On May 29, in a 2-1 decision of a 3-judge panel, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court decision that a Washington state law prohibits a female-only spa from excluding men (specifically, men who have penises). One judge published a dissenting opinion. WDI USA, which had filed a friend-of-the-court (amicus) brief before the Ninth Circuit, was not surprised by this decision.
In this post, we’ll explain the lead-up to the decision, why this outcome is unsurprising, and what might be next.
Unfortunately for women and girls in Washington, WDI USA thinks that the majority decision is probably correct as a matter of state law, although we think the case could have been decided differently. We are disappointed that neither the majority nor the dissenting opinion appears to have taken any of our amicus arguments into consideration and think that this is ultimately a matter for the Washington state legislature to address.
Factual and Legal Background
The Olympus Spa is a traditional Korean spa outside of Seattle. In line with Korean tradition, nudity is expected (and, in some instances, required). As the dissenting opinion begins:
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.
All of the patrons of the spa are (or are supposed to be) female. One service the spa makes available is a body scrub, performed exclusively by female employees. During this scrub, trained employees use specific materials to perform a skin exfoliation. It’s called seshin. Again, according to the dissent:
After soaking in a warm pool, customers are scrubbed head-to-toe to promote holistic health and to exfoliate the skin. Seshin is performed by ddemiri, individuals who are trained in the Korean art of body scrub using traditional techniques. Ddemiri intimately touch patrons for prolonged periods as they scrub them all over their bodies. And all of this occurs in a large communal area, where all the patrons must be naked.
In 2020, a man named Haven (Caleb) Wilvich decided that the spa’s female-only policy was unacceptable to him and complained to the state Human Rights Commission (HRC). Wilvich writes a blog titled, “Finding Haven: The gender quest of a nonbinary trans woman.” His latest post, from 2024, is titled, “Reflecting on 8 years of being professionally trans.”
According to a 2018 Facebook post from the Seattle Nonbinary Collective, he was serving as their Treasurer, Secretary, and Social Media Coordinator at the time.
Two years later, he was complaining to the Washington state Human Rights Commission about the spa’s female-only policy. The majority opinion in the Ninth Circuit’s decision from May 29 refers to him as “a transgender woman.”
The underlying basis for his argument was that the spa’s female-only policy violated the Washington Law Against Discrimination (WLAD). That law prohibits places of public accommodation (including the spa) from discriminating against people on the basis of several categories, including sexual orientation. State law also defines sexual orientation to mean:
heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, “gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.
The HRC agreed with him that the spa’s female-only policy violated the WLAD and ordered the spa to change its policy. At some point during the proceedings, the spa began allowing “post-operative transgender women” (i.e., men who have had their penises surgically removed) to enter the spa. Undeterred, Wilvich and the HRC continued to pursue the matter, and the spa agreed to an interim settlement in which they would allow “pre-operative transgender women” to enter the spa while the matter was pending. The HRC ordered it to change its signage and website accordingly.
Olympus Spa then sued the HRC in federal court in the Western District of Washington. The spa alleged that the HRC violated its First Amendment rights to free speech, free exercise of religion, and freedom of association. It did not allege that the WLAD violated women’s rights. We think that was a mistake.
In June of 2023, the District Court for the Western District of Washington rejected the spa’s First Amendment arguments and ruled that the spa was, indeed, in violation of the WLAD by excluding males from the spa.
The New York Post ran a story about it, that included a more recent photo of Wilvich:
The Post noted that after the district court decision, Wilvich posted on social media:
I did it! I got the main naked lady spa in the area to change their policies and allow all self-identified women access regardless of surgery and genitals!
I’m more woman than any TERF will ever be because I am an intentional woman whereas they are only incidental!
The spa appealed to the Court of Appeals for the Ninth Circuit, where WDI USA filed an amicus brief in support of neither party. Our brief is available here. We presented three main arguments.
First, we argued that if the WLAD elevates “gender expression or identity” over sex, it violates the Equal Protection Clause of the 14th Amendment by unlawfully discriminating against women and girls. We think this is the argument the spa should have presented to the district court initially. However, we also found provisions of the WLAD that protects sex by exempting classifications that are “based on sex” and “necessary for sexual privacy.” We thought perhaps the spa’s female-only policy could be saved by those provisions.
Second, we argued that Washington state cannot, as a practical matter, enforce both the “gender expression or identity” provision of the WLAD and also its criminal laws prohibiting voyeurism and indecent exposure. We went on to explain what those laws say and to highlight the fact that for a man to walk around in a nude female spa with his penis exposed, he is necessarily committing both offenses.
Third, we argued that the district court had used the term “transgender” and other related phrases uncritically and without definition in its decision, and that the term “transgender” is a linguistic sleight of hand that obscures the material reality of sex and entrenches regressive sex stereotypes.
To that final point, throughout its decision, the District Court for the Western District of Washington repeatedly used the phrase “transgender women with male genitalia.” So, in the final section of our brief, we included the following paragraph:
In its orders granting Appellees’ motions to dismiss, the District Court repeatedly used the word “transgender” and the phrases “transgender woman,” “transgender women,” and “transgender women with male genitalia” uncritically and without definition. According to the National Institutes of Health, male genitalia consists of “the external organs (penis; scrotum; and urethra) and the internal organs (testis; epididymis; vas deferens; seminal vesicles; ejaculatory ducts; prostate; and bulbourethral glands).” At no point did the District Court explain how individuals with male genitalia can be a type of women. It goes without saying that women do not have any of these organs. It is truly a testament to where we are as a society today that it must be said in the context of federal civil rights litigation that women don’t have penises.
