On the same day the U.S. House voted to advance sweeping protections for gay and transgender people, a federal judge ruled that a beauty pageant can limit contestants to only “natural born females.”
Beauty queen Anita Noelle Green competed in the Miss Universe pageant, was the first transgender contestant for Miss Montana and title holder for Miss Elite Earth Oregon 2019. Only one pageant has excluded her on the basis that she’s not a “natural born female” — Miss United States of America. A federal judge OK’d that policy on Thursday.
Green says she has wanted to compete in beauty pageants since she was a child, inspired by watching her sister compete.
“I always was so impressed with how articulate and confident she was onstage,” Green says in court documents. “I want to participate in pageants for the same reason every woman wants to — to gain a sense of confidence and poise, and to feel beautiful and glamorous.”
She started participating in pageants in 2017, becoming the third transgender woman to compete since Miss Universe, the umbrella organization for the Miss Montana pageant Green competed in, ended its ban on the participation of transgender women in 2012. Green went on to participate in other pageants, and in 2018 became Miss Earth USA Elite Oregon.
Then Green applied to compete in Miss United States of America’s 2019 Oregon pageant, even though she knew it refused to allow transgender women to participate. The organization is separate and distinct from the Miss America pageant.
“I hoped that USOA would change its discriminatory policy and accept my application,” Green says in court documents.
But Green says the pageant denied her application and refunded her entry fees on the same day she applied.
“I was not interviewed or asked anything about my application,” Green says.
Green sued Miss United States of America in December 2019, claiming its gender identity discrimination violates Oregon’s Public Accommodations Act and infringes on her First Amendment rights to free speech and free association.
But the pageant claims it, too, has the First Amendment right to free association: in this case, the right to deny access to “non-biological females.” The pageant says in court documents that its mission is geared toward “natural born women” and that including Green would “undermine its vision” and mar its “message of biological female empowerment.”
The pageant’s motion to dismiss repeatedly misgenders Green, referring to her as “a biological male who identifies as female” and “a man who identifies as a woman.”
Green clarified in a declaration to the court that she has “always been a woman.”
“I never altered my gender or sex,” Green said. “I simply affirmed my underlying gender identity as female based on a realization of who I deeply was.”
Attorneys for Miss United States of America claim the name of the pageant itself makes the dismissal of Green’s claims the obvious course of action.
“As the caption of the complaint shows, defendant and its pageant are called ‘Miss United States of America,” attorneys for the pageant argued. “That simple undisputed fact, and the First Amendment rights of free association and expression… dictates the dismissal of this case.”
The pageant also claimed Green had filed her application after the deadline had passed. But Marsha Lawson, promotions director for the pageant in 2019, says that the hard deadline was never applied to other contestants.
“Many contestants submitted applications well after January 2019 and were allowed to compete in the USOA Miss Oregon state-wide competition,” Lawson said in a declaration with the court. “I personally recruited these contestants. There was at least one person who became a contestant only a few weeks prior to the USOA Miss Oregon pageant and after the August 20, 2019 entry deadline.”
Green says she wants the voices of all women to be heard in pageants like Miss United States of America.
“Although criticized historically for objectifying women, pageants have developed over history to primarily empower women,” Green says in the lawsuit. “Although comparisons of beauty and femininity remain central to the theme of pageants, pageants offer the women who participate in them significant benefits, such as confidence building, team-building, public-speaking skills, community service, and scholarship and professional opportunities.”
But U.S. District Judge Michael Mosman sided with the pageant organization on Thursday, based on First Amendment concerns. Ruling from the bench, Mosman found that the pageant is an “expressive” organization, rather than a commercial one. Therefore, Mosman found, Miss United States of America has a First Amendment right to its “message” and can’t be required to change it.
Green said after the ruling that she was evaluating whether to appeal.
“I believe United States of America Miss is on the wrong side of history for choosing to actively discriminate against transgender people,” Green said, “but the road to creating meaningful change has always been a long and bumpy one.”