The Miss America Gender Identity Controversy

To advance in competition, Miss North Florida 2025, Kayleigh Bush, was told to sign a contract that forced her to compete against men. She refused.

“Miss” America and “Miss” Florida advertise as women-only competitions, which is misleading and may violate FL law. This is wrong! pic.twitter.com/UJoAzyUOl1

— Attorney General James Uthmeier (@AGJamesUthmeier) April 10, 2026

The Florida AG sent a letter to the Miss America organization objecting to its policies that appeared to allow contestants who had “fully completed sex reassignment surgery via vaginoplasty (from male to female) with supporting medical documentation and records.” (The Miss America organization claims this was intended all along to cover only women born with XX chromosomes but with an intersex condition, who had gotten the condition surgically altered; it has since changed the policy language to so indicate.)

Now beauty pageants, like theatrical productions, have a First Amendment right to choose who competes in them, including based on sex, gender identity, marital status (Miss), citizenship status (America), age, race or ethnicity (as is the case with some such competitions, though not Miss America itself), and more. Green v. Miss United States of America (9th Cir. 2022) so recognized, in upholding a pageant’s requirement that participants be “natural born females”:

As with theater, cinema, or the Super Bowl halftime show, beauty pageants combine speech with live performances such as music and dancing to express a message. And while the content of that message varies from pageant to pageant, it is commonly understood that beauty pageants are generally designed to express the “ideal vision of American womanhood.” In doing so, pageants “provide communities with the opportunity to articulate the norms of appropriate femininity both for themselves and for spectators alike.”

Equally important to this case is understanding the method by which the Pageant expresses its view of womanhood. Given a pageant’s competitive and performative structure, it is clear that who competes and succeeds in a pageant is how the pageant speaks. Put differently, the Pageant’s message cannot be divorced from the Pageant’s selection and evaluation of contestants. This interdependent dynamic between medium and message is well-established and well-protected in our caselaw….

I think that’s right, for the reasons given in an amicus brief I filed in that case.

Likewise, a beauty pageant would have the right to include transgender people. By way of analogy, the producers of a play about the Framers would have a right to cast only whites (for historical verisimilitude), mostly blacks (as in Hamilton), or others.

The Florida AG’s objection is that “‘Miss’ America and ‘Miss’ Florida advertise as women-only competitions, which is misleading and may violate FL law” (see the Tweet for the letter). But that strikes me as unsound, just as it would be unsound for a blue-state AG to go after Miss United States of America on the grounds that its exclusion of male-to-female transgender contestants is “misleading” given that AG’s view that his state’s residents would assume “Miss” does include such transgender contestants.

People obviously have sharp disputes about how to define “Miss,” “Asian” (consider the eligibility rules for Miss Asian America), “America,” “democracy,” “genocide,” “global warming,” and a vast range of other terms. It’s not for the government to resolve how people can use those terms in books, films, plays, pageants, and other fully First-Amendment-protected materials, and in promotion of those materials that characterizes the content of the materials. See, e.g., Groden v. Random House (2d Cir. 1995); Incarcerated Entm’t v. CNBC (D. Del. 2018).

In commercial advertising for nonspeech products (cars, food, and the like), misleading statements can indeed be restricted (though even there I’m not sure that courts would decide which of various contested definitions of “miss” is the right one). Indeed, even commercial advertising for books and the like might be restricted as misleading if it relates to the nonspeech features of the product, such as its price or other terms on which it’s being bought (e.g., if an ad misleadingly offers a video for sale while in reality it’s a rental).

But the government generally has no business threatening legal liability for allegedly misleading books, or for advertisements that describe the content of the books in ideologically controversial ways that one side of the debate calls misleading. That’s likewise true for newspapers, magazines, films, plays, and pageants. Public pressure aimed at getting a pageant to change its eligibility definitions, and how it describes those definitions, is generally fine. But threats of government “enforcement action,” I think, are not.