Women-only beauty pageant wins in court

Their flap began on Facebook. Beauty queen Anita Green queried Tanice Smith about rules for competing in the Miss United States of America Pageant, then dropped a bombshell: “You know I’m transgender, right?” 

Smith explained her pageant’s “natural-born female” rule and offered help finding another pageant for Green, who later won a Miss Earth USA Elite title in Oregon. Green applied to Smith’s pageant anyway and was denied entry. A 2019 lawsuit ensued, with Green asserting gender-identity discrimination by the Las Vegas–based Miss United States of America LLC.

On Nov. 2, a federal appellate court disagreed. In a majority opinion, Circuit Judges Carlos Bea and Lawrence VanDyke ruled the pageant cannot be forced to accept a transgender contestant. That 9th U.S. Court of Appeals decision affirmed an April 2021 district court ruling, also on First Amendment grounds.

After producing pageants for another group, Smith created Miss United States of America in 2018. Her organization has no ties to the Miss USA pageant conducted by the Miss Universe organization. Smith’s pageants do not feature a faith component per se, but they require a morals and ethics contract, emphasize community service, and assign half of each participant’s score to mental acuity. Empowering women is the pageant’s central theme.

“This is a pageant that truly is looking for the girl next door who is very moral, has very good values, and can be a role model for women in the future,” Smith said. The organization’s website lists other eligibility requirements besides being a natural-born female, including having never posed nude in film or print media. Judging in the pageant’s final round is weighted 50 percent on a contestant’s onstage interview, 25 percent on an evening gown competition, and 25 percent on swimwear. In the teen category, a fitness wear contest takes the place of swimwear. 

Calls for comment about the pageant decision were not returned by Green’s Portland attorney, Shenoa Payne, or by the Basic Rights Oregon group that advocates for LGBTQ rights in the state. Green argued her state’s Oregon Public Accommodations Act (OPAA) protected her from pageant discrimination. The ruling drew a dissenting opinion about OPAA from the panel’s third member, Circuit Judge Susan Graber.

OPAA bars discrimination based on sexual orientation, among other protections. Graber reasoned the Oregon law did not violate the pageant’s First Amendment free speech or freedom-of-association rights. She recommended returning the case to the district court for a formal test on whether the Oregon law applies.

The other circuit judges outweighed Graber. Vetting OPAA while avoiding constitutional issues, they held, could add years of litigation and “make a mockery” of the pageant’s First Amendment rights. They cited the Supreme Court cases Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. in 1995 and Boy Scouts of America v. Dale in 2002. Hurley held that a public accommodation law in Massachusetts could not compel St. Patrick’s Day organizers to accept a gay pride club in their parade. Dale held that the Boy Scouts of America could not be forced to endorse gay troop leaders. The Boy Scouts decided in 2015 to permit gay troop leaders but leave the decision to local groups.

On the pageant scene, Trump reversed course in 2012 and allowed a transgender competitor in his Miss Universe pageant’s qualifying round in Canada. Trump sold the pageant in 2015.

In 2021, an openly transgender contestant represented Nevada in the Miss USA competition. Last month, a Thai transgender business owner bought rights to the Miss Universe and Miss USA pageants for $20 million.

Christiana Holcomb, senior counsel for Alliance Defending Freedom, praised the 9th Circuit’s ruling in favor of the Miss United States of America pageant.

“I think this is a fantastic win for beauty pageants across the country because a pageant fundamentally communicates a message,” Holcomb said. “This particular pageant communicates one celebrating women. There are other types of pageants across the country that celebrate Miss Black USA or Miss Native American USA, so there are lots of different messages at different pageants … and I think this is a win for everyone.”