In US, a federal appellate court ruled on November 3 that a national beauty pageant has the right under the First Amendment to bar a transgender woman from competing. According to the court, allowing a transwoman to compete might conflict with the message the pageant wants to convey about “what it means to be a woman.”

Anita Green filed a lawsuit alleging that the Miss United States of America pageant had disqualified her from competing in 2019 in violation of a state anti-discrimination law. The 9th US Circuit Court of Appeals decided in her favour. Transgender contestant Green has participated in Miss Montana USA, Miss Earth, and Ms. World Universal. She claimed that the organization rejected her application because it did not view her as a “natural born female” while she was residing in Clackamas, Oregon and preparing to compete in the Miss United States of America’s Miss Oregon pageant.

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Green filed a lawsuit, claiming the company was in violation of a state law that forbids discrimination against individuals based on their gender identity or sex. However, lawyers for the Miss USA Pageants claimed that the pageant program was created to celebrate and promote “natural born women” by disseminating a message of “biological female empowerment.” The pageant has a number of eligibility requirements, some of which are based on age, marital status, and gender identity.

The pageant organization won a 2-1 majority on the three-judge panel of the 9th Circuit, which ruled that forcing the pageant to include a transgender woman would fundamentally change the message the pageant was trying to convey. The appellate court agreed with a lower court’s conclusion that anyone who witnessed the pageant organisers’ decision to exclude transgender women would probably conclude that they did not consider transgender women to be female.

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The fact that the pageant was a business that engaged in commerce was not enough to override that free speech right, the panel found. Forcing the pageant to include a transgender contestant would amount to “compelled speech,” which is a violation of the First Amendment. Judge Susan P. Graber stated in a dissenting opinion that the majority omitted crucial steps when determining whether the First Amendment applied.

“The First Amendment affords the Pageant the ability to voice this message, and to enforce its ‘natural born female’ rule,” the appellate court found.

Green expressed her disappointment following a lower court decision that supported the pageant last year, but added that the case raised awareness of discrimination against transgender people in the pageant circuit.