Judge's spa case dissent sparks backlash
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Illustration: Sarah Grillo/Axios
A federal judge is facing backlash from colleagues after opening a dissent in a recent Washington state case by noting that "this is a case about swinging d-cks."
The big picture: While the case focused on gender identity and transgender rights within a women-only spa in the Seattle area, Ninth Circuit court Judge Lawrence VanDyke's words have sparked a separate controversy in judicial circles.
Driving the news: More than two dozen Ninth Circuit judges rebuked VanDyke after his comment appeared in a court ruling last week declining to rehear the case involving Olympus Spa, which has locations in Lynnwood and Tacoma.
- Judge M. Margaret McKeown called the dissent's language "vulgar barroom talk" and wrote that courts are meant to resolve disputes "in a dignified and civil manner."
- Bloomberg Law described the dissent as "unusually crass" for a federal appellate opinion.
In the same dissent, VanDyke dismissed criticism of his language.
- "My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words," he wrote.
- He argued Washington had wrongly applied its anti-discrimination law to force a religiously owned spa to admit transgender women who have not had gender confirmation surgery.
Catch up quick: The case stems from a 2020 complaint by a transgender woman who was denied entry to Olympus Spa because she had not undergone gender confirmation surgery.
- Washington's Human Rights Commission ruled the policy violated the Washington Law Against Discrimination, which bars discrimination in public accommodations based on sexual orientation — a category state law defines to include gender identity.
- The spa later settled with the state civil rights agency and agreed to remove "biological women" language from its policy.
State of play: The Christian-owned spa sued state officials in federal court in 2022, arguing enforcement of the law violated its First Amendment rights to free speech, association and religion.
- A federal district court judge dismissed the suit, ruling the law is a neutral anti-discrimination statute regulating business conduct.
- A Ninth Circuit panel upheld that ruling in a 2–1 decision last year.
What's next: Olympus Spa's lead attorney Kevin Snider of the Pacific Justice Institute told Axios the case will be appealed to the U.S. Supreme Court.