As noted, the Ninth Circuit’s decision is a 2-1 ruling in favor of the HRC.
The majority opinion agreed with the district court that the spa was in violation of the WLAD. It did so by reading the (terrible) text of the statute plainly. The WLAD does prohibit discrimination on the basis of sexual orientation, and it does define sexual orientation to include “gender expression or identity.” We wish it did not. The state legislature is the only entity that has the authority to amend the law to protect women and girls as a sex class.
The majority then went on to reject all three of the spa’s First Amendment arguments, and we think it was probably right to do so. This case should not have been pled as a First Amendment case in the first place. The details are complicated, but the court’s rejection of the three First Amendment arguments boils down to its conclusions that the HRC: (1) did not violate the spa’s free speech rights because its order that the spa change its signage and website simply furthered the HRC’s lawful determination that the spa was required to admit men; (2) did not violate the spa’s right to freedom of exercise of religion because notwithstanding the religious practices of the spa’s owners (they’re Christian), the spa itself is not a religious institution; and (3) did not violate the spa’s right to freedom of association because the spa is not an “intimate association” that meets any exception that would allow it to be exempted from the WLAD.
The dissenting judge really wanted to rule in favor of the spa. Unfortunately, in order to do so, he essentially made up a statutory interpretation that does not exist and accused the HRC of having a political agenda that distracted it from doing its job. It appears that the HRC does in fact have a political agenda (its administrators hate Donald Trump). But unfortunately for women and girls, it does not logically follow that it had the authority to exempt the spa from the state law against discrimination.
Why This Outcome Is Unsurprising
Typically, an amicus brief is filed in support of one or the other party. As mentioned, we filed our brief in support of neither party, which is rare. We did this for a few reasons. We could not, in good conscience, file a brief in support of the HRC, which treated the spa badly throughout the course of the case. And, although we do not support the spa’s decision to admit men who have had their penises removed, we understand that the spa wanted to maintain its female-only policy and that they were doing their best to navigate a terrible and confusing situation.
More importantly, even though we disagree with the law and continue to stand firmly in support of female-only spaces, we thought this outcome was likely. We think the majority was right that the WLAD does, in fact, prohibit discrimination against men who call themselves women in places of public accommodation and that this is a matter for the Washington state legislature to fix.
On the day the Ninth Circuit’s decision came down, our former president Kara Dansky posted about it on X, and one user replied, “Then the law is obscene.”
We could not agree more.
Another user replied, “That’s what living in a blue state gets you.”
Unfortunately, we agree with that sentiment as well.
We read the dissenting opinion as wanting to rule in favor of the spa and inventing a statutory interpretation accordingly. We don’t like it, but we think the majority opinion is correct that “[t]he dissent endeavors to make this case about anything but the Spa’s First Amendment claims, instead offering a political screed against the HRC’s enforcement of the statute, which relies on an unargued—and unfounded—interpretation of WLAD’s plain language.”
However, the Ninth Circuit could have done something different.
This is how our brief concluded:
Women have fought hard to be considered full members of society, on equal footing with men. Part of this equality depends on women having privacy from men under certain circumstances, including in places of public accommodation where nudity is expected. Until recently, everyone seemed to understand that men who invaded women’s intimate spaces were rightly shamed and charged with criminal offenses. That understanding seems to have been forgotten with the emergence of “gender expression or identity” in law and society, including in Washington. Today, if a man like HW says that he “is transgender” or that he has a “gender expression or identity” different from his sex, our laws simply hold the doors wide open for him to access places where women and girls are nude or otherwise in a state of vulnerability.
If the District Court correctly interpreted the WLAD to mean that any man can access any women-only space in a place of public accommodation over Appellants’ First Amendment objections, its decision should be affirmed and the Washington State Legislature should get to work immediately to fix this problem. If, on the other hand, the WLAD’s provision exempting lawful classifications that are both based on sex and necessary for sexual privacy protects Appellants’ ability to maintain a single-sex spa, the District Court’s decision should be reversed and remanded. Amicus understands that none of the arguments put forth in this brief were pled in either the original or the amended complaint. Accordingly, another option for this Court would be to remand and order the District Court to conduct a de novo review of them.
(De novo means “from the beginning.”)
We wish the Ninth Circuit had sent the case back to the district court for consideration of our arguments. It did not.
What Might Be Next
First of all, the Democrats who control the Washington state legislature need to get to work to fix this by amending the WLAD to clarify that women have a right to female-only intimate spaces.
In the meantime, the spa has the option to request a review of this 3-judge panel decision by the full court (en banc) which may or may not be granted. The spa also has the option to file a petition for certiorari (request for review) before the Supreme Court, and the Supreme Court has the option to take it up (or not). If neither the full Ninth Circuit nor the Supreme Court decides to weigh in, this decision stands as is.
Regardless, WDI USA will be there, fighting for the sex-based rights of women and girls all the way.
