From Green v. Miss United States of America LLC, decided today by the Ninth Circuit (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."
