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Appeals court says Miss USA doesn’t have to allow trans contestants

Miss USA
Miss District of Columbia USA 2016 Deshauna Barber (C) is surrounded by fellow contestants after she was crowned the new Miss USA during the 2016 Miss USA pageant at T-Mobile Arena on June 5, 2016, in Las Vegas, Nevada. |

A federal appeals court panel has ruled that the Miss USA pageant is not obligated to allow men to compete in its annual contest that is explicitly reserved for women.

A three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled 2-1 on Wednesday that Miss USA, doing business as the United States of America Pageants, doesn't have to allow a man who goes by the name Anita Noelle Green of Oregon to compete in its pageant.

Circuit Judge Lawrence VanDyke wrote the majority opinion, being joined by Circuit Judge Carlos Bea, with a dissent filed by Circuit Judge Susan P. Graber.

“As with theater, cinema, or the Super Bowl halftime show, beauty pageants combine speech with live performances such as music and dancing to express a message,” VanDyke wrote. “And while the content of that message varies from pageant to pageant, it is commonly understood that beauty pageants are generally designed to express the ‘ideal vision of American womanhood.’”

VanDyke added, “the Pageant’s message cannot be divorced from the Pageant’s selection and evaluation of contestants.”

The judge drew a parallel to the hit musical “Hamilton,” which intentionally cast non-white actors to portray white historical figures, noting that the play’s message in support of diversity “could be delivered only by excluding certain people from performing.”

In her dissent, Graber argued that both the lower court and the panel's majority failed to properly apply the Oregon Public Accommodations Act to the case, which might or might not support the plaintiff's arguments.

“Choosing actors for a production of ‘Hamilton’ … [is an] intensely selective processes that cannot be said to be open to the public as contemplated by the OPAA. It is highly unlikely that the OPAA would apply to the selection of performers for those roles,” she wrote. “On the other hand, the OPAA likely would apply to the venues that sell tickets to the audiences who watch those performances.”

Graber asked if “a contestant in one of Defendant’s pageants [is] more similar to the performers or to the audience? The answer is by no means clear, and it should be determined by a fact-finder after sufficient discovery and briefing.”

“In sum, by assuming that the statute applies to Defendant — an assumption that is not definitively supported by the extant record — the majority risks issuing an unconstitutional advisory opinion and flouts a longstanding tradition of judicial restraint in the federal courts,” she added.

Christiana Kiefer of the Alliance Defending Freedom, which helped to represent USA Pageants, released a statement on Wednesday celebrating the appeals court panel decision.

“Ignoring the biological reality that men and women are different harms women and their opportunities to compete, excel, and win — from female athletes sidelined in their own sports to women competing in beauty pageants on the national stage,” stated Kiefer.

“We’re pleased the 9th Circuit recognized United States of America Pageants’ free-speech right to give women the chance to perform in beauty pageants designed to promote women.”

In February 2021, U.S. District Judge Michael W. Mosman ruled against Green, concluding that Miss USA did not have “to allow plaintiff to participate in what defendant says is a contradiction of that message.”

In response to the 2021 ruling, Green released a statement claiming that the pageant was “on the wrong side of history for choosing to actively discriminate against transgender people.”

“This case brought awareness to an issue many people were and still are unaware of and that issue is that discrimination against transgender people is still actively happening in the private and public sector even within the pageant circuit,” Green stated at the time.  

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