In a landmark ruling, the U.S. Ninth Circuit Court of Appeals has decreed that a Christian-owned, women-only Korean spa must allow transgender women, including those who have not undergone sex-reassignment surgery, to use its facilities.
This decision upholds a previous ruling from a Seattle lower court in 2023.
According to The Post Millennial, the spa in question, Olympus Spa, operates two locations in Washington state. The spa was accused of discrimination against a transgender woman who was denied access to the women's facility, which requires patrons to be nude. This policy has been in place since the spa's establishment. The three-judge panel ruled 2-1 against the spa.
In 2020, the Washington State Human Rights Commission (WSHRC) lodged a complaint against the spa after Haven Wilvich, a transgender woman, was denied entry. The WSHRC cited violations of the Washington Law Against Discrimination (WLAD), which prohibits discrimination based on sex and sexual orientation.
In response, Olympus Spa sued the WSHRC, alleging First Amendment violations. The spa argued that the state's policy infringed upon its constitutional rights to freedom of religion, speech, and association.
However, the Circuit Appeals Court ruled that the spa could not sue the state on First Amendment grounds. Judge Margaret McKewon, a Bill Clinton appointee, noted in her opinion that "the spa's religious expression is only incidentally burdened."
She further stated, "We are not unmindful of the concerns and beliefs raised by the spa...The spa may have other avenues to challenge the enforcement action. But whatever recourse it may have, that relief cannot come from the First Amendment."
Judge McKewon drew parallels between the spa's actions and racism during the civil rights era, suggesting that the spa's exclusion of transgender women was akin to racial segregation. She clarified, "It's not really 'biological women are welcome.' It means non-biological women are not welcome."
Judge Kenneth Lee, a Donald Trump appointee, diverged from his colleagues, issuing a dissenting opinion. He accused the state of using its anti-discrimination laws for political gain. He highlighted the unique nature of Korean spas, which require patrons to be fully naked in communal saunas and during deep-tissue body scrubs. Given this intimate environment, Korean spas traditionally separate patrons and employees by sex.
Judge Lee criticized the state's threat of prosecution against Olympus Spa for denying entry to a pre-operative transgender woman. He expressed concern about the implications of the state's directive, which would require women and girls as young as 13 to be nude alongside patrons with exposed male genitalia. He also pointed out that female spa employees would be required to provide full-body massages to naked preoperative transgender women with intact male sexual organs.
Judge Lee argued that the state's interpretation of the WLAD was perverse and distorted, stripping women of protections instead of safeguarding women's rights. He asserted, "The women and girls of Washington state deserve better."
This ruling follows a 2023 decision by a federal judge who dismissed Olympus Spa's complaint against the state's Human Rights Commission. The judge found the business's First Amendment violation claims to be unfounded.
Olympus Spa, a family-run business owned by Korean Christians, has served women in private, intimate spaces since its inception. The owners hold strong faith-based convictions against allowing individuals with external genitals (males) to be present with individuals with internal genitals (females) in a state of partial or full undress, unless they are married to each other.
The plaintiffs argued that if they were forced to allow transgender women with intact male genitalia into the spa, many customers and employees would not return, leading to potential bankruptcy.
A federal judge ruled that the company violated the state's discrimination laws through its written company policy that only "biological women" are permitted to use the facility. The WHRC ordered the spa to remove the term "biological women" from its website, undergo "inclusivity" training, and permit fully intact men into its female-only facilities.
Kevin Snider, the spa's attorney, argued on appeal that "the women sharing in this cultural and spiritual experience have associational and free exercise rights." However, Judges McKeown and Ronald Gould, also a Bill Clinton appointee, claimed that the state's enforcement of banning discrimination based on sexual orientation "does not prohibit the Spa from expressing its religious beliefs."
Judge Lee, however, argued that the spa's written company policy does not discriminate against the state's discrimination laws based on sexual orientation. He stated, "The spa's entry policy focuses not on sexual orientation but on whether an individual has male genitalia."
The implications of this case are far-reaching and it is likely to be argued before the United States Supreme Court.
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