Miss USA pageant can exclude transgender contestants, appeals court rules

The Miss United States of America pageant can prevent trans women from participating in the competition, a federal court ruled this week.

The ruling by the U.S. Court of Appeals for the Ninth District came in response to a lawsuit brought by Miss Oregon-hopeful and openly transgender woman Anita Green. She sued the Miss USA organization after she was not allowed to participate in the Miss Oregon beauty pageant, even though the pageant itself asked her to take part in the contest.

She initially sued Miss USA in 2019, but the U.S. District Court for the District of Oregon dismissed the case, leading her to pursue an appeal.

Green brought the lawsuit on the grounds that the pageant’s rule to only allow “natural born female” contestants was in violation of the Oregon Public Accommodations Act (OPAA), which advocates for equal rights for every person regardless of belief, background or identity.

The OPAA states that “all Oregonians have the right to full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, disability, marital status or age (above 18).” 

Miss USA did not disagree that it must abide by OPAA, but it argued that it is within its First Amendment rights to reject a particular contestant.

The appellate court Wednesday released its 106-page opinion. It agreed with Miss USA’s lawyers that the First Amendment protected the organization’s “expressive association rights to exclude a person who would impact the group’s ability to express its views.”  

The court also said the pageant’s “natural born female” eligibility requirement is not in violation of OPAA, and that allowing Green to participate in the pageant would prevent the organization from expressing its point of view.

“The pageant would not be able to communicate ‘the celebration of biological women’ if it were forced to allow Green to participate,” the opinion reads. “The Pageant expresses its message in part through whom it chooses as its contestants, and the First Amendment affords it the right to do so.”

Green argued in court that her inclusion in the pageant would not prevent the Miss USA organization from expressing its viewpoints.

“Green’s insistence that there was no meaningful difference between Green and any of the pageant’s cisgender female contestants was precisely the opposite statement of the one that the pageant sought to make,” the opinion read. 

“The pageant’s desired expression of who can be an ‘ideal woman’ would be suppressed and thereby transformed through the coercive power of the law if the OPAA were to be applied to it,” the panel added.

One judge on the panel offered a dissenting opinion, arguing that the court should not have evaluated the constitutionality of the pageant’s decision before reviewing the issue according to Oregon state law. 

The American court system typically follows the doctrine of constitutional avoidance, which means that courts evaluate the constitutionality of the issue in question as a last resort.

“Judge Graber would vacate the judgment and remand the case to the district court to determine whether the OPAA applied to Defendant before this court addresses any constitutional concerns regarding the application of the statute,” the dissent read.