Olympus Spa, with two locations in Washington state, was found to have discriminated against a trans-identifying male with fully intact male genitalia after it prohibited him from using the women's facility that requires patrons to be nude, a policy that has been in place since its inception. The three-judge panel ruled against the spa 2-1.
In 2020, the state's Human Rights Commission (WSHRC) filed a complaint after Haven Wilvich was denied entry to the spa, citing violations of the Washington Law Against Discrimination (WLAD) that prohibits discrimination based on sex and sexual orientation. The spa then sued the WSHRC on First Amendment violations, arguing that the state's policy violated its constitutional rights to freedom of religion, speech, and right of association, according to the suit.
The Circuit Appeals Court ruled Thursday that the spa cannot sue the state on First Amendment grounds. Judge Margaret McKewon, appointed by Bill Clinton, wrote in the opinion that "the spa's religious expression is only incidentally burdened." She added, "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 compared the spa's discrimination in previous arguments to racism during the civil rights era, stating that the spa prohibiting trans-identifying males from the facility would be akin to white people banning black people from establishments. She stated, "It's not really 'biological women are welcome.' It means non-biological women are not welcome."
Judge Kenneth Lee, appointed by President Donald Trump, strayed from his colleagues and issued a fiery dissent, accusing the state of weaponizing its anti-discrimination laws for political purposes.
"Korean spas are not like spas at the Four Seasons or Ritz-Carlton with their soothing ambient music and lavender aroma in private lounges. Steeped in centuries-old tradition, Korean spas require their patrons to be fully naked, as they sit in communal saunas and undergo deep-tissue scrubbing of their entire bodies in an open area filled with other unclothed patrons. Given this intimate environment, Korean spas separate patrons as well as employees by their sex," Judge Lee wrote.
"The state of Washington, however, threatened prosecution against Olympus Spa, a female-only Korean spa, because it denied entry to a pre-operative transgender female - i.e., a biological male who identifies as female but has not undergone sex-reassignment surgery."
"Now, under edict from the state," he continued, "women - and even girls as young as 13 years old - must be nude alongside patrons with exposed male genitalia as they receive treatment. And female spa employees must provide full-body massages to naked preoperative transgender women with intact male sexual organs."
"This is not what Washington state law requires. While the WLAD forbids discrimination based on (among other things) sex and sexual orientation, its text and structure make clear that it does not cover transgender status. Washington has perversely distorted a law that was enacted to safeguard women's rights to strip women of protections. The women and girls of Washington state deserve better," Lee wrote.
The decision came after a federal judge in 2023 dismissed Olympus Spa's complaint against the state's Human Rights Commission, claiming that the business's First Amendment violation claims were unfounded.
"Since inception, Olympus Spa has served women in their intimate spaces in a private setting," the business wrote in its complaint. "The family run business is owned by Korean Christians who hold sincere faith-based convictions against allowing persons whose genitals are external (males) to be present with persons whose genitals are internal (females) while in a state of partial or full undress if such persons are not married to one another."
The plaintiffs wrote that if they were forced to allow trans-identifying males with intact male genitalia to enter the spa, customers and employees have "communicated that they will not return unrder such circumstances, causing the business to spiral into bankruptcy."
A federal judge ruled that the company violated the state's discrimination laws through its written company policy that stated only "biological women" are permitted to use the facility. The WHRC ordered the spa to erase the term "biological women" from its website, undergo "inclusivity" training, and permit fully intact men into its female-only facilities. Olympus Spa has locations in Lynwood, WA and Tacoma, WA.
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 appointed by Bill Clinton, claimed that the state's enforcement of banning discrimination based on sexual orientation "does not prohibit the Spa from expressing its religious beliefs."
Additionally, Judge Lee argued that the spa's written company policy banning trans-identifying men from the facility does not discriminate against the state's discrimination laws based on sexual orientation. "The spa's entry policy focuses not on sexual orientation but on whether an individual has male genitalia," Lee wrote.
This case will likely be argued before the United States Supreme Court.
