WoLF Submits Amicus Brief on Free Expression Case
UPDATE - Nov. 3, 2022 - Victory! The Ninth Circuit Court of Appeals expanded the First Amendment’s protection against compelled speech, to include a single-sex beauty pageant being forced to say that men can be women.
In the case of Green v. MUSA, the ruling protected the Miss United States of America pageant from being compelled to admit males as "natural born females,” regardless of the plaintiff’s argument that state law would have otherwise compelled the admittance of men with a “gender identity” of woman.
The court’s ruling is consistent with WoLF’s legal arguments from the brief and with our overall position and strategy on women’s free speech. You can read the complete 106-page opinion here. See our original post, below.
On October 29, 2021, the Women’s Liberation Front (WoLF) submitted an amicus brief in the case of Anita Noelle Green v. Miss United States of America, in which a trans-identified male is suing over his ineligibility for a female-only beauty pageant in the state of Oregon. You can read the entire brief here.
WoLF’s brief has three main arguments:
Women are a historically marginalized group for whom free expression and association are particularly important.
Gender identity ideology is unscientific and harmful to women. The ideology is misogynistic, homophobic (and lesbophobic), and incoherent.
Anita Green is a man and his arguments about sex and gender are false.
The courtroom is a crucial battlefield in this fight to protect the civil rights of women and girls, including freedom of association, and WoLF will continue to submit amicus briefs and pursue impact litigation. Your support is vital; please explore our site for more information about our ongoing work, to find out how you can join the fight, or for shareable resources.
Read more about the Green case and WoLF’s amicus brief:
Written by Victoria, WoLF Volunteer
The Background
While a beauty pageant may not be a common setting for a feminist fight, the relatively young pageant association Miss United States of America (MUSA) has found itself in one. When a trans-identified male, going by the name Anita Green, applied to compete in MUSA’s Oregon pageant, his application was denied on multiple bases, including having missed the deadline and Green not being a “natural biological woman” (female sex is a requirement of the MUSA pageants). Following his rejection, he sued the MUSA pageant association under the Oregon Public Accommodations Act which establishes “gender identity,” among other characteristics, as a protected class in the state. Notably, Green, who had aged out of the Miss Universe Pageant system, did not choose to sue his former pageant for age discrimination. He focused only on MUSA for their exclusion of all male people.
On April 8, 2021, United States District Judge Michael Mosman granted a summary judgment on behalf of Miss United States of America. The court stated in its opinion that MUSA met the “relatively low bar” to be considered an expressive organization, rather than a purely commercial one, and that on that basis MUSA’s right to free association “outweighs Oregon’s interest in preventing gender identity discrimination.” Purely commercial organizations, such as restaurants or clothing stores, are subject to public accommodations laws (meaning they aren’t allowed to discriminate) in all states whereas expressive associations, such as political or activist groups, are able to limit their membership.
Green’s Appeal
On August 23, 2021, Green filed an appeal that is currently pending before the Court of Appeals for the Ninth Circuit. In the appeal, Green challenges the lower court’s decision to classify MUSA as an expressive organization. He argues that MUSA participants are separate individuals who compete against each other rather than members of a group. He also argues that because MUSA participates in commercial ventures, it is a purely commercial operation subject to the Oregon Public Accommodations Act. It was not lost on the MUSA legal team when filing their response, that Green, who participated in the Miss Universe Pageant system, said publicly in glowing terms that pageants are “much more than just competing on a stage with other [sic] women.” His public praise of pageants, which vary in theme but have largely the same commercial format, undermines his own legal arguments.
Using an older case, Roberts v U.S. Jaycees, Green’s appeal goes on to argue that inclusion of trans-identified males will not take away from the pageant’s stated: “focus on cisgender [ ] women.” Elsewhere, he argues that pageants with different themes, for instance, a gay pageant or an indigenous women’s pageant, would be harmed by admitting people who do not belong to those respective categories. He justifies his own admission into the MUSA pageant by arguing that “there is no meaningful distinction between plaintiff and any of defendant’s cisgender [sic] female contestants” but that “admitting men into the pageant would interfere with” the pageant’s interests. Green’s argument that he is indistinguishable from a woman is undermined by his assertion that discrimination against trans-identified males is endemic.
