SAN FRANCISCO — Nearly 30 judges on the Ninth Circuit Court of Appeals have issued written rebukes of a colleague after his coarsely worded dissent in a case involving a spa that refused service to a transgender woman, according to Reuters.
The unusual responses came after the full Ninth Circuit declined to review a case involving Washington state’s anti-discrimination law and a traditional Korean women-only spa that denied service to a transgender woman.
The case involved Olympus Spa, a Korean women-only spa where customers are typically nude and gather in common areas.
Washington law bars discrimination in public accommodations based on sexual orientation, including gender expression or identity.
The dispute began in 2020 when transgender woman Haven Wilvich filed a complaint with the Washington Human Rights Commission after the spa denied her service.
Olympus Spa is owned by a conservative Christian family, according to court filings.
In 2021 the spa reached a settlement with the commission in which it agreed to change its policies but reserved the right to challenge the agreement in court.
The spa filed that constitutional challenge the following year, arguing that the settlement violated the owners’ rights to free speech, association and religious exercise under the First Amendment.
A federal judge dismissed the case in 2023, ruling that Washington’s anti-discrimination law applies generally to all businesses and does not violate the spa owners’ constitutional rights.
The Ninth Circuit affirmed that ruling in May in a 2-1 opinion written by Circuit Judge M. Margaret McKeown, and the full court declined to rehear the case.
Circuit Judge Lawrence VanDyke, an appointee of President Donald Trump, dissented from the court’s decision not to rehear the case.
VanDyke’s dissent began with the statement that “this is a case about swinging dicks.”
He continued, “You may think that swinging dicks shouldn’t appear in a judicial opinion,” adding, “I hope we all can agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa — some as young as 13 — to be visually assaulted by the real thing.”
The language drew swift criticism from other judges on the court.
In a written response attached to the opinion, 27 judges condemned the remark as “vulgar barroom talk” that could undermine public trust in the courts.
It is common for appellate judges to issue sharply worded opinions in disagreement with one another, but rarely in such personal or coarse terms.
Circuit Judge M. Margaret McKeown, joined by six other judges, wrote separately that VanDyke’s “crass” language distracted from what she described as a routine case involving discrimination in public accommodations.
“It is certainly not a case involving ‘woke regulators’ and ‘complicit judges’ out to harm ‘women and young girls,’” McKeown wrote, referring to language used in VanDyke’s dissent. “Those assertions describe a case entirely different from the one presented to the panel.”
In another brief response, Circuit Judges John Owens and Danielle Forrest wrote in a single sentence, “Regarding the dissenting opinion of Judge VanDyke: We are better than this.”
Forrest is a Trump appointee, while Owens was appointed by former President Barack Obama.
VanDyke did not immediately respond to requests for comment.
A spokesperson for the Ninth Circuit said the court does not comment on its opinions or cases before it.
Four Trump-appointed judges also dissented from the decision not to rehear the case, though none joined VanDyke’s opinion.
Circuit Judge Eric Tung argued that Washington’s anti-discrimination law should have been subjected to a higher level of scrutiny because it contains exceptions for both secular and religious institutions.
Tung was joined by VanDyke and Circuit Judges Ryan Nelson and Patrick Bumatay, while Circuit Judge Daniel Collins filed a separate dissent.
VanDyke, who was on Trump’s shortlist for a U.S. Supreme Court nomination during the former president’s first term, has frequently criticized his colleagues and the Ninth Circuit, particularly over immigration-related rulings.
In another recent incident, VanDyke recorded a video while wearing his judicial robes and handling several firearms to express his disagreement with a Ninth Circuit ruling upholding a California gun law.
Circuit Judge Marsha Berzon later wrote in a concurring opinion that the video was “wildly improper” and amounted to VanDyke presenting himself as an expert witness.
The case is Olympus Spa v. Armstrong, Ninth U.S. Circuit Court of Appeals, No. 23-4031.
The spa is represented by Kevin Snider of the Pacific Justice Institute, while the state of Washington is represented by Neal Luna from the Washington Attorney General’s office.
Follow the Vanguard on Social Media – X, Instagram and Facebook. Subscribe the Vanguard News letters. To make a tax-deductible donation, please visit davisvanguard.org/donate or give directly through ActBlue. Your support will ensure that the vital work of the Vanguard continues.
