Ninth Circuit Says Pageant Can Exclude Transgender Woman Under Free Speech

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit ruled yesterday that the Miss United States of America Pageant can exclude a transgender woman as a matter of free speech. The court said that the Pageant was inherently expressive, and that requiring it to include a transgender woman would impermissibly interfere with its message.

The case, Green v. Miss United States of America, arose when Anita Noelle Green, a transgender woman, sued the Pageant for excluding her in violation of the Oregon Public Accommodations Act. The Pageant claimed that it declined to include Green because she failed to meet its "natural born female" eligibility criterion, and that the Oregon Act violated the First Amendment insofar as it required the Pageant to include her. The district court ruled for the Pageant, and the Ninth Circuit affirmed (though for a slightly different reason).

The Ninth Circuit held that the Pageant was an expressive activity, protected by free speech, and that forcing it to accept a transgender woman would fundamentally alter its expressive message. The court said that compelling the Pageant to include the woman would amount to a content-based regulation on speech, triggering strict scrutiny--a standard the government couldn't meet. According to the court, that's because eliminating discrimination against LGBTQ individuals isn't a compelling government interest, at least in the speech context.

Judge VanDyke concurred and argued that requiring the Pageant to include Green would also violate the Pageant's First Amendment right to expressive association. (That was the basis of the district court's ruling.)

Judge dissented. She argued that the court should first figure out whether the Oregon Act even applied to the Pageant. But if it did, she argued that Green should prevail: the Oregon law compels neither speech nor association.