Citing Hamilton Casting In Its Decision About The Exclusion Of A Transgender Woman From The Oregon Beauty Pageant

Transgender Woman From The Oregon Beauty Pageant: Against a beauty contest that only let “natural-born females” compete, a transgender woman’s discrimination lawsuit was dismissed by a conservative panel majority of a federal appeals court. The Miss United States of America pageant can decide to eliminate contestants who do not fit its vision of an “ideal woman,” much as Lin-Manuel Miranda can opt to cast only Black performers for the majority of roles in his Broadway production Hamilton.

Transgender lady Anita Green has participated in several beauty pageants, including Miss Earth and Miss Montana. Green attempted to compete in the Miss United States of America pageant in Oregon but was disqualified because the competition is limited to “natural-born girls.”

The pageant was allegedly in violation of the Oregon Public Accommodations Act’s (“OPAA”) ban on discrimination based on gender identity, according to Green, who later filed a discrimination claim in federal court. The district court rejected Green’s appeal on the grounds that the OPAA was superseded by the pageant’s First Amendment rights to free speech and association.

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Green filed an appeal, and on Wednesday, a panel of the Ninth Circuit U.S. Court of Appeals ruled 2–1 in Green’s favour. U.S. Circuit Judge Lawrence VanDyke provided a lengthy and in-depth comparison to the acclaimed Broadway show Hamilton in a 58-page judgement.

According to VanDyke, a Donald Trump appointee, “the musical uses hip-hop music and lyrics to portray the rise and fall of Founding Father Alexander Hamilton and has received considerable attention from the public and critics alike.” VanDyke stated that “its casting choices, particularly the option to depict the predominantly white Founding Fathers with actors of colour,” were responsible for “some of the musical’s appeal.”

VanDyke stated that Miranda’s choice of actors “was wideβ€”though not universallyβ€”applauded” and cited a comment from a student at the University of Michigan who questioned the choice of actors’ underlying political message. The Pulitzer Prize-winning show’s casting, according to blogger Camille Moore, fell short of Miranda’s goal to portray “America now” because it did not take into account the fact that prominent people are still typically wealthy, white men.

The judge went on to say that the mostly non-white cast of Hamilton makes a significant historical point about American culture that is “integral” to the show’s theme.

Transgender Woman From The Oregon Beauty Pageant
Transgender Woman From The Oregon Beauty Pageant

VanDyke claimed that if Hamilton had been forced to use white actors in order to comply with anti-discrimination law, it would be unable to convey its intended message. Just such a speaker’s “autonomy to pick the content of his own message” is protected by the First Amendment.

Hamilton was not VanDyke’s only comparison; the judge also compared the exclusion of transgender women from the pageant to the exclusion of a local gay and lesbian group and performers from the Super Bowl halftime show from a private St. Patrick’s Day parade.

Similar to how requiring the Pageant to allow Green as a participant would substantially change the Pageant’s expressive message in a way that would be a direct First Amendment violation, VanDyke argued. The protected message of the pageant was further clarified by the judge, who stated: “It does not believe that biological males who identify as female are women.”

Green’s “insistence that ‘[t]here is no meaningful difference between [her] and any of [her] cisgender female candidates,'” according to VanDyke, was dismissed as unimportant because it was “exactly the opposite statement from the one that the Pageant wants to express.” Whether or if there are “discernible distinctions” between Green and cisgender women, the pageant has the right to remain committed to its message about femininity, according to VanDyke.

Since Hamilton’s Broadway debut in 2015, it has not only drawn nearly constant attention from audiences but has also become a shorthand for both Treasury Secretary Alexander Hamilton’s ardent support of federalism and for contemporary progressive values, such as Lin-Manuel Miranda’s public statements on Puerto Rico’s debt crisis.

Justice of the Supreme Court Clarence Thomas, for instance, has stated on numerous occasions in recent years that he is not a fan of either Alexander Hamilton or the musical Hamilton. During oral arguments in 2020 regarding disloyal voters, Justice Elena Kagan also praised the programme. The cast of Hamilton addressed Mike Pence from the stage in 2016, while he was still the Vice President-elect, urging him to fight for “American ideals” for a “diverse America.”

More recently, the musical was in the news after a Texas church apologised publicly and promised to pay damages for staging an illegal performance with anti-LGBTQ and Christian themes that conflicted with the production’s original message of inclusivity.

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Following his lengthy majority judgement, VanDyke also released his own concurrence in which he made it clear that in addition to supporting a ruling in favour of the pageant based on free speech, he would also support such a ruling based on the First Amendment right to free association. Given that it was superfluous in light of the free speech verdict, the majority decision, which was joined by George W. Bush appointee and U.S. Circuit Judge Carlos T. Bea, did not address the issue of free association.

Bill Clinton appointment and U.S. Circuit Judge Susan P. Graber criticised the majority in her dissent for its “radical departure” from “well-established” legal principles. Garber argued that the court should have first established whether OPAA even related to Green’s claim before delving into First Amendment analysis under the principle of “constitutional avoidance.”

Graber reminded her fellow justices that constitutional avoidance is and has always been a fundamental judicial norm and chastised the majority for its “insistence in reaching a superfluous constitutional question.”

Graber then attacked the majority’s decision logically using VanDyke’s examples, stating that given the nature of performances, a strong case could be made that the OPAA does not even apply to beauty pageants. Therefore, rather than supporting the majority’s decision, VanDyke’s Hamilton parallel undermines it. Graber penned:

Making a sequel to an 80s hit, casting players for a production of Hamilton, and assembling Beyonce’s backup dancers are all highly selective processes that cannot be considered to be public as the OPAA intends. The OPAA would probably not apply to the process of choosing performers for those roles.

Without the requirement for a constitutional review, Green’s claim would have been rejected on a statutory basis if OPAA did not apply to the contest.

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