First Amendment

United States of America Pageants Has First Amendment Right To Exclude Transgender Women, Court Says

Plus: The emptiness of Democrats' pro-democracy rhetoric, the real reason Social Security checks are getting bigger, and more...


Female beauty pageants are allowed to exclude transgender women, the U.S. Court of Appeals for the 9th Circuit has ruled. The case stems from a complaint filed by Anita Green, a transgender woman who wanted to compete in a pageant put on by Miss United States of America LLC, which operates under the name United States of America (USOA) Pageants.*

After competing in women's beauty pageants in Montana, Oregon, and Nevada, Green inquired about competing in a United States of America Pageants contest. The director told Green the pageant is only open to "natural born female(s)."

Green sued, a district court ruled in favor of the pageant, and Green appealed. Now, a panel of 9th Circuit judges has also ruled in favor of USOA Pageants. In a November 2 decision, the judges held that pageant rules did not violate the Oregon Public Accommodations Act (OPAA) and that its decision to exclude transgender women was protected by the First Amendment.

The First Amendment protects theater, and a pageant is a type of theater, the court said. Specifically, it's a kind of theater meant to showcase an "ideal vision of American womanhood."

The "natural born female" requirement is just one of many exclusionary requirements for pageant entry, the court points out:

The "Miss" division, which Green applied to, requires among other things that contestants be "between 1828 years of age," have "never posed nude in film or print media," and not be married or have given birth. Finally, and most relevant to our case, contestants must also be "a natural born female.

The Pageant enforces these requirements. For example, one applicant was
rejected for having posed nude. Another was rejected for including "photographs and language which were inconsistent with USOA Pageants' message." The Pageant explained that those photographs and language were "inconsistent with [the
Pageant's] vision and message we wish to associate with and does not coincide with
United States of America Pageants' efforts to produce community role models."

Mandating USOA Pageants allow Green to be in the pageant would amount to forcing the pageant to say that transgender women are included in a vision of ideal American womanhood and that would amount to compelled speech, the court held. "Given a pageant's competitive and performative structure, it is clear that who competes and succeeds in a pageant is how the pageant speaks," wrote the judges. "Put differently, the Pageant's message cannot be divorced from the Pageant's selection and evaluation of contestants." 

I don't think the court is wrong about what allowing transgender contestants implies, though it is a shame USOA Pageants doesn't broaden its horizons a bit. Being more inclusive seems like not only the right thing to do but also a way it could help beauty pageants shed some of their old-fashioned, intolerant image and help with their lack of resonance with today's audiences.

That said, perhaps what remains of the dwindling pageant audience would disapprove of Green's inclusion and USOA Pageants is just playing to its core audience. Or perhaps the pageants' leaders just deeply believe that transgender women should not be included. In any event, this is certainly not the first time beauty pageants have failed to be inclusive. Perhaps beauty pageants further fading into irrelevancy is not at all a bad thing.

But whatever you think about beauty pageants or their rules, they still have First Amendment rights, including freedom of expression and freedom of association. The district court rejected USOA Pageants' freedom of speech defense but said it was allowed to reject Green on freedom of association grounds. The 9th Circuit held that the freedom of speech claim worked, too (and thus it needn't even get into the freedom of association claim): "Forcing the Pageant to accept Green as a participant would fundamentally alter the Pageant's expressive message in direct violation of the First Amendment," it held.


The problem with "pro-democracy" rhetoric. Josh Barro has a good rant about the Democrats' "pro-democracy" messaging:

When Democrats talk about "democracy," they're talking about the importance of institutions that ensure the voters get a say among multiple choices and the one they most prefer gets to rule. But they are also saying voters do not get to do that in this election. The message is that there is only one party contesting this election that is committed to democracy—the Democrats—and therefore only one real choice available. If voters reject Democrats' agenda or their record on issues including inflation, crime, and immigration (or abortion, for that matter), they have no recourse at the ballot box—they simply must vote for Democrats anyway, at least until such time as the Republican Party is run by the likes of Liz Cheney and Adam Kinzinger.

This amounts to telling voters that they have already lost their democracy.

More here. See also: "Turning 'Saving Democracy' Into a Campaign Slogan Isn't Helping Save Democracy."


A weird thing to brag about. In a now-deleted tweet, the White House boasted that "seniors are getting the biggest increase in their Social Security checks in 10 years through President Biden's leadership." But as many folks quickly pointed out, the Social Security increases is tied to cost of living. The reason this year's increase is so big is because inflation is so high. And that's probably not something the Biden administration wants to take credit for (although ).


• So, where was all that rainbow fentanyl on Halloween?

• A federal judge says "Iowa school districts must consider medically sensitive students' requests to require mask wearing of those around them, notwithstanding a state law that banned school mask mandates," the Des Moines Register reports.

• The Department of Homeland Security has branded election deniers as potential terrorists, notes Reason's Joe Lancaster.

• Yikes:

• In case you were wondering…

*CORRECTION: This post has been updated throughout to reflect that Miss United States of America LLC/USOA Pageants and Miss USA are not the same entity. Miss USA does allow transgender women to compete.