The Volokh Conspiracy

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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….