In a ruling Wednesday, the Ninth Circuit U.S. Court of Appeals said that beauty pageants have the right to limit entry to "natural born females" under the First Amendment's prohibition on "compelled speech."
"The panel held that the First Amendment, which ensures that 'Congress shall make no law . . . abridging the freedom of speech,' extends its protections to theatrical productions. Beauty pageants fall comfortably within this ambit," the 2-1 court wrote in its majority opinion. "The panel noted that it is commonly understood that beauty pageants are generally designed to express the 'ideal vision of American womanhood.' The panel held that the pageant's message cannot be divorced from the pageant's selection and evaluation of contestants."
Transgender female Anita Green sued the Miss United States of America, LLC for not allowing her into its beauty pageant because she was not a "natural born female," claiming that it violated the Oregon Public Accommodations Act.
A lower court found for the pageant, granting it a summary judgement against Green, saying it was a freedom of association issue that allowed it to prohibit transgender females from entering the contest.
While upholding the judgement for the pageant, the appeals court said the lower court erred in its basis for the judgement, and that the issue is forcing compelled speech by letting Green enter the pageant.
"The pageant would not be able to communicate 'the celebration of biological women' if it were forced to allow Green to participate," the decision said. "The First Amendment affords the Pageant the ability to voice this message and to enforce its 'natural born female' rule. The panel concluded that forcing the pageant to accept Green as a participant would fundamentally alter the pageant's expressive message in direct violation of the first amendment."
Judges Lawrence VanDyke and Carlos Bea voted in favor of the pageant, with Judge Susan Graber dissenting.
In her dissent, Graber said both the lower court and her panel neglected to rule if the OPAA applied in the case before jumping to the constitutional issues of free association and speech, which should have happened first.
"It is not clear on the present record whether the OPAA even applies to Defendant," Graber wrote in her dissent. "Without allowing discovery or briefing on that question, and without making any relevant findings, the district court assumed that the statute applies, held that the First Amendment precludes its application, and entered judgment for defendant. In doing so, the court doubly erred. If the OPAA applies, plaintiff must prevail. If the OPAA does not apply, defendant must prevail, but the constitutional argument passes out of the picture."
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