The 9th Circuit’s spat over a women-only Korean nude spa landed squarely in the headlines after a sharp dissent by Judge Lawrence VanDyke criticized an outcome forcing the spa to accept a transgender woman; the case raises questions about public accommodations law, free speech, judicial tone, and whether intimate spaces should be treated differently under Washington’s anti-discrimination statute.
I practiced law for nearly three decades before moving into media, so legal stories still catch my eye and this one did not disappoint. The dispute centers on a traditional Korean, women-only, nude spa in Washington and a complaint filed in 2020 by a transgender woman who said she was denied services. Washington’s Law Against Discrimination prohibits discrimination in public accommodations based on gender identity, and that law is the engine driving the enforcement action against the spa.
The spa defended its policy as a restriction based on biological sex and physical privacy rather than a categorical exclusion targeting gender identity; it reserved the right to challenge the settlement and the underlying statutes on constitutional grounds. A federal district court dismissed the spa’s lawsuit, the Ninth Circuit affirmed, and the spa’s petition for rehearing en banc was denied, prompting a fiery dissent. The procedural posture matters because it frames how far courts will go when private, intimate spaces clash with state anti-discrimination rules.
Before getting into the meat of the dissent, a quick warning: FAIR WARNING: SPICY LANGUAGE AHEAD. Judge VanDyke’s writing departs from typical judicial decorum and uses blunt, graphic imagery to make a point about bodily privacy in intimate settings. His rhetoric is meant to shock, and that shock is part of his legal and rhetorical strategy to highlight what he sees as a mismatch between judicial tone and hard facts affecting women and minors in a nude spa environment.
This is a case about swinging dicks. The Christian owners of Olympus Spa—a traditional Korean, women-only, nude spa—understandably don’t want them in their spa. Their female employees and female clients don’t want them in their spa either. But Washington State insists on them. And now so does the Ninth Circuit.
VanDyke acknowledges the unconventional imagery and doubles down on why it matters, arguing that actual physical exposure is more jarring than encountering a shocking phrase in an opinion. He stresses the spa’s focus on protecting female patrons and employees, including minors, from unexpected exposure to male genitalia in a setting designed for women’s privacy. That emphasis on bodily privacy and the spa’s cultural context is central to his objection to the court’s rulings.
You may think that swinging dicks shouldn’t appear in a judicial opinion. You’re not wrong. But as much as you might understandably be shocked and displeased to merely encounter that phrase in this opinion, 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 thirteen—to be visually assaulted by the real thing.
Colleagues on the panel criticized VanDyke’s tone as coarse and undignified, saying it undermines public trust in the judiciary and departs from norms of civility. Their response accuses the dissent of “vulgar barroom talk” and warns against language that reads like invective rather than reasoned argument. Those rebukes highlight a tension: can blunt, provocative language be a legitimate vehicle for defending privacy and religious convictions when conventional phrasing might obscure lived harms?
The American legal system has long been regarded as a place to resolve disputes in a dignified and civil manner or, as Justice O’Connor put it, to “disagree without being disagreeable.”1 It is not a place for vulgar barroom talk. Nor is it a place to suggest that fellow judges have “collectively lost their minds,” or that they are “woke judges[]” “complicit” in a scheme to harm ordinary Americans. That language makes us sound like juveniles, not judges, and it undermines public trust in the courts. The lead dissent’s use of such coarse language and invective may make for publicity or entertainment value, but it has no place in a judicial opinion. The lead dissent ignores ordinary principles of dignity and civility and demeans this court. Neither the parties nor the panel dissent found it necessary to invoke such crude and vitriolic language. Decorum and collegiality demand more.
The case raises predictable questions conservatives will press at every level: when does protecting sex-based privacy and religious liberty justify an exemption from anti-discrimination rules, and who gets to draw the lines in intimate settings? VanDyke’s dissent makes the argument bluntly: some spaces exist precisely to shield women from exposure to nudity associated with male biology, and those spaces should not be casually redefined by administrative enforcement. The argument dovetails with broader Republican concerns about religious freedom and the limits of government compulsion in private facilities.
Whether Olympus succeeds on appeal will depend on how higher courts weigh privacy, sex-based exemptions, and the reach of state anti-discrimination laws. If the spa pursues Supreme Court review, justices will have to confront not just statutory text but the cultural and bodily realities that VanDyke emphasizes, along with the question of judicial tone and institutional legitimacy. The stakes go beyond a single spa: the outcome could affect how courts treat similar conflicts between intimate female spaces and evolving public-accommodation norms.
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