Free Speech

Beauty Pageant Has First Amendment Right to Exclude Male-to-Female Transgender Contestants

So a federal district court apparently held in Green v. Miss United States of America, LLC.


Judge Michael W. Mosman announced his oral decision yesterday, promising a written "opinion to follow." I'll blog about the opinion when it's out, but in the meantime you can see the pageant's motion for summary judgment (which the court granted), the would-be contestant's opposition, and the pageant's reply.

You can also read Apilado v. North American Gay Amateur Athletic Alliance (W.D. Wash. 2011), the Too Many Straights case:

This case arises from the disqualification of a softball team from the 2008 Gay Softball World Series (GSWS). The event was operated by Defendant North American Gay Amateur Athletic Alliance (NAGAAA) and attended by Plaintiffs Steven Apilado, LaRon Charles, and Jon Russ. The Plaintiffs' team, D2, advanced to the final round and was playing in the championship game when the commissioner of the Atlanta league filed a protest under Rule 7.05 of the NAGAAA Softball Code against six players of the D2 team.

Rule 7.05 states that "[a] maximum of two Heterosexual players are permitted on a GSWS roster." Penalties for violation of this rule include permanent suspension of the heterosexual player, disqualification and forfeiture of the offending team's games, one year's suspension of the team's manager, and a minimum $100 fine imposed against the team's association. Under Softball Code Section 1.15, Gay means "having a predominant sexual interest in a member or members of the same sex and includes both gay men and lesbians." Softball Code Section 1.18 defines heterosexual as "having a predominant sexual interest in a member or members of the opposite sex."

The Softball Code also establishes a mechanism for enforcing rule 7.05: the protest hearing. Rule 8.04 states that a protest can be filed by the manager of the opposing team, an open division director, or an association's commissioner. Rule 8.06 establishes the procedure for these hearings: a protest committee convenes, the protest committee chairperson begins the proceedings by explaining the procedures, the protesting party explains the basis for the protest and presents any available evidence, the protested party has an opportunity to rebut the argument, the protest committee may interview players, and the protest committee conducts a vote by secret ballot to determine the outcome.

D2 lost the championship game. When it was over, NAGAAA's protest committee conducted a hearing. Upon conclusion of the hearing, the protest committee determined that Plaintiffs were "non-gay," and, therefore, that D2 was not eligible to compete in GSWS. The protest committee disqualified D2 from the tournament, declared its victories and second-place finish in the tournament forfeited, and recommended that Plaintiffs be suspended from NAGAAA softball play for one year.

[The Court finds] that NAGAAA is a "public accommodation" under Washington's Law Against Discrimination (WLAD), Wash. Rev. Code § 49.60 et seq., and that NAGAAA unlawfully discriminated against Plaintiffs [in violation of this law] based on their actual or perceived sexual orientation …, but that the First Amendment protects [NAGAAA's] right to exclude those whose membership would negatively impact their expressive activity…. The first part of this Order [thus] holds that Defendant has a constitutional right to exclude anybody who does not share in its values….

The second part of the Order holds that Plaintiffs did not show a real and immediate threat of repeated harm [from the supposedly intrusive way in which the policy was applied -EV] because their injury resulted from the manner in which the written policy was applied, not from the language of the policy itself. [Text moved: The alleged events that led to Plaintiffs' injuries — the protest committee asking personal and intrusive questions in front of approximately twenty-five delegates and observers, repeating votes until a verdict of "non-gay" was reached, and widely publicizing the verdict — cannot be directly traced to the written policy.] It did not appear to the Court that Plaintiffs were arguing that they were injured simply because NAGAAA adopted particular definitions of gay and straight, but rather because NAGAAA inquired into Plaintiffs' sexual orientation in a way that was intrusive and disrespectful.

Accordingly, the Court's analysis is confined to the allegedly intrusive questioning, not the definitions of gay and straight…. Defendant could still be liable for its actions [in the questioning]. In a recent case, the Supreme Court looked to the activities of the Westboro Baptist Church, a virulently anti-gay group who display hateful signs at soldiers' funerals. Snyder v. Phelps. The Court concluded that the First amendment does not protect all speech from claims of intentional infliction of emotional distress or invasion of privacy. Whether or not Defendant's treatment of Plaintiffs at the protest hearing is deserving of First Amendment protection remains to be seen….

NEXT: Plaintiff Loses Libel Appeal Against Above The Law

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “I’ll blog about the opinion when it’s out.”

    Looking forward to it. In the meantime, any thoughts on the First Circuit striking down Maine’s cable TV law?

    1. General Mills ought never have passed the bar…

  2. Gays vs Transgenders? Getting hard to keep track of who offends what offends who in this world.

    1. “having a predominant sexual interest in a member or members of the opposite sex.”

      If a male identifies as a female, and they are predominantly interested in females, is that the opposite or same sex?

      1. 25 years ago, Rush Limbaugh joked about “Male Lesbians.”
        Now they are here….

    2. “Gays vs Transgenders? Getting hard to keep track of who offends what offends who in this world.”

