profit corporation that generates revenue from advertising, fees and other activities is not enough to strip it of its FIrst Amendment rights.

VanDyke found parallels between Green’s case and the U.S. Supreme Court 1995 decision that found that the organizers of a St. Patrick’s Day parade in Boston had the constitutional right to exclude an Irish-American gay, lesbian and bisexual group from marching in the parade with its own banner. The high court found the private parade organizers had the right to “determine what the message their activities convey to the public.”

The Supreme Court ruled that Massachusetts’ public accommodation anti-discrimination law posed a First Amendment problem, in that it violated the sponsors’ right “to choose the content” of its own message.

Here, Oregon’s public accommodation law would force the pageant to include Green and alter its speech, VanDyke wrote.

Green and her supporters argued that the state’s reason for passing the accommodation law was to remedy discrimination that harms transgender people.

But the U.S. Supreme Court, VanDyke wrote, directed lower courts to “prevent the government from requiring [private organizations’] speech to serve as a public accommodation for others.’’

“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,” he wrote.

In a lengthy dissent, Circuit Judge Susan P. Graber argued that the majority opinion was inconsistent, in that it held that the Oregon Public Accommodation Act applied to the pageant, yet also found that the pageant is so selective that it doesn’t offer a service to members of the public.

Graber wrote that she would have sent the case back to the district court to determine whether or not the state public accommodation law applies to the pageant corporation before having the appellate court address any constitutional concerns regarding the state law’s relevance in this case.

If it was determined that it did apply, Graber wrote, then based on the record before the court, she’d rule in Green’s favor.

“The state has a compelling interest in preventing discrimination on the part of commercial entities that offer their services to the public,” Graber wrote.

VanDyke, responding to Graber’s dissent, said she was proposing ” a radical expansion of the constitutional avoidance doctrine,” that would force the pageant to continue operating under a siege of litigation, regardless of any constitutional protections.

Circuit Judge Carlos T. Bea joined with VanDyke in the majority opinion.

Attorney John Kaempf, representing the Miss United States of America Corp., applauded the ruling, calling it “common sense.”

Green’s lawyer, attorney Shenoa Payne, had argued that the pageant corporation is predominantly a commercial business that is granted “minimal protection,” as opposed to an “expressive association” protected by the First Amendment. The national pageant’s exclusion of an entire class of individuals – transgender women – “is not message-based, but status-based,” Payne said.

Payne has not said if she’ll petition for the full 9th U.S. Circuit Court of Appeals to consider her appeal.

— Maxine Bernstein

Email mbernstein@oregonian.com; 503-221-8212

Follow on Twitter @maxoregonian

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