- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Constitutional Law
- Date Filed: 11-02-2022
- Case #: No. 21-35228
- Judge(s)/Court Below: VanDyke, Circuit Judge, for the Court, joined by Bea, Circuit Judge, with Graber, Circuit Judge, dissenting.
- Full Text Opinion
After she was ineligible to compete in the Miss United States of America Pageant, Green, who identifies as an openly transgender female, challenged the Pageant’s “natural born female” eligibility requirement as a violation of the Oregon Public Accommodations Act (“OPAA”). Green appealed the district court’s decision granting the Pageant’s motion for summary judgment, which concluded that the requirement falls within the liberties protected by the First Amendment. The Pageant contended that an injunction requiring them to allow Green to compete would infringe on their free association and free speech rights. The First Amendment ensures that “Congress shall make no law . . . abridging the freedom of speech,” which includes “various forms of entertainment and visual expression as purely expressive activities.” U.S. Const. amend. I.; Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir. 2010). These protections extend to theatrical productions that “frequently mix speech with live action or conduct,” and beauty pageants fall within this ambit. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975). The Pageant expressed a message communicating “the celebration of biological women” through a combination of speech and live performances. Because this message was inseparable from the Pageant’s selection of contestants, the “natural born female” eligibility requirement was a manner in which the Pageant exercised its right to free speech. The Court determined that using state law to forcibly alter that message by compelling Green’s participation would be a violation of the Pageant’s First Amendment right to free speech because including a contestant who is not a “natural born female” would restrict its expression of its collective point. Therefore, the Court concluded that the “natural born female” requirement was protected under the First Amendment right to free speech and the OPAA did not apply. Affirmed.