      A reliable chart:

      Transgendered persons offend Republicans, conservatives, and the religious right.

      Gays offend Republicans, conservatives, and the religious right (lesbians also titillate Republicans, conservatives, and the religious right).

      Muslims offend Republicans, conservatives, and the religious right.

      Educated women offend Republicans, conservatives, and the religious right.

      ‘Secular liberal’ Jews offend Republicans, conservatives, and the religious right.

      Blacks offend Republicans, conservatives, and the religious right (particularly when attempting to vote).

      People who don’t wish to treat gays and transgendered persons like dirt offend Republicans, conservatives, and the religious right.

      Persons disinclined to provide limitless privilege for superstition, or to conduct prayer in classrooms, offend Republicans, conservatives, and the religious right.

      Non-White immigrants offend Republicans, conservatives, and the religious right.

      Persons who do not understand the glory of the Confederate flag offend Republicans, conservatives, and the religious right.

      Persons who enjoy living in modern, successful, educated communities (particularly if located near salt water) offend Republicans, conservatives, and the religious right.

      Agnostics and atheists offend Republicans, conservatives, and the religious right.

      Persons who object to use of a vile racial slur offend Republicans, conservatives, and the religious right.

      1. A reliable chart:

        Backward progressives embrace the mutilation of the mentally ill using a pseudo diagnosis in the style of josef mengele.

        1. One of the great achievements of the liberal-libertarian mainstream during my lifetime is that our vestigial bigots no longer wish to be known as bigots, at least not publicly.

          A half-century ago, the bigotry was open, common, even casual. The racists, misogynists, gay-bashers, and other bigots wanted everyone to know that they were bigots, and that their preferences were the way it would be.

          Black children were told to find another way home from school by homeowners who didn’t want them on “their” sidewalks — and they did. Women were dragged into homes by the sleeve or hair for beatings everyone could hear — although no one helped. Educated women were relegated to ‘help wanted: female” jobs and shunned by graduate schools. Gays were berated mercilessly and beaten in alleys — by the police. The clergy asked students in public classrooms about church attendance, telling the less churchly students to ask parents to take them to church.

          Today’s bigots, however, are more guarded and defensive. They hide behind euphemisms such as “traditional values,” or “family values,” or “religious values,” or “colorblind,” or “conservative values.” They express their genuine opinions solely in circumstances they consider safe, such as private homes, online message boards, militia gatherings, and Republican Committee meetings.

          The changes in our society’s treatment of bigotry and bigots constitute important progress for America, shaped against the wishes and efforts of conservatives in our culture war.

          1. Must be a lot of backward racist bigots out there who dont embrace barbaric Josef Mengele type experimental treatment for the mentally ill.

            Must also be a lot of smart & tolerant progressives out there who believe josef mengele set the gold standard for the best treatment of the mentally ill.

            1. I didn’t follow your reasoning, Joe_dallas, but I enjoy watching better Americans stomp conservatives silly in the American culture war, shaping our national progress for so long as any of us has been alive.

              1. No one would you to understand that barbaric treatments for the mentally ill would be from the josef mengele playbook

      2. lesbians also titillate Republicans

        Only the hot ones.

  3. How do you prove someone is gay or not? Or really identifies with the gender which God assigned to them at birth? I guess the gay thing you could make them “prove” it by engaging in a specific sexual act. But, gender, yeah I’m at a loss about that one…

    1. Chuck & Larry…

      Memory is that it was something involving medical benefits for one of theirs children.

    2. “How do you prove someone is gay or not?”

      This was discussed when the original case was decided.

      My question in this: how do they check?

      “Ump, that guy’s a ringer!”

      “No, really, I’m as queer as a three-dollar bill.”

      “I don’t believe you. Prove it.”

      “Uh, okay.”

      “Oh, stand up. Anybody can fake it, but you have to be a real homo to play in this league.”

      “I am real!”

      “Then … name Bette Midler’s last three albums.”

      “Umm… Peggy Lee Songbook, Cool Yule and …”

      “C’mon, straight boy.”

      “And Jukebox!”

      “Take your base.”

      1. Whoops, dialog should have been quoted somehow.

    3. Well, one problem is that as with any other continuum, it’s clear what people at the extreme ends of the continuum are, but it’s not clear where the line is in the middle. For example, take a man who only has sex with women, but who fantasizes about guys while he does. What’s his sexual orientation?

      And part of the reason that sexual orientation discrimination is so silly — regardless of which side is doing it — is that there is no working definition of either homosexuality or heterosexuality that unambiguously takes in all those who fit and only those who fit. It is a continuum.

      1. A former girlfriend long ago accused me of being gay because I don’t like thousand island dressing. I said I didn’t like the lumps in it, and she said, “Oh, that’s OK then.” She didn’t strike me as a Cosmo reader, so I have no idea where she got such a strange idea, or why she so readily backed off.

