Victory! Ninth Circuit Upholds Women’s Free Speech Decision
The Court will not rehear Green v. Miss United States of America, protecting the First Amendment right to define women as female.
On Tuesday, March 14th, the United States Court of Appeals for the Ninth Circuit voted against rehearing the case of Green v. Miss United States of America (MUSA). This vote upheld last year’s decision to protect the pageant on First Amendment grounds from being compelled to admit males as "natural born females.”
WoLF submitted an amicus brief in this case in October of 2021 arguing in defense of free speech for women and against “gender identity” claims. In November of last year, the court ruled in favor of the pageant, dismissing the case on constitutional grounds consistent with WoLF’s arguments. The court even cites and quotes our brief in the decision’s concurring opinion.
Case Background: Green v. MUSA
While WoLF wouldn’t typically go out of our way to defend beauty pageants, the case of Green v. Miss United States of America brought radical feminists into the fray when the very right to single-sex spaces was challenged by trans-identified man Anita Green.
Green applied to participate in one of MUSA’s beauty pageants and was rejected on multiple grounds, including that he missed the application deadline and was not a “natural born woman,” as contestants are required to be. Green then sued the pageant 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 excluding men.
In his lawsuit against the pageant, Green argued that certain communities of people, like gay or indigenous peoples, should have the right to exclude those outside of their demographic. However, he argued that women should not have this right if they wish to exclude men. According to Green, women are not a historically marginalized group, and there is no difference between himself and any “cisgender female contestants.”
The district court rightfully dismissed Green’s case, and he appealed to the Ninth Circuit. WoLF submitted an amicus brief to the court, arguing the importance of free speech for women and their right to have female-only spaces and activities. Last year, the Ninth Circuit upheld the lower court’s dismissal of Green’s case, ruling in favor of the pageant.
The reasoning in both the majority and concurring opinions was consistent with WoLF’s radical feminist arguments, distinguishing them from the arguments presented by the pageant. While summarizing the diverse viewpoints on this issue, Judge Van Dyke highlighted one of WoLF’s positions: “the inclusion of men who identify as women in feminine spaces will undermine the hard-earned progress made by women in society." He further quoted WoLF’s brief, which stated:
"Green believes that femaleness is defined by femininity, which is a socially constructed role that by design keeps women in a subordinate, subservient position. That is what Green believes about women's natural state. Feminists have been fighting against this toxic system for generations."
The Court found that the First Amendment allows MUSA to express their recognition that womanhood is not a subjective identity, and to acknowledge this distinction when holding an all-female pageant organization that excludes men.
A Win for WoLF and Women!
The decision by the Ninth Circuit not to re-hear the case means that Green’s dismissal will stand, protecting women’s right to be a discrete class under the law, and paving the way to a future where single-sex spaces may one day be recognized as a constitutional right.
In the present, this sets an important legal precedent for the Ninth Circuit, which is the largest federal circuit in the United States. Headquartered in San Francisco, it includes California, Washington, Oregon, Montana, Idaho, Arizona, Alaska, Hawaii, and multiple US territories. Unless Green were to seek and win every step of an arduous escalation up to the Supreme Court—which is unlikely—women in these states now have the constitutional right to freely express that women are female, and men are not women. This is a huge win, and we are proud to have made an impact on this ground-breaking precedent.
With other important cases such as Chandler v. CDCR still ongoing in the Ninth Circuit, we are optimistic that Green v. MUSA will provide useful legal precedent to support our First Amendment claims.
Support Free Speech for Women
WoLF is proud to restore, protect, and advance the rights of women and girls at such a turbulent time in our country’s history. Our lawsuit filed on behalf of four incarcerated women, Chandler v. CDCR, exposes the egregious human rights violations caused by forcing women to be housed with violent men. We have also funded a lawsuit to hold medical practitioners accountable for performing unnecessary and disabling medical interventions on women to address “gender identity” beliefs. In other court cases, we have brought radical feminist arguments to light by filing amicus briefs, including recent and high-profile efforts to save women’s sports, uphold Title IX protections, and defend free speech.
The courtroom is a crucial battlefield in this fight to protect the civil rights of women and girls, including freedom of speech and association. WoLF is the only radical feminist organization leading impact litigation on this front, and your support is vital. Consider donating to help fund our legal advocacy work today!
