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Ninth Circuit Upholds “Natural Born Female” Requirement in Pageant

Anita Green, "an openly transgender female," sued the Miss United States of America pageant (Pageant). The Pageant only allows "natural born females" to enter. Contestants must be between 18 and 28 years of age, have "never posed nude in film or print media," and not be married or have given birth. Green alleges the "natural born" requirement violates the Oregon Public Accommodations Act. The Pageant claims that forcing Green's inclusion would "unconstitutionally infringe on both its free association and free speech rights" in violation of the First Amendment.

The Ninth Circuit considered Green's claims after the district court dismissed her suit. The circuit court stated the First Amendment applies to beauty pageants, asserting it is commonly understood that "beauty pageants are generally designed to express the 'ideal vision of American womanhood.'" The Pageant's "message" is that the "ideal woman” is a biological female. Moreover, the appellate court said, "it is clear who competes and succeeds in a pageant is how the pageant speaks." The court compared this type of speech to Lin Manuel Miranda's diverse casting of Hamilton. In the latter instance, the “who” participated as actors in that show reflected a particular message. If Miranda had been forced to include white actors, the show's "message" would not have been the same. The Ninth Circuit majority stated, writing for a divided panel, "Forcing the Pageant to accept Green as a participant would fundamentally alter the Pageant's expressive message in direct violation of the First Amendment." Because of this conclusion, the court did not consider the Free Association claim.