So women have the right to exclude people until the people they are excluding are male, and women are completely indistinct from men until those men put on dresses, at which point it’s the men who face immense discrimination (over and above that which women face). Despite his arguments being farcical on their face, having been undermined by other arguments within his own appeal and by his own public statements, the court has yet to issue a ruling. Given the current political and legal climate, we can only hold our breaths and wait to see how much further women’s rights may be eroded.
Our Amicus Brief
Fiercely dedicated to free speech, even when it makes for strange legal bedfellows, WoLF has taken this opportunity to file an amicus brief with the Ninth Circuit in support of MUSA’s right to exclude Green and all males from their association. WoLF’s brief reminds the court of the longstanding discrimination faced by women, explains the unscientific nature of gender identity ideology, and argues that the inclusion of Green in a predominantly female space renders the participants less safe.
“Green’s claims that women are not a historically marginalized group and that he is a biological female are facially absurd,” says WoLF Legal Director Lauren Adams to the Ninth Circuit. WoLF’s brief goes on to state, “He [...] uses civil rights-era case law such as Heart of Atlanta to bolster his case, demonstrating that Green does not see women as a historically marginalized group [...]. Instead, he views the exclusion of men from female-only spaces as something akin to white supremacy.” Heart of Atlanta, a Supreme Court case from the Jim Crow era deep south, cemented the power of the federal government to enforce the Civil Rights Act of 1964 including requiring public accommodations to serve people without regard to their race. Green’s citation of the case implies his belief that men not being served by beauty pageants is equivalent to black Americans being denied access to the local lunch counter. Absurd, indeed.
In Green’s view not only is there no “meaningful distinction” between himself and his would-be competitors in the pageant, but his performance of stereotypical femininity has rendered him medically and legally “female.” Readers will know that this unscientific belief is proliferating amongst those who endorse gender identity ideology. WoLF, in its amicus brief, establishes for the court that, “Girls and women are female whether or not they look or act in a stereotypically feminine manner,” and that “to compel belief in a quasi-spiritual concept like this, to the exclusion of objective reality about sex, is unconstitutional, tyrannical, and Orwellian.” Citing no less than the World Health Association and the National Institute of Health in claiming that there is a difference between gender identity and sex, WoLF hopes to get a ruling from the Ninth Circuit publicly acknowledging the immutability of sex and its difference from gender identity.
However, should the court rule in Green’s favor and endorse gender identity and sex as indistinct legal categories, WoLF declares such a judgment “would effectively mean that all women’s pageants must also admit males, even if they identify as men.” The brief reads, “Taken to its logical conclusion, such a decision threatens any association or services intended for women, which are a historically marginalized group in need of services and associations specifically for them, to the exclusion of males.” Incidents like those at Wi Spa, in which a trans-identified male sex offender exposed his genitals to women and girls, show how dangerous the forced inclusion of males into private spaces can be. In submitting this brief, WoLF aims to sway the court to protect women from unwanted intrusion.
Ultimately, WoLF believes that the protection of free speech and free association laws, established by the First Amendment, is of the utmost importance to the security and expansion of women’s rights. And so this feminist organization finds itself lending support to, of all causes, a beauty pageant. In practice, the litigious Green’s decision to infringe on the rights of MUSA to free association clearly burdens womens’ right to free association everywhere.
OTHER RESOURCES
WOLF SUBMITS AMICUS BRIEF IN IDAHO FAIRNESS IN WOMEN’S SPORTS CASE
Hecox v Little sought to overturn a state law requiring students to compete in athletics based on their sex.
KEY COURT FILINGS AND PETITIONS
WoLF is fighting to protect women’s rights where it matters: in the courts.
Would you like to sustain our feminist work?
Your tax-deductible gift enables WoLF to continue its bill tracking, submission of amicus briefs, public records requests, and public testimony, as well as litigation efforts. We thank you in advance!