      2. I read sometime in the last few months of a married couple who both had sex change surgery, and remained happily married. I wonder if either qualifies as gay or bi or even trans, since they seem to be betraying the faith by remaining hetero to each other after transitioning.

        They have so many bizarre rules that it is no wonder they are turning on each other.

      3. For example, take a man who only has sex with women, but who fantasizes about guys while he does. What’s his sexual orientation?


    4. ” How do you prove someone is gay or not? ”

      What standard of proof should govern whether a claimant is superstitious enough to qualify for snowflake privilege?

      1. Obviously that is why we have you Rev.

        1. I think my role here is mostly to precipitate and identify conservative hypocrisy.

          Well, that and the short-form poetry.

          And the soundtrack.

          A little culture in this right-wing wasteland.

  4. The Opinion is word salad, chopped in strange diagonals, disregarding that the salad is compromised of a variety of variegated vegetables. Keep a safe distance from the opinion and its words. Twelve-inch might have the right idea.

    1. To be clear, this was from a guy with the handle Malvolio. IDK if he still comments under a different handle.

      1. Still here. What came from me, the Bette Middler dialog?

  5. They may have the right, but they also deserve what their betters are about to do to them. /s

  6. The sole purpose of life is reproduction.

    Who is more disabled? A wheel chair bound man with cerebral palsy and with intellectual disability who flirts and wants to have sex with females or a billionaire LGBTQ who wrote the novel of the century and found the cure to cancer?

    1. Reminds me of the twitter exchange between GG and NHJ over who was more privileged, the Smith College student or the janitor.

    2. The sole purpose of life is reproduction? Seriously?

        1. Not all reproduction requires actually producing spawn. I have seen studies showing how, for instance, the non-alpha males in a herd may not get to directly father offspring, but their protection of nieces and nephews and cousins does help propagate their genes.

        2. My grandmother had ten children, which was a lot, even for that era. Even so, I would estimate she spent no more than 1% of her time having sex, which is the way children are normally conceived. 99% of her time was spent on other activities, like cooking, cleaning, farming, teaching Sunday School. I think she would be very shocked to hear that the *sole* purpose of life is reproduction. I think she could have come up with a few other purposes that her life served.

          1. Humans are just your genes’ way of making new genes.

      1. The sole purpose of life is reproduction? Seriously?

        From a biological perspective…yes.

    3. If you believe in nothing then your statement about the purpose of life is correct. And this is why chasing religion out of society was a very bad idea….

      1. Religion wasn’t “chased out.” It faltered — in the modern marketplace — against reason, progress, science, and knowledge (except among the gullible).

        People are entitled to believe as they wish, but not to have superstition-based arguments and positions respected in reasoned debate. Competent adults neither advance nor accept superstition-based assertion, particularly with respect to public affairs.

        Why do you hate modern America?

    4. ‘more disabled’


    5. Depends: Does the billionaire do sperm or egg donations? Darwin doesn’t actually demand that you raise the kids yourself.

      Or he or she could just pay a close relative to have lots of kids; A brother or sister reproducing twice is worth as many Darwin points as personally doing it yourself. The further away you get, the more kids you have to pay for to break even, though.

  7. Men can’t compete in a Miss USA pageant?

    Haven’t the heteronormative oppressors done enough damage already?

    1. They have to identify as women. Or transition. Or something.

      1. So an out-and-proud man can’t compete in the Miss USA pageant?

        If that’s not sexism and discrimination I don’t know what is!

        And now I’m thinking about the Bloom County cartoons about the Mr. America pageant –

      2. Smith college now accepts male students if their birth certificates said they were born male, except Massachusetts is now issuing new birth certificates wit the new name & sex on them.

        1. Want a new life? Easy just “transition” to being a woman, get a new birth certificate, change your name (all in the name of TOLERANCE!) and then do it back again in another state. Done and done. Yeah maybe facial recognition gets you but there is enough out there to on how to “trick” those systems enough to get a DL or even passport.

  8. Homophobic judges everywhere, about homosexuality: “I can’t define it. But I know it when I flee it.”

    1. I thought it was the pageant officials who defined who could compete for the title of Miss USA.

      1. Don’t ruin my chance for a bad pun with the actual facts.

  9. I’m wondering how this decision will square with the equality act, if pro-gay or anti-gay discrimination is protected by the first amendment, at least in non-commercial private organizations that seems like it will limit is scope quite a bit.

    1. If the act passes, this case is moot.

      1. The Equality Act would have no impact because Miss United States is already in violation of Oregon’s comparable law.

    2. Assuming the judge basis his decision on Dale, I would think the Equality Act’s scope would be limited in the same way comparable state laws have been since Dale: likely not too much.

  10. So how do you conclusively determine that someone is gay?

    On second thought, I might not want to know.

    Unless it’s two good looking gay women.

  11. Transgender dysphoria is a mental disorder and should be treated as such.

    The mental health profession has a long sordid history of pseudo and dangerous false diagnosis and treatments for the mentally ill, electric shock treatments, frontal lobotomies, repressed memory to name a few.

Please to post comments