A panel on the United States Court of Appeals for the Ninth Circuit seemed to be channeling the lyrics of the musical Hamilton in noting that “Everything is legal in New Jersey.” The panel ruled against a transgender woman who brought a discrimination claim against a beauty pageant that allowed only “natural-born females” to compete. In a prior 2016 column, I discussed the racially discriminatory consideration of only “non-Whites” for the cast of the much-celebrated production. The majority opinion written by Judge Lawrence VanDyke noted the policy in upholding a policy that excluded trans women from the Miss United States of America pageant in Oregon.
In the 2016 column, I asked “if racial casting is permitted for plays, can other businesses claim that same right to discriminate as necessary to maintain an image or tradition?” That issue came up in the Oregon case of Anita Green.
Green has previously competed in beauty pageants and applied to enter the Miss United States of America pageant in Oregon, but was rejected as not qualifying as a “natural born female.” She filed a discrimination lawsuit in federal court under the Oregon Public Accommodations Act’s (“OPAA”) prohibition against discrimination on the basis of gender identity. Green appealed after the district court ruled against Green on the basis that the pageant’s First Amendment right to free expression and free association trumped the OPAA.
In a 58-page opinion, Judge VanDyke wrote that such limitations are an exercise of free speech (he also wrote a concurrence saying that it is also protected under the right to association). It was his lengthy discussion of Hamilton that caught the eye of many of us:
Miss United States of America and amici have offered an abundance of examples to this effect, but the most prominent may be Broadway’s smash-hit Hamilton. The musical utilizes hip-hop music and lyrics to detail the rise and fall of Founding Father Alexander Hamilton and has garnered widespread attention from the public and critics alike. Some of the musical’s popularity stemmed from its casting choices, namely the decision to cast the predominately white Founding Fathers with actors of color. That expressive decision was widely—though not universally6—applauded. And it’s just as widely recognized that this choice was central to the message of the musical itself. The “choice to enlist a mostly non-white cast … paints a picture of a more diverse nation whose history truly belongs to every one of her inhabitants.” Zack Krajnyak, Hamilton: Why the Cast is Mostly People of Color, Screenrant (Oct. 3, 2020), https://screenrant.com/hamilton-musical-castpeople-color-black-reasons/. And this message could be delivered only by excluding certain people from performing. As one commentator explained: Now, what would the musical look like if Alexander Hamilton wasn’t played by Lin-Manuel Miranda, and Aaron Burr wasn’t played by Leslie Odom, Jr, but instead the characters were played by two capable, talented white actors? The show would likely still be entertaining, but the context and the conversation would change. … It’s a completely different show. Zeba Blay, No, The ‘Hamilton’ Casting Call for ‘Non-White’ Actors Is Not Reverse Racism, HuffPost (Mar. 31, 2016, 12:30 PM), https://www.huffpost.com/entry/nothe-hamilton-casting-call-for-non-white-actors-is-not-reverseracism_n_56fd2c83e4b0daf53aeed9b9.
Saying that the casting rule was “integral” to the vision of the creators, VanDyke noted that “[h]ad some anti-discrimination statute been applied to Hamilton forcibly to include white actors the show simply would not be able to express the message it desired.”
He was joined by U.S. Circuit Judge Carlos T. Bea and the third judge, Susan P. Graber, dissented and said that the constitutional ruling was unnecessary under the doctrine of “constitutional avoidance.” Garber insisted that the court should have based its decision on the question of whether OPAA applied to Green’s claim. She also referenced Hamilton:
Choosing actors for a production of Hamilton, making a sequel to an 80s cinema classic, and assembling a troupe of Beyonce’s backup dancers are intensely selective processes that cannot be said to be open to the public as contemplated by the OPAA. It is highly unlikely that the OPAA would apply to the selection of performers for those roles.
Here is the opinion: Green v. Miss United States of America
55 thoughts on “Ninth Circuit Rules Against Transgender Woman in Beauty Pageant Competition . . . Citing the Musical Hamilton”
He’s a man.
Once a nation becomes stupid and depraved enough to let women vote and hold public office, people can no longer tell the difference between male and female anyway. Its all downhill from there.
Can they still compete in women’s sports?
And what!s great about your idea is that you start your show and invite anyone you wish to join…or not!
I would love to see an all white production of “Roots” for the same arguments of Hamilton. Then I’ll sit back with a bowl of popcorn and watch the progressive left go berserk. Hamilton is by the lefts own dogma “cultural appropriation”!
Problem with that is that Roots is fiction. Never happened.
I’m curious – don’t know if Prof Turley reads these – but do you think the 9th circuit is using this argument in order to further this claim of free speech for discrimination in order to provide universities and colleges an avenue to argue “free speech” in their efforts to use race in admissions?
I like this blog because it occasionally has interesting posts about legal issues like the issue(s) described in this post. As a non lawyer, even the comments are relevant (the ones not from the dozen different Anonymouses) This blog used to have all these types of posts.
Good morning boys and girls, and the rest of you in between.
Ain’t but two genders. North Carolina Lieutenant Governor Mark Robinson. You have to watch this:
It seems reality cannot be left alone. Some nitwit (or hives of like minded nitwits) comes along and feel the need to re-manufacture was was already made and evolved to its most useful self. If humans could just let things be we would be much better off.
I think, if you present female and compete under all the same beauty standards as a female I don’t see the problem. The competition is one of talent and appearance. She’s not gonna be wrestling the other contestants. If she looks bomb in a bikini so be it.