First Amendment

Beauty pageant had First Amendment right to reject transgender contestant, 9th Circuit rules

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A beauty pageant had a First Amendment right to reject a transgender contestant who contended that its “natural born female” eligibility requirement violated Oregon anti-bias law, a federal appeals court has ruled.

The Miss United States of America pageant could reject transgender contestant Anita Noelle Green because of the First Amendment’s protection against compelled speech, according to the Nov. 2 opinion by the 9th U.S. Circuit Court of Appeals at San Francisco.

The appeals court cited Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, a 1995 U.S. Supreme Court decision that said sponsors of a St. Patrick’s Day parade had a First Amendment right to exclude an Irish LGBTQ group.

Free speech protections extend to theatrical productions, and “beauty pageants fall comfortably within this ambit,” the 9th Circuit said in an opinion by Judge Lawrence VanDyke, an appointee of former President Donald Trump.

While the message expressed by beauty pageants can vary, “it is commonly understood that beauty pageants are generally designed to express the ‘ideal vision of American womanhood,’” wrote VanDyke, quoting from a book about pageants.

“Equally important to this case is understanding the method by which the pageant expresses its view of womanhood. Given a pageant’s competitive and performative structure, it is clear that who competes and succeeds in a pageant is how the pageant speaks. Put differently, the pageant’s message cannot be divorced from the pageant’s selection and evaluation of contestants.”

As an example, VanDyke cited the play Hamilton, which cast actors of color to play white founding fathers. It is “widely recognized that this choice was central to the message of the musical itself,” VanDyke wrote.

The Miss United States of America pageant was represented by Alliance Defending Freedom, a conservative Christian legal advocacy group, according to a Nov. 2 press release.

The case is Green v. Miss United States of America.

Hat tip to How Appealing, which linked to the opinion, and Reuters, which had coverage.

See also: “Afternoon Briefs: Judges tosses transgender woman’s pageant bias suit; SCOTUS allows indoor church services”

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