Miss USA can exclude transgender contestants, appeals court rules
A federal court ruled that Miss United States of America cannot prohibit trans women from participating.
The U.S. Court of Appeals, Ninth District ruled in response to a lawsuit filed by Miss Oregon-hopeful and openly Transgender woman Anita Green. After she was denied entry to the Miss Oregon beauty pageant, she sued Miss USA.
She initially sued Miss USA in 2019, but the U.S. District Court for the District of Oregon dismissed the case, leading her to pursue an appeal.
Green filed the lawsuit claiming that the pageant’s decision to allow only “naturally born female” contestants violated the Oregon Public Accommodations (OPAA) which advocates equal rights for all people, regardless of their beliefs, backgrounds or identities.
The OPAA states that “all Oregonians have the right to full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, disability, marital status or age (above 18).”
Miss USA agreed that it must abide to OPAA, but it argued it was within its First Amendment rights reject a contestant.
The appellate court Wednesday released its 106-page opinion. It agreed with Miss USA’s lawyers and said that the First Amendment protected the organization’s “expressive association rights to exclude any person who would affect the group’s ability to express itself.”
The court also ruled that the pageant’s “naturally born female” eligibility requirement was not in violation OPAA and that allowing Green to compete in the pageant would stop the organization from expressing itself.
“The opinion states that the pageant would not have the ability to communicate “the celebration of biological women” if it had to allow Green to take part. “The First Amendment allows the Pageant to choose its contestants in part to communicate its message. “
Green argued that her inclusion in Miss USA would not stop the organization from expressing itself.
“Green’s assertion that there was no meaningful distinction between Green and any pageant’s cisgender women contestants was exactly the opposite statement that the pageant wanted to make,” the opinion stated.
“The panel stated that the pageant’s desire to express who can be an ideal woman’ would have to be suppressed and thereby transformed by the coercive force of the law if it were to be applied to the OPAA.
One judge of the panel offered a dissident opinion, arguing the court should not have assessed the constitutionality the pageant’s decision before examining the issue under Oregon state law.
The American court system follows the doctrine of Constitution Avoidance. This means that courts only consider the constitutionality of the issue at hand as a last resort.
“Judge Graber would vacate this judgment and remand it to the district court to determine if the OPAA was applied to Defendant. This court will address any constitutional concerns regarding application of the statute,” the dissent stated.
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