Last week, a cert petition was filed in Olympus Spa v. Armstrong, a case from the Ninth Circuit that had garnered a lot of public attention. For more than two decades, a family in the state of Washington ran a small business, founded by Korean immigrants, built on a simple premise: Women deserve a place to be fully unclothed among other women, not in a mixed-sex setting. Olympus Spa is a jjimjilbang, a traditional Korean bathhouse where nudity is actually required. Patrons soak, steam, and undergo a full-body scrub called seshin, which female staff administer to female patrons as young as thirteen. The Lee family, who left Korea seeking greater religious freedom, infused into the business their Christian conviction that men and women shouldn’t be unclothed together outside marriage. That practice protected women’s and girls’ privacy.
Then, in 2020, a man who identifies as a woman—married twice to women, and by his own account still attracted to women—complained to the Washington State Human Rights Commission that Olympus Spa had denied him entry to the nude communal area. The spa says it has no record he ever visited, and he later told reporters he never actually went in, only called ahead of a friend’s visit. That didn’t stop the Commission from acting on his complaint under the Washington Law Against Discrimination (WLAD), which bars businesses open to the public from denying service based on protected traits, including sex and “sexual orientation.” The latter is defined by statute to include “gender expression or identity.” The Commission decided the spa’s practice broke that law, threatened a referral for prosecution to the state attorney general, and gave the family ten days to change course or close.
Olympus Spa challenged Washington in federal court on three First Amendment theories—free speech, free exercise, and associational freedom—and the Ninth Circuit rejected all three. The spa’s cert petition presents two of those constitutional issues—free exercise and freedom of association—and an additional issue that goes to WLAD’s applicability in the first place: “[w]hether a policy that differentiates based on anatomy discriminates ‘based on gender identity or transgender status.’” The latter issue implicates the Supreme Court’s recent decision in West Virginia v. B.P.J.
The Ninth Circuit panel that heard the case split 2–1, with Judge Kenneth Lee in dissent on statutory grounds. “Washington has perversely distorted a law that was enacted to safeguard women’s rights to strip women of protections,” he wrote. The spa’s practice was actually to limit entry to biological women and to those who were born biological males but underwent sex-change surgery, and Lee noted that its doors were open to “biological women and post-operative transgender women of any sexual orientation, race, religion, or any other protected status.” He added that “gender expression or identity” was featured in the definitional section of the statute as an aspect of “sexual orientation” (interestingly, not of “sex”) and was not “an independently protected class” under WLAD.
The Ninth Circuit’s denial of en banc rehearing drew multiple dissents. Judge Eric Tung, joined by judges Ryan Nelson, Patrick Bumatay, and Lawrence VanDyke, dismantled the panel’s analysis of Olympus Spa’s free exercise argument. As Tung noted, “the State can disregard a small-business owner’s Christian beliefs and force her family-run Korean spa to allow a nude man (who claims to be a woman) into an intimate space reserved for its female patrons. Yet under that same law, private clubs embracing secular values can refuse entry to that man.” This discrimination against religion “refutes the law’s purported neutrality and general applicability,” and thus the law “should have been subject to strict scrutiny.”
Judge VanDyke elaborated on this issue in a separate dissent, delving into Supreme Court case law—especially Church of the Lukumi Babalu Aye v. City of Hialeah (1993), Tandon v. Newsom (2021), and Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission (2025)—to explain how the state violated the Free Exercise Clause. Citing Lukumi, he asserted that “WLAD is ‘underinclusive on its face’ and is not generally applicable.” As he noted, the statute “allows private institutes, clubs, places of accommodation, and fraternal organizations to freely exclude every biological male in the state, while penalizing Olympus Spa’s identical ‘conduct motivated by religious belief.’” VanDyke wrote that Tandon made clear that “[i]f ‘any comparable secular activity’ is treated ‘more favorably than religious exercise,’ the law is not generally applicable.” The lack of general applicability subjected WLAD to strict scrutiny, a high standard it could not survive. While recent Supreme Court free exercise decisions “control[] this case,” VanDyke added that Washington applied “WLAD’s redefinition of sexual classifications in a perverse way that actually undermines legal protections granted to women” and “generates an irreconcilable conflict with Washington’s criminal laws against voyeurism and indecent exposure.”
VanDyke’s dissent got the most attention for using language that was intentionally shocking, in order to point out the absurdity of the majority’s reasoning. I won’t repeat what he described himself as “coarse and ugly words,” but it worked like a charm. It triggered pearl-clutching responses to his opinion by commentators who simultaneously saw nothing wrong with what the judge described as “the unsuspecting and exposed women at Olympus Spa—some as young as thirteen” being “visually assaulted” by a naked man’s genitalia.
In yet another dissent, Judge Daniel Collins made a statutory argument that was somewhat different from Judge Lee’s. Even assuming that gender identity were a “standalone protected class” under WLAD, he argued that the distinction involved in the spa’s policy was anatomical: “Olympus Spa simply does not care whether a person seeking admittance is transgender; it cares only whether the person has male genitalia.”
The Ninth Circuit dissenters did not address the free association issue, but the cert petition relies on Boy Scouts of America v. Dale (2000), which the panel majority tried to distinguish. The lower court had found that “the Spa’s commercial services” were not designed to “transmit . . . a system of values,” unlike the Boy Scouts. The cert petition disagrees: The spa’s “mission is to help its patrons achieve spiritual renewal and to pass on Korean cultural values and traditions through the practice of centuries-old rituals.” Yes, “its patrons pay a fee for those rituals,” but “[t]he Boy Scouts, too, charge a fee.”
The Ninth Circuit majority displayed obtuseness and perhaps willful blindness in rejecting every argument the spa made. The Supreme Court now has several meritorious arguments before it, and any one of them would be sufficient to reverse the Ninth Circuit. The justices should take this case and reverse a horrendous ruling.