In Olympus Spa v. Armstrong, the U.S. Court of Appeals for the Ninth Circuit turned a local dispute over who gets into a women‑only spa into a test of how far state law can go to protect transgender people—and how far a federal judge can go in a dissenting opinion.
The Underlying Dispute: A Nude Spa and a Broad Civil Rights Law
If you’ve ever been to a Korean spa, or jjimjilbang, you know the basic trade: radical relaxation in exchange for radical vulnerability. You shower, you strip, and you move through hot pools and scrub rooms in full view of strangers. For many women, that bargain feels acceptable only if everyone in the room is female.
Olympus Spa leans into that model. It operates two women‑only locations in the South Puget Sound area of Washington State, the biggest Korean community in the Pacific Northwest. These two spas, one in Lynnwood and the other in Tacoma, require patrons to be fully nude in shared spaces and for traditional Korean body‑scrub services. This certainly isn’t unique to Olympus Spa; the standard practice at traditional jjimjilbangs is nude bathing in wet areas, clothing required in dry areas. What sets Olympus Spa apart is that the entire spa is exclusively female, whereas other jjimjilbangs traditionally allow both sexes, but segregate the sexes in the nude wet areas while allowing the dry areas to be co‑ed.
The owners of Olympus Spa are conservative Christians. They frame their “biological women”‑only policy as both a cultural choice and a matter of religiously inflected modesty: anyone without male genitalia could enter, including post‑operative trans women; anyone with male genitalia could not.
From One Patron’s Complaint to State Enforcement
Haven Wilvich is a transgender woman who identifies as a woman but is biologically male and has not undergone sex‑reassignment surgery. She claims that, in 2020, she was refused service by Olympus Spa, being told that transgender women without surgery were not welcome because they might make other customers and staff uncomfortable. Wilvich soon complained to the Washington State Human Rights Commission.
The Commission opened an enforcement action under the Washington Law Against Discrimination, which defines “sexual orientation” to include “gender expression or identity” in public accommodations. After back‑and‑forth letters, the agency decided the spa’s entry policy illegally excluded pre‑operative trans women and pushed the spa to accept an early settlement instead of facing formal enforcement. Olympus Spa accepted that offer, sort of: it took down the “biological women” language, adopted an explicit nondiscrimination statement covering sexual orientation and gender identity, agreed to training, and promised compliance — while reserving the right to sue. The spa then went to federal court to pick a bone under the Constitution.
In district court, plaintiffs Olympus Spa argued that using this broad anti‑discrimination law to override its genital‑based admissions rule violated its First Amendment rights to speech and to the free exercise of religion through the ability to maintain a women‑only space (which, for them, means a female genital-only space) for expressive and intimate association. The spa did not dispute that its policy singled out pre‑operative trans women as defined by the statute, but maintained that this genital‑based line was constitutionally protected.
After the trial judge dismissed the case, the fight moved into the appellate pipeline and landed before a panel of the United States Court of Appeals for the Ninth Circuit.
9th Circuit Majority Opinion
Last year, the Ninth Circuit handed down a majority opinion that largely accepted Washington’s legal framing and rejected Olympus Spa’s attempt to constitutionalize its genital‑based policy. The panel sided with the appellees (the state officials and commission), treating WLAD as a neutral, generally applicable public‑accommodations statute that straightforwardly covers discrimination against pre‑operative trans women by defining “sexual orientation” to include “gender expression or identity,” and held that the spa’s conduct fell squarely within that prohibition under state law.
On the First Amendment side, the court’s decision characterized the dispute as ordinary regulation of discriminatory conduct, with only incidental effects on free speech and religious exercise, rather than compelled ideological endorsement of gender identity. It applied intermediate scrutiny to the compelled‑speech claim and rational‑basis review to the free‑exercise claim, and concluded that Washington’s interest in eradicating discrimination against transgender people in public accommodations justified requiring the spa to abandon its “biological women only” rule and associated website language.
After the panel decision, Olympus Spa asked the Ninth Circuit to reconsider the case en banc. A majority of active judges declined, and issued a slightly revised version of its 2025 opinion, tweaking the majority’s statutory and First Amendment discussion without changing the result of the appellate ruling.
The denial of rehearing en banc became a new flashpoint. A few conservative judges wrote separate dissenting opinions to say, in essence, that the panel had misread Washington law and shortchanged religious‑liberty and women‑only‑space concerns.
‘Swinging Dicks’ Meets the Federal Reporter
Of these dissents, Judge Lawrence VanDyke’s is the most aggressive and sweeping — and it’s triggered sharp backlash from the legal community.
Judge VanDyke’s dissent opens with a line that instantly set it apart: “This is a case about swinging dicks.” In contrast to the majority opinion, which framed the case as a straightforward question of whether WLAD protects transgender women as a form of sexual‑orientation discrimination, VanDyke recasts it as the state forcing a traditional Korean women‑only nude spa to admit men with intact male genitalia into intimate spaces used by women and girls.
The judge blasts “[w]oke regulators and complicit judges,” accusing them of eagerly imposing their “Frankenstein social experiments” on “real women and young girls” who use Olympus Spa. To underscore the stakes, he stresses that women and girls at Olympus Spa, “some as young as thirteen,” must share a nude space with individuals who have “intact male sexual organs.” He also points out that the female employees at the Spa “must provide full‑body deep‑tissue massage to naked persons with intact male sexual organs—or else lose their livelihood,” in violation of their religious beliefs.
On the law, VanDyke argues that WLAD does not, by its terms, protect transgender status and that the majority has improperly read gender expression or identity to create broader protections than the plain language of the statute supports. He maintains that Washington’s exemptions mean the law is not generally applicable and should face strict scrutiny, not rational‑basis review — a frontal attack on the court’s decision to treat the statute as neutral, generally applicable state law in the first place.
When Judicial Rhetoric Becomes the Story
VanDyke’s colleagues have not been quiet about any of this. Several Ninth Circuit judges publicly condemned his dissent as an embarrassing outlier in the annals of appellate judging. For Judge McKeown and the two dozen colleagues who signed onto her statement, the problem isn’t just VanDyke’s bottom line, but his tone.
In their view, the courts exist to “resolve disputes in a dignified and civil manner,” not to traffic in “vulgar barroom talk” or accuse fellow judges of having “collectively lost their minds.” That kind of rhetoric, they warn, “makes us sound like juveniles, not judges,” trades legal reasoning for “publicity or entertainment value,” and ultimately “undermines public trust in the courts” and “demeans this court.”
Because of the judicial infighting, legal commentators across the spectrum have treated VanDyke’s opinion less as judicial reasoning than as a culture‑war audition tape. A case that involves an important and disputed legal issue that forces an honest reckoning with trans rights has instead become a spectacle about tone.
Related Resources
- Trump DOJ Tries to Seize Control of State Bar Ethics Investigations (FindLaw’s Practice of Law)
- Sexual Orientation and Gender Identity Discrimination (FindLaw’s Learn About the Law)
- Wisconsin Taxpayers Sue Legislature for Double-Billing Lawyers (FindLaw’s Practice of Law)
