A Christian-run Korean spa in Washington state is petitioning the Supreme Court to approve its women-only entrance policy, after intensely divided appeals court judges rejected the spa’s First Amendment claim.
Calling the appellate rejection a “constitutionally intolerable outcome,” Olympus Spa wants the justices to intervene in the contentious case.
Represented by conservative Christian legal groups, the spa says its policy is based on its patrons’ anatomy, not their identity. Therefore, the business argues, it didn’t violate state law that bars discrimination based on gender identity.
In support of its appeal, the spa’s petition cites recent high court rulings such as the Skrmetti case, which approved Tennessee’s ban on gender-affirming care for minors last year, as well as the justices’ more recent ruling in June that approved state bans on transgender women and girls playing on their preferred sports teams.
The dispute stemmed from a complaint received by Washington’s Human Rights Commission in 2020, in which a transgender woman alleged that Olympus Spa denied her services and said transgender women who hadn’t had gender-conforming surgery weren’t welcome because it could make other customers and staff uncomfortable.
The commission said the spa’s policy violated state law against public facilities discriminating on the basis of sexual orientation, which includes gender expression and identity. The spa argued that enforcing the law against it violated its First Amendment rights.
A divided appellate panel with two Clinton appointees in the majority upheld a district judge’s ruling against the spa. The panel majority said the business discriminated based on gender identity and that the state law didn’t unduly burden its constitutional rights to free speech, exercise of religion or association.
Trump appointee Kenneth Lee noted in his dissent from the panel ruling that Korean spas have a tradition of patrons being fully naked and sitting in communal saunas where they receive deep-tissue body scrubs in an open area with other nude guests. He emphasized that the spa “will treat biological women and post-operative transgender women of any sexual orientation, race, religion, or any other protected status.”
“To put it plainly,” Lee said, “Olympus Spa — a female-only spa — provides services to anyone without male genitalia.”
Lee accused the state commission of having a political agenda against the president who appointed him to the bench. The majority accused Lee of writing “a political screed” and said that the case “has nothing to with President Trump or discrimination against Asian Americans.”
The sharp judicial disagreement and rhetoric continued when a larger group of the judges on that court, the U.S. Court of Appeals for the 9th Circuit, declined to rehear the case.
Dissenting from that refusal, another Trump appointee, Lawrence VanDyke, who writes intentionally provocative opinions, framed the matter this way: “This is a case about swinging dicks.”
He said the spa’s owners “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.” VanDyke said that however shocking his language, he hoped that “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.”
One of the responses from VanDyke’s 9th Circuit colleagues was a brief one from two of them (including a fellow Trump appointee) that said, “Regarding the dissenting opinion of Judge VanDyke: We are better than this.”
The spa’s Supreme Court petition didn’t quote VanDyke’s “swinging” language. But it cited other parts of his dissent while highlighting that other Republican-appointed judges dissented too. Among them was Trump appointee Daniel Collins, who wrote that the spa “simply does not care whether a person seeking admittance is transgender; it cares only whether the person has male genitalia.”
In its petition, the spa’s lawyers from the Alliance Defending Freedom and the Pacific Justice Institute cast the case as only the latest failure of the San Francisco-based circuit court to require intervention from the justices in Washington, D.C.
For example, the petition cited the high court’s siding earlier this year with California parents over the state in an emergency appeal involving parental notification of students’ gender nonconformity and social transition. “The Ninth Circuit has an equally poor track record of protecting women-only spaces,” the petition went on, pointing to the justices’ ruling in June that approved transgender sports bans in Idaho (which the 9th Circuit covers) and West Virginia.
The state will have an opportunity to respond to the spa’s petition before the justices decide whether to grant review. It takes four justices to agree to hear a case. The court has six Republican appointees and three Democratic appointees who have divided along those lines in cases that raised similar issues. The justices likely will not announce until the fall, at least, whether they will accept review of this case. They are due back on the bench in October to start their next term.
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