Green v. Miss U.S., LLC

Docket Number21-35228
Decision Date02 November 2022
Citation52 F.4th 773
Parties Anita Noelle GREEN, Plaintiff-Appellant, v. MISS UNITED STATES OF AMERICA, LLC, dba United States of America Pageants, a Nevada limited liability corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Shenoa Payne (argued), Shenoa Payne Attorney at Law PC, Portland, Oregon, for Plaintiff-Appellant.

Cody S. Barnett (argued), Alliance Defending Freedom, Lansdowne, Virginia; Bryan D. Neihart and Katherine L. Anderson, Alliance Defending Freedom, Scottsdale, Arizona; John J. Bursch, Alliance Defending Freedom, Washington, D.C.; John Kaempf, Kaempf Law Firm PC, Portland, Oregon; for Defendant-Appellee.

Jeffrey R. White and Amy L. Brogioli, American Association for Justice, Washington, D.C., for Amicus Curiae American Association for Justice.

Carson L. Whitehead, Assistant Attorney General; Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, Attorney General; Office of the Oregon Attorney General, Portland, Oregon; for Amicus Curiae State of Oregon.

Peter C. Renn and Nora Huppert, Lambda Legal Defense and Education Fund Inc., Los Angeles, California, for Amici Curiae Lambda Legal Defense and Education Fund, Transgender Legal Defense and Education Fund, and National Center for Lesbian Rights.

Christina Stephenson, Meyer Stephenson, Portland, Oregon; Phil Goldsmith, Law Office of Phil Goldsmith, Portland, Oregon; for Amicus Curiae Oregon Trial Lawyers Association.

Eugene Volokh ; Anastasia Thatcher, So-Young Kim, and Aaron Boudaie, Certified Law Students; First Amendment Clinic, UCLA School of Law, Los Angeles, California, for Amicus Curiae Libertarian Law Council and Institute for Free Speech.

Lauren R. Adams, Women's Liberation Front, Washington, D.C.; Lauren A. Bone, Women's Liberation Front, Glendale, Wisconsin; for Amicus Curiae Women's Liberation Front.

Anna St. John, Hamilton Lincoln Law Institute, Washington, D.C., for Amicus Curiae Pinnacle Peak Pictures.

Michael A. Cantrell, Assistant Solicitor General; Vincent M. Wagner, Deputy Solicitor General; Nicholas J. Bronni, Solicitor General; Leslie Rutledge, Attorney General; Office of the Arkansas Attorney General, Little Rock, Arkansas; Steve Marshall, Attorney General, Office of the Alabama Attorney General; Mark Brnovich, Attorney General, Office of the Arizona Attorney General; Lawrence G. Wasden, Attorney General, Office of the Idaho Attorney General; Jeff Landry, Attorney General, Office of the Louisiana Attorney General; Lynn Fitch, Attorney General, Office of the Mississippi Attorney General; Austin Knudsen, Attorney General, Office of the Montana Attorney General; Douglas J. Peterson, Attorney General, Office of the Nebraska Attorney General; John M. O'Connor, Attorney General, Office of the Oklahoma Attorney General; Alan Wilson, Attorney General, Office of the South Carolina Attorney General; Jason R. Ravnsborg, Attorney General, Office of the South Dakota Attorney General; Ken Paxton, Attorney General, Office of the Texas Attorney General; for Amici Curiae State of Arkansas, State of Alabama, State of Arizona, State of Idaho, State of Louisiana, State of Mississippi, State of Montana, State of Nebraska, State of Oklahoma, State of South Carolina, State of South Dakota, and State of Texas.

Aaron T. Martin, Martin Law & Mediation PLLC, Phoenix, Arizona; for Amici Curiae Past Pageant Participants.

Before: Susan P. Graber, Carlos T. Bea, and Lawrence VanDyke, Circuit Judges.

Opinion by Judge VanDyke ;

Concurrence by Judge VanDyke ;

Dissent by Judge Graber


VANDYKE, Circuit Judge:


Anita Green, who self-identifies as "an openly transgender female," sued the Miss United States of America pageant, alleging that the Pageant's "natural born female" eligibility requirement violates the Oregon Public Accommodations Act ("OPAA"). The district court granted the Pageant's motion for summary judgment, holding that the First Amendment protects the Pageant's expressive association rights to exclude a person who would impact the group's ability to express its views. We conclude that the district court was correct to grant the Pageant's motion for summary judgment, but reach this conclusion not under the First Amendment's protection of freedom of association but rather under the First Amendment's protection against compelled speech.


