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
We have reached a profound level of absurdity as a culture when private promotors need to rely on the 1st Amendment to defend limiting beauty pageants to women.
Would it be permissible to host a Miss Black America Pageant? How about a Miss Hispanic America? How about a Miss White America? Let’s waste more resources on these idiotic fights.
There IS a Miss Black America pagent and there IS a Miss US Latina pagent. It’s okay because it is all about the color of the skin, and NOT the content of their characters. It would be PREJUDICED to have a Miss White America according to these same people.
https://www.missblackamerica.com/
https://www.missuslatina.com/
This claim is moot.
The right to private property is superior; the owner of private property has the power to discriminate, the power to “claim and exercise” dominion.
In a public case, equity, that being the complete absence of bias or favoritism, including absolutely biased and favorable affirmative action, racial quotas, and compulsory and unconstitutional, discriminatory “non-discrimination” laws, and unfair “fair housing” laws, which violate and deny the right to private property, must prevail.
The 9th Circuit et al. must be impeached and convicted for fraud, corruption, abuse of power and usurpation of power.
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“This is not a democracy. Everybody doesn’t get to do what they want to do. Everybody doesn’t get to do what they feel like doing.”
– Nick Saban
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“It’s the [Constitution], stupid!”
– James Carville
Biologists classify mammals as male or female. There is no angst over what the mammal feels inside, prefers as a favorite color, or behavior in the group.
Humans are mammals. They are biologically XX, XY, or the very rare intersex. The overwhelming majority of people who identify as transgender do not have conditions like Androgen Insensitivity Syndrome or Klinefelter, and even then, it is still usually possible to classify them biologically as one sex.
It’s like claiming that it’s impossible to describe humans as tailless mammals, because around 40 people have been documented in medical literature as having been born with a tail, or tail-like caudal appendage.
The Left has trapped itself in a circular argument, in which it claims anyone can be a woman, but the only definition of a woman is feeling like a woman. It’s nonsensical, yet a surprising number of academics have fallen into this logical fallacy.
We don’t encourage people with Body Integrity Disorder to have a surgeon amputate their healthy limbs, simply because they feel like they are supposed to be an amputee. We don’t encourage ambulatory people to use a wheelchair and benefit from ADA accommodations, simply because they feel like they are supposed to use it. We don’t silence and punish black people who criticize those who allegedly suffer from racial dysphoria, such as Rachel Dolezal, as not really being black.
Are you going to force a black baker to custom bake Rachel Dolezal a cake that’s white on the outside, dark chocolate on the inside, with the message, “Congratulations on Transitioning From White to Black, Your Real Race!” Are you going to punish a black woman who complains about a white woman receiving scholarships, grants, jobs, or university positions intended for a black person, because she claims she really is black?
The Left needs to stop trying to punish or silence women who speak out about biological men in their locker rooms, showers, battered women’s shelters, sports divisions, beauty pageants, and women of the year awards.
My gender is not a state of mind. My gender’s meaning is being replaced, replaced with minstrel shows that monetize women’s stereotypes.
A beauty pageant discriminates against unattractive people in the selection process. It discriminates against men, because it is a female beauty pageant. It discriminates against older women because of the age limit. It discriminates against women who will not follow the rules on behavior, naked photography or videos, crime, and drug use. Each state discriminates against women from other states in its entry requirements. US beauty pageants discriminate against residents of other countries. You have to actually reside in the US to compete for the US. The talent portion discriminates against the untalented. The spoken portion discriminates against those who are poor public speakers.
Judgement is discrimination.
“Judgement is discrimination.”
Well said.
The sad part is that a transperson would be replacing a female contestant who had worked hard to keep her body trim, be involved in the community and increase her level of talent in her other endeavors. So much for equal opportunity for women. All of her efforts thrown away by a man confused about his genitalia. Don’t forget those in favor of robbing her of her opportunity are on the ballot and their party affiliation is not designated by the letter “R”.
The casting of hamilton is racist, and it is also protected by the first amendment.
Long ago we should have gotten rid of unconstitutional laws regarding racism outside of govenrment.
There is no bright line means for courts and government and the law to distinguish between one form of racial discrimination and another.
