Pageants and Precedent: The Fight Over First Amendment Femininity

By: Hailey Hudson, Vol. 23 Staff Writer

Pageants have centered themselves around the principle of women empowerment, yet have been historically under-representative of all women, setting certain eligibility requirements for participants. Should pageants legally be required to include all women? Are their eligibility requirements, which create exclusivity to a certain set of women, disempowering non-eligible women and discriminatory? Or do pageant organizations have a first amendment right to define what “woman” means in line with their beliefs?

The U.S. District Court of Oregon, Portland Division and the Ninth Circuit answered this question. Anita Green, a transgender female, applied to participate in the Miss United States of America’s (“MUSOA”) Oregon pageant, and was denied because she was not a natural-born female. Green then sued MUSOA for gender identity discrimination. She alleged that the pageant discriminated against her, a transgender female, with the eligibility requirement of being a “natural-born female.” Green, a pageant veteran, alleged that she was deprived of the pageantry’s professional and academic opportunities as well as other benefits, such as confidence building and public speaking skills. Green argued that the MUSOA rules violated an Oregon law, which makes it unlawful “for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation.”

In response, MUSOA argued that being forced to include transgender females into their competition would force it to “express a message with which it disagrees,” thus violating its First Amendment right. MUSOA used two First Amendment arguments: that the law violated its free speech right and its freedom of association. Although not explicitly written in the First Amendment, the protection of expressive association is protected by it. This is due to the fact that group association is fundamental to furthering expression and messages in society.

The judge ruled in favor of MUSOA, not on its free speech argument, but on its freedom of association one. While the Oregon law did not burden MUSOA’s speech, MUSOA did meet the three criteria to exclude someone under the right of expressive association: (1) that the group is an expressive association; (2) the forced inclusion of an unwanted member would affect the group’s ability to express its viewpoints; and (3) the group’s interest in expressive association is very great. The state law, therefore, unconstitutionally forced MUSOA to include participants it did not want to include.

Green, not happy with being the runner-up, appealed. On appeal, MUSOA reasserted both its speech and association arguments. The Ninth Circuit also crowned MUSOA as the winner of the lawsuit, but on the opinion that the law did violate its First Amendment speech right. “As with theater, cinema, or the Super Bowl halftime show, beauty pageants combine speech with live performances…” and “it is commonly understood that beauty pageants are generally designed to express the ‘ideal vision of American womanhood.’” The court found that the First Amendment provided the pageant the right to voice its belief – that only natural-born women are qualified as women – and they could not be forced by state law to alter their beliefs. Therefore, the pageant had a right to define “woman” as “natural-born female” for their eligibility requirements.

Following Green v. Miss USOA came a complaint filed by Andrea Quiroga against the Miss Universe Organization (“MUO”), alleging that under a California law, MUO’s 70-year-old rule that required participants to have had never given birth, excluding participation of mothers, was discriminatory and unlawful. MUO could have likely utilized the First Amendment argument and precedent set out by MUSOA in Green as a sword in a lawsuit, but the issue never saw the spotlight because the parties settled behind closed doors. MUO agreed to no longer enforce rules excluding women who had ever been pregnant, had underwent childbirth, or were parents. The resolution of this complaint coupled with Green have set the stage as existing precedent for the most recent complaint about pageantry eligibility requirements.

The Miss America and Miss World organizations now find themselves and their eligibility requirements center stage. On September 16, Danielle Hazel filed a complaint with the New York City Commission on Human Rights against the pageants for discriminating against women who have legal dependents through their eligibility rules.

Miss World America’s national director made a statement that she was merely a franchise owner, the national director for the America subdivision of the larger, global Miss World program, and that accordingly she did not nor does not make any of the overarching Miss World rules. “Rules are made by our bosses in the U.K. . . . I follow their regulations.”

Miss America responded by denying any such discrimination against parents, clarifying that their “no legal dependents” rule was broader than just focusing on women who are mothers or had given birth. Miss America stated “[I]f you are responsible for the daily welfare of the child, that welfare must take precedence over wishing to compete in the contest. The rule has nothing to do with any attack on motherhood. It is solely to protect the welfare of minors dependent on their legal guardians.” This response indicates an unlikelihood of following in the heels of MUO and settling, agreeing to eliminate their eligibility requirement. It seems more likely that this case will be litigated, and the First Amendment arguments made in Green are Miss America’s best bet at being named the winner.

Miss America continued, stating “Miss America is a more than century-old institution that observes the highest standards of conduct, ethics, etc. That puts us in conflict sometimes with those who do not share those standards. Protecting the welfare of children is consistent with those standards.” This statement from Miss America implicates that the organization has certain ideals and standards, which fits nicely with the First Amendment precedent Boy Scouts v. Dale, where the Supreme Court held that a private organization can discriminate and exclude certain members due to their right of expressive association. The organization must have a strong reason for excluding certain members, which can be said to arguably have been given here in Miss America’s response. While litigation hasn’t commenced, it will be interesting to see if Miss America makes First Amendment arguments.

At the end of this dispute, it seems the parties won’t be holding hands in anticipation of the judges’ pick. On one hand, a broad ruling for Hazel could make the pageants ditch their eligibility requirements altogether (like MUO). A narrow ruling for Hazel could find common ground, forcing inclusion of only mothers, and leaving intact other rules. But a ruling for the organizations seems most in line with the precedent from Green, Boy Scouts, and the First Amendment’s freedom of expression and association. Will this be another winning moment for private, exclusionary organizations? We will have to wait and see who walks away with the crown.