Miss United States of America is legally able to reject men who claim that they’re women, an appeals court has ruled.
“Forcing the Pageant to accept Green as a participant would fundamentally alter the Pageant’s expressive message in direct violation of the First Amendment,” VanDyke wrote for the majority of a panel of the U.S. Court of Appeals for the Ninth Circuit.
The ruling was against Anita Noelle Green, a biological male who identifies as transgender and sued Miss United States of America in 2019, alleging the pageant violated an Oregon law called the Oregon Public Accommodations Act (OPAA) by rejecting Green’s application to participate in the pageant.
VanDyke was joined by Circuit Judge Carlos Bea, a George W. Bush appointee.
Circuit Judge Susan Graber, a Clinton appointee, dissented.
Graber said it wasn’t clear whether the Oregon law applies to the pageant because the law only applies to businesses that have membership policies “so unselective that the organization can fairly be said to offer its services to the public.” The lack of clarity means the district court should have allowed discovery or briefing on the matter, she said.
“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,” Graber argued. “Applying our ordinary rule of constitutional avoidance, I would vacate the judgment and remand this case to the district court to determine whether the OPAA applies to Defendant before we address any constitutional concerns regarding the application of the statute.”
Graber also said the Oregon law “neither improperly compels speech nor violates the owner’s freedom of association.”
VanDyke authored a concurring opinion to address the dissent, finding that the pageant is protected by the First Amendment from both compelled speech and forced association.
He referenced a previous Supreme Court ruling that enabled the Boy Scouts to exclude a gay leader because including him would “interfere with the Boy Scouts’ choice not to propound a point of view contrary to its beliefs.”
“The case before us is not meaningfully distinguishable,” he said. Green identifies as a transgender woman and an activist who has talked about using pageant platforms to deliver a message that runs against Miss United States of America’s beliefs.
“The Pageant expresses its message through its contestants—both by those who compete and those who ultimately succeed,” VanDyke said. “And the Pageant has actively and consistently enforced its eligibility requirements precisely over a concern about protecting its message. The forced inclusion of a male would therefore directly impact the Pageant’s message in a way fundamentally at odds with the Pageant’s views on womanhood.”