Government conversly has no first amendment rights and therefore can be bared from discriminating on the basis of race.
If you are aware of some offensive form of discrimination outside of government – raise a stink, boycott, …
Boycott Hamilton. Boycott the Oregon Miss America.
Use whatever private free market leverage you wish to express your disfavor.
But leave government and the courts out of this.
“ If you are aware of some offensive form of discrimination outside of government – raise a stink, boycott, …
Boycott Hamilton. Boycott the Oregon Miss America.
Use whatever private free market leverage you wish to express your disfavor.”
So…cancel culture? Because that is the basis of cancel culture. The right used that tactic long before it was known as “cancel culture”.
Government does have free speech rights contrary to your claim.
Under the government speech doctrine, the government has its own rights as speaker, immune from free speech challenges. It can assert its own ideas and messages without being subject to First Amendment claims of viewpoint discrimination.
You seem to think that because I say that you are allowed to do something that it is a good idea.
I have ZERO problems with the concept of “Cancel Culture”.
That does not mean that it is not likely to blow up in the face of those doing it.
Free market means to resolve your personal issues – do not always work.
Nor should they.
I expect that if you boycott Miss America because they will not allow pedophiles to participate – that it is YOU that will likely be the one whose reputation is destroyed.
If you want to try to “cancel” others – go for it. But do not whine when YOU end up canceled.
The problem is NOT the tactic. It is the issues that you choose.
If the right seeks to destroy your reputation or boycott your business – because you are a pedophile – I expect them to succeed.
If the left tries to destroy your reputation or boycott your business – because you will not hire a pedophile – I expect them not just to fail, but to discredit themselves.
The left has been successful to this point in manipulating businesses. But increasingly Businesses are LEARNING that taking stands on politics are DANGEROUS to business.
Disney has a brand established over almost a century. Taking a leading stand on sexualizing children is severely damaging that brand.
Government has NO RIGHTS AT ALL. Rights belong to PEOPLE,
Government has POWERS – its ability to speaks is only as necessary to perform those powers.
Again Governmnet does not have RIGHTS.
“Under the government speech doctrine, the government has its own rights as speaker, immune from free speech challenges. It can assert its own ideas and messages without being subject to First Amendment claims of viewpoint discrimination.”
False. And obviously so.
Political speech is the most protected form of speech. Yet those in govenrment must be incredibly careful when speaking for government that the do NOT speak politically – or they violate the Hatch Act.
Several Trump appointees were found in violation of the Hatch act, and a whole raft of Biden appointees have either been found in violation or face hatch act challenges.
All speech within government must be necessary with respect to a lawful task delegated to government.
The court has been NARROWING what you call the “government speech doctrine” for a long time.
It is unconstitutional.
Nowhere in the constitution is speech identified as a power of government.
Government speech is therefore ONLY what is necescary to accomplish other legitimate government powers (necescary and proper clause).
Please do not confuse left (or sometimes right) wing idiocy – for the actual constitution.
Especially expansive reads of it.
Transgenderism is a new social contagion made possible by social media. It is a type of mental illness and should be treated as such, not elevated to the status of a human right especially if other people have to pay for it. It involves male and female genital mutilation and should be banned just as we ban Muslim female genital mutilation.
I’ll see your “Hamilton” reference and raise you a “Flower Drum Song”!
Do you know the real reason that the 9th Circuit ruled the way it did?
Because the transgender slot was allocated for Richard “Rachel” Levine.
A man would in a dress will ALWAYS be a man! Science Deniers.
CHROMOSOMES
test the DNA…believe the science.
If you dress up as a gorilla….doesn’t make you a gorilla.
As far as the trans movement is concerned, it’s medically nonsense. There is too much secondary gain at this point in time to remove it’s scourge from medicine and society. If you stop the participation by males in women’s sports and make the necessary medical decision of saying that there is no medical support for these actions, and there is not, and stop medicaid and insurance funding for these procedures and treatments, this will essentially disappear. The panel in health and human services determined there was basically no difference in interventional care vs psychiatric and psychological care in the treatment of gender dysphoria. This was not just a decision of Florida Medicaid. The big difference is in how much money the medical industry will make off hormonal manipulation and surgical mutilation of these unfortunate people who will really need psychological care for the rest of their lives when they realize what they and others have done to them.
