Pearls were clutched by Justices of the Ninth Circus Court of Appeal when Justice Lawrence Van Dyke cut to the chase in the lead dissent when a panel of that court denied Olympus Spa a hearing by of their appeal by the full Court. For those of you scoring at home, Jeff Childers summarized the controversy as follows:
“Olympus Spa is a Christian-owned, women-only Korean mandatory nudity communal spa in Washington state. The state’s regulators heavily fined it for denying entry to a transgender ‘woman’ with intact male genitalia, the full package, “twig plus berries,” holding that the state’s anti-discrimination law only incidentally burdened the spa’s religious expression, and did not transform its customer policy into protected speech or raise any freedom-of-association issue. The sharp dissent accused the agency of pushing a political agenda, forcing women and girls to be naked alongside patrons with exposed male genitalia, and effectively targeting a small Korean-American business with little political clout.”
True dat. Under Washington State law, public accommodation anti-discrimination law includes “gender expression” under sexual orientation, a protected characteristic. And the Spa’s counsel may have made a tactical error in appealing the Human Rights Commission’s ruling on First Amendment grounds. The Ninth Circus opinion stated that “The Spa simply did not challenge the statute itself, and it is not our role to rewrite the statute.” Oops.
Nonetheless, the original decision was a tad wacky. Quoted by the Appellate Court, “Although the Spa contended that its entrance policy was based only on genitalia, the HRC explained that the policy “denie[d] services to transgender women who have not had surgery specifically because their physical appearance is not ‘consistent’ with the traditional understanding of biological women.” Funny how that happens when you’re male.
Now, the Court noted that the “WLAD’s [Washington Law Against Discrimination] governing regulations permit the maintenance of certain ‘gender-segregated facilities,’ such as ‘restrooms, locker rooms, dressing rooms,’ and similar spaces, so long as the facility does not remove or otherwise take action against a person for reasons ‘[]related to their gender expression or gender identity.’” Wash. Admin. Code § 162-32-060(1)–(2). So why not a slam dunk decision for the Spa?
Well, it’s because of that subterfuge of genital appearance, which seems to say the trans complainant wasn’t really male, per his genitals, but was actually a funny-looking female: “The Spa’s entrance policy denies entry to preoperative transgender women whose ‘gender identity’ or ‘appearance,’ as defined in WLAD, differ from the physical traits associated with postoperative or cisgender women. The statutory language is undoubtedly expansive, and its definition of sexual orientation is bespoke. But it is also unambiguous, and it applies to the Spa’s entrance policy.”
You can’t make this stuff up. And yet the Courts that have heard this case have gone ahead and made this stuff up anyway.
That did not sit well with Justice Lawrence VanDyke, who used “intentionally shocking language” in his lead dissent. I try to shy away from crude language here, to be polite. That said, I applaud Justice Van Dyke for leading off with this:
“This is a case about swinging dicks. The Christian owners of Olympus Spa— a traditional Korean, women-only, nude spa—understandably don’t want them in their spa. Their female employees and female clients don’t want them in their spa either. But Washington State insists on them. And now so does the Ninth Circuit.
“You may think that swinging dicks shouldn’t appear in a judicial opinion. You’re not wrong. But as much as you might understandably be shocked and displeased to merely encounter that phrase in this opinion, I hope we all can agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa—some as young as thirteen—to be visually assaulted by the real thing.
“Sometimes, it feels like the supposed adults in the room have collectively lost their minds. Woke regulators and complicit judges seem entirely willing, even eager, to ignore the consequences that their Frankenstein social experiments impose on real women and young girls. Yet if harmful and unfortunate consequences were all this case was about, we’d have to shrug and say: ‘That’s what comes with living in a democracy.’ Unless the Constitution is implicated, we get what we voted for ‘good and hard.’” [H.L. Mencken citation in the omitted footnote.]
And half the Panel misplaced its fecal material. But some of us law nerds got a thrill out of Justice Van Dyke slapping the majority across the face with the stinky halibut of truth. What a moment!
Justice Van Dyke may have pulled the Spa’s hash out of the First Amendment fire when he opined, “WLAD’s exemption of private clubs grants preferable treatment to secular activities that pose a comparable threat to the government interest underlying the statute. As a result, WLAD is not generally applicable, and we should have subjected WLAD’s application in this case to strict scrutiny, a standard it cannot survive. And as the intervening publication of Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, 605 U.S. 238 (2025), has made clear, WLAD is also not neutral because it facially distinguishes between religious activities based on religious practitioners’ theological choices.”
He then wrapped up his introduction with “The Supreme Court’s recent Free Exercise jurisprudence controls this case. An optimist might expect that to have had some effect on the outcome of this dispute and our court’s en banc vote. But even where the Supreme Court has defined a clear rule protecting disfavored constitutional rights, never underestimate woke judges’ willingness to sacrifice those rights on the altar of ‘social progress.’”
“For centuries, traditional Korean spas have provided treatment to women in female-only spaces. Full nudity is central to the tradition, and every woman is required to be completely nude when using Olympus Spa.” Gee, sounds like the late, lamented Osento Japanese-style bath, for which I wrote a Human Rights Commission amicus brief in a similar controversy before cooler heads prevailed. (And I’m still waiting for Justice Breyer to acknowledge my having invented the Bona Fide Occupational Qualification (“BFOQ”) defense of women’s privacy.)
The next step in the appeals process would be to bring it before the Supreme Court, if there are no procedural barriers. No need to with to be a fly on the wall; oral arguments are archived for public perusal. “At Olympus Spa’s request, a clause was added to the settlement reserving the spa’s right to bring a legal challenge as to the constitutionality of the agreement or the underlying statutes,” so here we go.
There’s good reading out there, should you wish to join me in RTFM. Women’s Declaration International USA filed an amicus brief in which it stated: “enforcing WLAD’s public accommodation provisions while also upholding criminal laws against voyeurism and indecent exposure creates a legal contradiction—a man with a penis cannot legally be in a nude women’s spa without committing a crime.” Ouch!
The amicus brief is at https://womensdeclarationusa.com/wp-content/uploads/2024/04/WDI-USA-Olympus-Spa-amicus-4-3-2024-STAMPED-1.pdf. It quotes Complainant (“twice … married to women, and remains sexually attracted to women”) as bragging, “I did it! I got the main naked lady spa in the area to change their policies and allow all self-identified women access regardless of surgery and genitals.” Creep.
Justice Van Dyke’s dissent begins at page 60 at https://cdn.ca9.uscourts.gov/datastore/opinions/2026/03/12/23-4031.pdf. It’s a corker.
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