Miss USA Has First Amendment Right to Exclude Transgender Women, Court Says

Female beauty pageants are allowed to exclude transgender women, the US Court of Appeals for the 9th Circuit has ruled. The case stems from a complaint filed by Anita Green, a transgender contestant in several Miss United States of America pageants.

After competing in Miss USA pageants in Montana, Oregon, and Nevada, Green asked the pageant’s national director if she knew Green was transgender. The director said she had not known, and that Green would be excluded from further competition, since the pageant is only open to “natural born female(s).”

Green sued, a district court ruled in favor of the pageant, and Green appealed. Now, a panel of 9th Circuit judges has also ruled in favor of Miss USA. In a November 2 decision, the judges held that pageant rules did not violate the Oregon Public Accommodations Act (OPAA) and that its decision to exclude transgender women was protected by the First Amendment.

The First Amendment protects theater, and a pageant is a type of theater, the court said. Specifically, it’s a kind of theater meant to showcase an “ideal vision of American womanhood.”

The “natural born female” requirement is just one of many exclusionary requirements for pageant entry, the court points out:

The Miss division, which Green applied to, requires among other things that contestants be “between .” 1828 years of age,” have “never posed nude in film or print media,” and not be married or have given birth. Finally, and most relevant to our case, contestants must also be “a natural born female.

The Page enforces these requirements. For example, ono applicant was
rejected for having posed nude. Alater was rejected for including “photographs and language which were inconsistent with USOA Pageants’ message.” The Pageant explained that those photographs and language were “inconsistent with [the
Pageant’s] vision and message we wish to associate with and does not coincide with
United States of America Pageants’ efforts to produce community role models.”

Mandating Miss USA allow Green to be in the pageant would amount to forcing the pageant to say that transgender women are included in a vision of ideal American womanhood and that would amount to compelled speech, the court held. Give a pageants competitive and performative structure, it is clear that who competes and succeeds in a pageant is how the pageant speaks,” wrote the judges.put differently, the Pageant’s message cannot be divorced from the Pageant’s selection and evaluation of contestants.”

I don’t think the court is wrong about what allowing transgender contestants implies, though it is a shame Miss USA doesn’t broaden its horizons a bit. Being more inclusive seems like not only the right thing to do but also a way it could shed some of its old-fashioned, intolerant image and help with its lack of resonance with today’s audiences.

That said, perhaps what remains of the dwindling pageant audience would disapprove of Green’s inclusion and Miss USA is just playing to its core audience. Or perhaps the pageants’ leaders just deeply believe that transgender women should not be included. In any event, this is certainly not the first time beauty pageants have failed to be inclusive. Perhaps beauty pageants further fading into irrelevancy is not at all a bad thing.

But whatever you think about beauty pageants or their rules, they still have First Amendment rights, including freedom of expression and freedom of association. The district court rejected Miss USA’s freedom of speech defense but said it was allowed to reject Green on freedom of association grounds. The 9th Circuit held that the freedom of speech claim worked, too (and thus it needn’t even get into the freedom of association claim): Forcing the Pageant to accept Green as a participant would fundamentally
alter the Pageant’s expressive message in direct violation of the First Amendment,” it held.


FREE MINDS

The problem with “pro-democracy” rhetoric. Josh Barro has a good rant about the Democrats’ “pro-democracy” messaging:

When Democrats talk about “democracy,” they’re talking about the importance of institutions that ensure the voters get a say among multiple choices and the one they most prefer gets to rule. But they are also saying voters do not get to do that in this election. The message is that there is only one party contesting this election that is committed to democracy — the Democrats — and therefore only one real choice available. If voters reject Democrats’ agenda or their record on issues including inflation, crime, and immigration (or abortion, for that matter), they have no recourse at the ballot box — they simply must vote for Democrats anyway, at least until such time as the Republican Party is run by the likes of Liz Cheney and Adam Kinzinger.

This amounts to telling voters that they have already lost their democracy.

More here. See also: Turning ‘Saving Democracy’ Into a Campaign Slogan Isn’t Helping Save Democracy


FREE MARKETS

A weird thing to brag about. In a now-deleted tweet, the White House boasted that “seniors are getting the biggest increase in their Social Security checks in 10 years through President Biden’s leadership.” But as many folks quickly pointed out, the Social Security increases is tied to cost of living. The reason this year’s increase is so big is because inflation is so high. And that’s probably not something the Biden administration wants to take credit for (although…).


QUICK HITS

• So, where was all that rainbow fentanyl on Halloween?

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