Defendant Miss United States of America, LLC, is a Nevada corporation that operates beauty pageants throughout the United States. This includes an annual national pageant, which is livestreamed and performed before a live audience. Contestants in the national pageant compete in multiple rounds of competition. The early rounds require contestants to answer questions from the judges, perform on stage in patriotic outfits, and dance to a choreographed routine while wearing a sash that displays the Pageant's logo. The top-rated performers advance to the semi-finals, where they again compete in similar competitions and are judged for traits such as "poise" and "grace." The top three semi-finalists continue to the final round. The final round includes onstage questions, and in the past has included prompts such as "[w]hat will you do to ... promote your platform on a national level?" and "[w]hy is the image you portray on your personal social media accounts important as a titleholder?" The top-scoring contestant is crowned Miss United States of America. The Pageant also promotes these contestants—especially the winner—on its own social media accounts. Moreover, winning contestants receive direct economic benefits in the form of a "prize package" that includes, among other items, gift certificates, beauty products, and clothing.

Like essentially all beauty pageants, Miss United States of America has eligibility requirements for who can compete. See Hilary Levey Friedman, Here She Is: The Complicated Reign of the Beauty Pageant in America 6 (2020) ("[B]eauty pageants are exclusionary in a number of dimensions ...."). The "Miss" division, which Green applied to, requires among other things that contestants be "between 18–28 years of age," have "never posed nude in film or print media," and not be married or have given birth. Finally, and most relevant to our case, contestants must also be "a natural born female."

The Pageant enforces these requirements. For example, one applicant was rejected for having posed nude. Another was rejected for including "photographs and language which were inconsistent with USOA Pageants' message." The Pageant explained that those photographs and language were "inconsistent with [the Pageant's] vision and message we wish to associate with and does not coincide with United States of America Pageants' efforts to produce community role models."

As explained in the briefing, Plaintiff Anita Green claims to have been "assigned the gender of male at birth," but "came out as transgender at the age of 17." Green later took medication to alter hormone levels and underwent cosmetic surgery in which Green's male anatomy was reconstructed to appear as female anatomy.

Green then began competing in female beauty pageants. These included back-to-back entrances in the Miss Montana USA pageant, which ended when Green was no longer eligible because of that pageant's age requirement. Green then moved to Oregon and continued competing, including in the Miss Earth pageants in Oregon and Nevada.1

In late 2018, Green and Tanice Smith—Miss United States of America's national director—began exchanging messages on Facebook. The two began discussing Miss United States of America's Oregon pageant. Smith explained that the 2018 Oregon pageant had already occurred, but that Green could either wait until next year's pageant or try to represent another state at the national pageant.

After Smith sent Miss United States of America's rules, Green wrote "[y]ou know I'm transgender, right?" and "[y]our rules seem to discriminate against transgender women." Smith responded that she did not know that Green identified as transgender, and explained that Miss United States of America is a "natural pageant," implicitly referencing the Pageant's "natural born female" rule. After informing Green that the Pageant did not anticipate changing this eligibility requirement, Smith offered to help Green find "a pageant you would qualify for." Green responded by writing "[w]ell, I'll talk to my attorney about this then because discrimination is unacceptable."

Notwithstanding the Pageant's eligibility requirements, Green applied to compete.

After the Pageant denied Green's application, Green sued. Green alleged that the Pageant violated the OPAA by discriminating based on gender identity. See Or. Rev. Stat. § 659A.403.2

The Pageant moved to dismiss, arguing in part that the application of OPAA violated the Pageant's freedom of speech and freedom of association rights under the First Amendment. After oral argument, the district court converted the motion to dismiss into a motion for summary judgment so that the parties could "engage in limited discovery and ... submit supplemental briefing on the question of whether Miss USA is an ‘expressive association’ " to evaluate the Pageant's freedom of association claim. After the subsequent filings, the district court granted the Pageant's motion for summary judgment, holding that the Pageant had a First Amendment freedom of association right to exclude Green.

The district court denied the Pageant's freedom of speech claim before ruling on its freedom of association claim. In rejecting the Pageant's speech claim, the district court first concluded that Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston , 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), did not control the outcome of this case. The court explained that the state court in Hurley "misapplied the public accommodations law in a way that transformed it from a conduct-regulating, content-neutral law that did not target speech into a...

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