The Miss United States of America (USOA) pageant may continue excluding transgender contestants through the enforcement of a rule that only “natural born” women qualify to compete, a U.S. appeals court has ruled, affirming a federal judge’s decision to dismiss the case against the pageant’s operators last year.
The 9th U.S. Circuit Court of Appeals on Wednesday ruled that the USOA pageant did not discriminate against Anita Green, a transgender woman, when it rejected her application because of her gender identity.
Green has previously competed in pageants including Miss Montana, a contest within the Miss America system. She filed a complaint in federal court in 2019 against USOA operators in Oregon, where she is from, claiming that the pageant’s policy allowing only “natural women” to compete violated a state anti-discrimination law that bars discrimination based on gender identity in public accommodations.
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Green’s case against Miss United States of America, LLC, the company that runs the pageant, was thrown out last year by a district court judge in Portland who ruled that the pageant’s interest in “expressive association” under the First Amendment outweighs Oregon’s interest in preventing gender discrimination.
U.S. District Court Judge Michael J. Mosman in the ruling wrote that while the pageant operator’s free speech rights do not eclipse the application of the state’s nondiscrimination law, its freedom of association rights – allowing individuals to collectively express or promote common interests – do.
On Wednesday, a three-judge panel agreed, ruling that forcing the pageant to allow transgender women to compete would infringe on its ability to express "the ideal vision of American womanhood.”
“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, a Trump-appointee, wrote Wednesday for the majority.
“Given a pageant’s competitive and performative structure, it is clear that who competes and succeeds in a pageant is how the pageant speaks,” VanDyke wrote. “Put differently, the Pageant’s message cannot be divorced from the Pageant’s selection and evaluation of contestants.”
In a dissenting opinion, Circuit Judge Susan Graber, appointed by former President Bill Clinton, wrote that the court should have first established whether the state’s nondiscrimination law applies to the pageant operators at all.
“The majority opinion marks a radical departure from the well-settled principle that we should consider non-constitutional grounds for decision before reaching constitutional issues – the doctrine of constitutional avoidance,” Graber wrote Wednesday.
According to Graber, the state’s nondiscrimination law neither compels the pageant operator’s speech nor violates its freedom of association, meaning the case “cannot prevail on the merits of an as-applied First Amendment claim.”
“Because the majority opinion inappropriately seeks to have it both ways, and does so without first determining which option is the legally correct one, I must dissent,” she wrote.
Attorneys for Green did not immediately respond to a request for comment, but Green in a statement last year said she believes the Miss United States of America pageant is “on the wrong side of history” for choosing to discriminate against transgender people.
“Transgender women are women,” Green said at the time. “My message has always been consistent and my message is this: every person has beauty.”