Hamilton was pace setting in it’s presentation and casting and I agree with the ruling. But Hollywood has previously been down this road with the THE WIZ with basically an all black cast many years ago but not with quite the impact of Hamilton.
An interesting ruling. However, I would prefer a ruling that just stated the simple scientific, moral, historical and cultural reality, a transgender women is a transgender women, not a women. I women is an adult biological female. A biological male is not, and can never become a female.
Bingo – You’ve hit the nail right on the head. This isn’t about discrimination, it is about an infection of thought that needs to be irradicated by true social, legal, and scientific iteration of the terms male and female.
While I understand where you are coming from, I honestly think the court took a step in the right direction.
The best resolution is to get the courts OUT of the business of trying to figure out what private discrimination is allowed and what is not.
Leave this so markets. I think the Hamilton analogy is excellent – except for pretending that hamilton casting was not racist.
It obviously was. But it is not the courts duty to decide what racism is acceptable and what is not.
It is up to the rest of us.
I understand and applaud the decision of Hamilton producers to use mostly minority actors.
That is an expressive message, it is also racist. I can decide whether that is a problem form me – at the ticket office.
Had they chosen an all white case – I could make the same decision at the same place. Maybe I would make that decision differently – but that is up to me.
MIss American can allow MTF trans or not – up to them.
And I can decide whether the pagent interests me.
And we get our courts out of sorting out private matters and trying to distinguish good discrimination from bad.
This will not end the issue – it will still be before the courts when government is involved – such as public schools.
The best answer would be to eliminate public schools.
But we are not doing that, so courts will have to make decisions that are really none of their business.
You are correct, the only thing needs be done by the legislatures of each state, is to define male and female as its definition. End the farce of transgenderism, that is where we go astray by even giving this faculty lounge concept breathing room.
It is not the business of the courts to address that – outside of discrimination by government.
The fact that an MTF transgendered person is not a biological woman is a reason for excluding them from Mis American – if the pagent choses.
Or including them.
The point which this decision mostly gets correct is that these issue should be resolved outside of courts.
As long as there are anti-discrimination laws the courts have to be involved. When an individual believes she/he has been discriminated against in violation of the law the courts are required to resolve the issue regardless if the private party IS violating the law or not. All are bound by the law. The right to petition the government to redress grievances doesn’t end because an individual identifies as transgendered.
“As long as there are anti-discrimination laws the courts have to be involved.”
Those laws are both very limited (with respect to private discrimination) and unconstitutional.
The role of the courts is to adjudicate claims of discrimination by government.
The constitution does not and can not limit the rights of individuals.
The constitution is about the powers and limits of government.
” When an individual believes she/he has been discriminated against in violation of the law the courts are required to resolve the issue regardless if the private party IS violating the law or not.”
1). There is very little private discrimination that is ACTUALLY illegal.
2). Absent complete stupidity on the part of defendants private illegal discrimination is almost never proveable.
3). Courts exist to adjudicate
Criminal complaints.
Contractual disputes.
Torts.
Those are the only legitimate roles of courts with respect to non-government actors.
“All are bound by the law.”
The law is bound by the constitution – there is not a single part of the constitution that empowers government to restrict private actors right to discriminate.
“The right to petition the government to redress grievances doesn’t end because an individual identifies as transgendered.”
The right to petition government is about GOVERNMENT – as with January 6th.
You are free to petition government at the Capitol when you beleive an election was stolen. You are not required to prove you are right to any standard, to excercise your right to petition government.
Conversely beauty pagents are NOT government. They OBVIOUSLY discriminate. The discriminate against those who are not talented, those who are not beautiful and those who are not intelligent. They are free to discriminate against people with penis’s or without. They are free to discriminate against people with two x chromosomes or without.
None of this is the legitimate business of the courts.
If a beauty pagent requires applicants to be between 5’4″ and 5’8″ they are free to have that requirement.
If you wish to have a beauty pagent that allows MTF Trans – go ahead.
