A United States appeal court has ruled that the Miss United States of America (USOA) pageant is within its rights to exclude transgender women.
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.
The San Francisco-based 9th U.S. Circuit Court of Appeals in a 2-1 decision rejected a lawsuit by Green, claiming that Miss United States of America’s policy of only allowing “natural born” women to compete violates an Oregon anti-discrimination law.
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.
The 9th Circuit said applying the Oregon law, which prohibits discrimination based on gender identity in public accommodations, to Miss United States of America would violate the pageant’s free speech rights under the U.S. Constitution. The court agreed with the company that it expresses its views on womanhood by determining who can compete.
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.
“It is commonly understood that beauty pageants are generally designed to express the ‘ideal vision of American womanhood,'” wrote Circuit Judge Lawrence VanDyke, an appointee of former Republican President Donald Trump.
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.
