The Ninth Circuit Court of Appeals denied an en banc rehearing in Green v. Miss United States of America LLC, a lawsuit that sought to compel the Miss United States of America beauty pageant to change its eligibility requirements for “natural born females” by including transwomen in its contests.
A lower court had held that the First Amendment protects the pageant’s expressive association rights. The Ninth Circuit differed from the district court by basing its ruling not on the First Amendment’s right of free association, but on its protection against compelled speech. The Ninth’s majority opinion from last November is worth recounting:
“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 so doing, pageants ‘provide communities with the opportunity to articulate the norms of appropriate femininity both for themselves and for spectators alike.’”
This decision does not preclude another pageant from voluntarily electing to include transwomen. Indeed, this decision should uphold that as well. But the idea of government compulsion to force pageants and spectators to end their traditional format is offensive to a free society. The Ninth’s decision means there will be no rehearing en banc, thus making this likely a matter of settled law.