The Volokh Conspiracy
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Beauty Pageants Have First Amendment Right to Limit Contestants to "Natural Born Females": No Rehearing En Banc
The Ninth Circuit has just decided not to rehear this case, so the panel opinion remains the law.
The order, which appears not to be accompanied by any dissents from denial of rehearing en banc (or concurrences in the denial) is here:
A judge of this court sua sponte requested a vote on whether to rehear this case en banc. A vote was taken, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. See Fed. R. App. P. 35(f). Judges Forrest and H.A. Thomas did not participate in the deliberations or vote in this case. Rehearing en banc is DENIED.
Here's the key part of the Nov. 2 panel majority opinion, in Green v. Miss United States of America LLC (Judge Lawrence VanDyke, joined by Judge Carlos Bea, with Judge Susan Graber dissenting):
Anita Green, who self-identifies as "an openly transgender female," sued the Miss United States of America pageant, alleging that the Pageant's "natural born female" eligibility requirement violates the Oregon Public Accommodations Act ("OPAA"). The district court granted the Pageant's motion for summary judgment, holding that the First Amendment protects the Pageant's expressive association rights to exclude a person who would impact the group's ability to express its views.
We conclude that the district court was correct to grant the Pageant's motion for summary judgment, but reach this conclusion not under the First Amendment's protection of freedom of association but rather under the First Amendment's protection against compelled speech….
As with theater, cinema, or the Super Bowl halftime show, beauty pageants combine speech with live performances such as music and dancing to express a message. And while the content of that message varies from pageant to pageant, it is commonly understood that beauty pageants are generally designed to express the "ideal vision of American womanhood." In doing so, pageants "provide communities with the opportunity to articulate the norms of appropriate femininity both for themselves and for spectators alike."
Equally important to this case is understanding the method by which the Pageant expresses its view of womanhood. Given a pageant's competitive and performative structure, it is clear that who competes and succeeds in a pageant is how the pageant speaks. Put differently, the Pageant's message cannot be divorced from the Pageant's selection and evaluation of contestants. This interdependent dynamic between medium and message is well-established and well-protected in our caselaw….
Many pageants deploy a similar approach. For example, "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. Finally, "Miss International Queen" hopes "[t]o create equal[ity] and acceptance in society" for individuals who identify as transgender, in part by limiting contestants to members of that community….
The [Miss United States of America] Pageant would not be able to communicate "the celebration of biological women" if it were forced to allow Green to participate. As the district court explained, the Pageant's decision to limit contestants to "natural born female[s]" undoubtedly conveys that message, because:
Someone viewing the decision to exclude transgender women (and cisgender males) from a beauty pageant would likely understand that the pageant organizers wished to convey some message about the meaning of gender and femininity, and would probably also grasp the specific implication that the pageant organizers did not believe transgender women qualified as female.
The First Amendment affords the Pageant the ability to voice this message, and to enforce its "natural born female" rule.
Note that my UCLA Amicus Brief Clinic students and I filed a brief in this case on behalf of the Libertarian Law Council and the Institute for Free Speech.
