Ninth Circuit Says Women-Only Korean Spa Must Serve Pre-Op Transgender People

​Last week, the Ninth Circuit Court of Appeals ruled that a Christian-owned, women-only spa in Washington State must serve biological males if they identify as transgender. That means, dissenting judge Kenneth Lee wrote, that “under edict from the state, women – and even girls as young as 13 years old – must be nude alongside patrons with exposed male [parts] as they receive treatment.”
 
The Ninth Circuit’s ruling is as constitutionally suspect as it is nonsensical. Olympus Spa is a Korean business drawing from a centuries-old cultural heritage. Such 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.” As such, they separate patrons by sex in accordance with their religious beliefs – which merits protection under the U.S. Constitution.
 
The facts of the case are fairly straightforward. When a pre-op transgender woman was apparently denied entry into Olympus Spa, she filed a discrimination complaint with the state’s Human Rights Commission. Eventually, Olympus brought suit on First Amendment grounds, arguing that the state’s enforcement action violated its free speech, free exercise of religion, and free association rights.
 
The Ninth Circuit dismissed the case, finding that the Washington Law Against Discrimination (WLAD) “did not impermissibly burden” those rights. The court majority asserted that the law is both neutral and generally applicable, and that the burden imposed was “no greater than was essential to eliminate discriminatory conduct.” The court further found that the spa’s activities did not constitute expressive activity.
 
Judge Lee, a Korean American, took issue with the majority’s findings – and particularly with its statutory interpretation of WLAD. The plain text, as Lee points out, bars discrimination based on “sexual orientation” and not gender identity. Moreover, he writes, the majority’s broad reading of the statute has the effect of discriminating against other protected classes – in this case, a discrete racial group of practicing Christians.
 
Lee writes:
 
“The Washington Human Rights Commission threatened prosecution against a protected class – racial minority members who want to share their cultural traditions – to favor a group that is not even a protected class under the statute. To be clear, transgender persons, like all people, deserve to be treated with respect and dignity. But showing respect does not mean the government can distort the law and impose its will on the people the law was intended to protect.”
 
Legitimate questions of statutory interpretation aside, we agree with Olympus Spa that it has strong First Amendment claims in need of recognition. Businesses, like individuals, have First Amendment rights (see Masterpiece Cakeshop). If this case goes to the U.S. Supreme Court, it is likely these principles will be applied.
 
Protect The 1st will report on any further developments in this case.

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