Female Beauty Pageants Can Exclude Men Who Identify as Women, 9th Circuit Rules

A federal appeals court this week upheld the rights of female-only beauty pageants to exclude biological males in a major case that impacts the debate over transgenderism in society.

Anita Green, a biological male who identifies as female, had sued in federal court, alleging that the Miss United States of America pageant’s limitation to “natural born” females violated the Oregon Public Accommodations Act by discriminating based on gender identity. 

Green lost at the district court. On Tuesday, the U.S. Ninth Circuit Court of Appeals upheld that lower court ruling, but for different constitutional reasons.

The panel, in a 2-1 split, ruled that the pageant had a constitutional right under the First Amendment’s Free Speech Clause to require that participants be biologically female. 

“Forcing the Pageant to accept Green as a participant would fundamentally alter the Pageant’s expressive message in direct violation of the First Amendment,” Judge Lawrence VanDyke wrote for the majority.

VanDyke compared the pageant to pageants that were created to celebrate specific cultures. 

“‘Miss Asian America’ attempts to honor ‘Asian culture, beauty, and intelligence,’ in part by limiting its contestants to only those who have at least one-fourth Asian ancestry. … The ‘Christian Miss’ pageant strives to ‘help young women shine bright in this world,’ in part by limiting contestants to only those who can affirm certain Christian doctrines,” the judge wrote. “… Miss United States of America determined, as did every other pageant mentioned above, that including and excluding certain people was the best means necessary to express and achieve this message. The Pageant would not be able to communicate ‘the celebration of biological women’ if it were forced to allow Green to participate.”

The pageant’s message, he wrote, “cannot be divorced from the Pageant’s selection and evaluation of contestants.”

Alliance Defending Freedom (ADF), which represented the pageant, applauded the court’s 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,” said ADF senior counsel Christiana Kiefer. “Forcing the pageant to include a male would change the message of what it means to be a woman – similar to how changing the casting choices in the Hamilton production would alter its message.” 

Photo credit: ©Getty Images/Patrik Giardino

Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.

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