All we are slowly seeing is that the left has kept expanding unconstitutional private discrimination laws such that the absurdity and unconstitutionality of ALL discrimination laws is more and more self evident.
Currently the the US supreme court appears poised to strike down affirmative action.
But the constitutional issues here have been simple from the start.
Private actors may discriminate based on race – both because the constitution does not allow for laws barring any form of discrimination by provate actors, and because constraining private discrimination is stupid and undermines confidence in the law.
It is stupid – because markets will inevitably punish those who make poor choices – on whatever basis, and discrimination is just the loaded term for choice.
It is stupid because private actors who discriminate need never get caught. And encouraging people to violate the law, undermines the rule of law.
If you do not like the rules of the miss america orgainiztion – petition THEM, boycott THEM, start your own pagent.
there is NO TRANS! You are man not matter what they cut off or add on!
You are Woman no matter the mutilation!
Test the DNA….believe the science!
Gender is sex-correlated attributes (e.g. sexual orientation): masculine and feminine. Trans- refers to a state or process of divergence from normal. This doesn’t affect all transgender individuals. The diverse follies of political congruence (“=”), diversity [dogma] (e.g. racism, sexism, ageism), and Pro-Choice ethical religion. One step forward, two steps backward.
democrat world…10 steps BACK for everyone!
Dear Prof Turley,
As far as I can tell there is no such thing as a ‘natural born female’. It takes a lot of practice and skill to be a female. .. although, sometimes, they are so damn subtle it’s hard to tell.
Learned behavior is a powerful thing. “The recognition that human behaviour is learned is basic to the study and understanding of behaviour. It is a discovery comparable in importance to the germ theory of disease in medicine” *noted French cultural anthropologist Emile Durkheim
>”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?””
Sure, why not. I’m thinking of redoing ‘Gone With The Wind’ .. . casting Beyonce’ as Scarlet.
dgsnowden: Nice try, but leaving out the entire aspect of genetics to prop up your cultural reductionist argument won’t fly.
GioCon: By any objective standard, ‘genetics’/biology has ever been subordinate to ‘culture’, thought and habit… all ‘learned behavior’. By which I mean society.
‘Reputation, reputation, reputation. Oh, I have lost my reputation and what remains is bestial’ ~ Marcus Aurilius
*for example, do you believe homosexuality (or heterosexuality for that matter) is a ‘choice’ .. . or strictly a matter of biology and genetics?
What does hetero- or homosexuallity – to do with ones sex?
What does genetics/biology have to do with ones sex?
If it is a matter of choice – people are free to discriminate against it.
If it is not, indoctrination is not necescary.
Obviously, I’ve always considered human sexuality a choice .. . mainly because I’ve made so many bad ones*.
Always thought ‘Slick Willy’ Clinton’s ‘Don’t Ask Don’t Tell’ policy surprisingly fair and reasonable.
*I was living with a female panther in a cave up on the North Fork .. . but she never did get used to me.
“As far as I can tell there is no such thing as a ‘natural born female’.” What scientific evidence do you have for such a claim – (faculty lounge discussions are not acceptible proof of anything but bloviating)?
so if you put a gorilla suit on…you are a Gorilla….in Democrat world?
You Can’t CHANGE YOUR DNA…no matter your mental delusion!
Now the legal eagles here can square the legal tenet to forcing an artist to deliver a message they disagree with, discriminating to racial balance a classroom, or write a message on a cake.
All this proves, judges ignore the constitution in order to advance their personal view of society. All this stuff should never see the inside of lawyers office, let alone a courtroom.
The pagent, like Hamilton, is a private enterprise that is free to choose its design. It would have been good for the court to recognize this important distinction. When state universities begin presenting their school versions of Hamilton, I’m sure this issue will again be brought before the courts. The rules are different for the state and for private companies when it comes to these things but that’s something for another day.
If the Liberal Ninth Circuit rules against a left wing radical idea of a Transgender person participating in a beauty contest then they real lose and no way will Supreme Court rule any definetly. Usually Nonth Circuit is very open minded and lately, in some rulings they have ruled against the Left Wing Social Justice crowd.
Social justice (e.g. flat-Earth) anywhere is injustice everywhere.