The case of a Korean spa in Washington state is raising as many questions as the justices answered when they ruled that the state had a right to enforce its anti-discrimination laws after the spa barred a transgender woman from receiving services there, where customers are segregated by sex and mingle freely in the nude.
The Olympus Spa in Lynnwood sued Washington state after officials imposed changes on the business so it would comply with state anti-discrimination laws. The trans woman who inspired the enforcement, Haven Wilvich, complained to the state’s Human Rights Commission in 2020 that she was denied services among other female customers because she has a penis. The spa welcomes trans clients who have undergone gender-affirming surgery, the Seattle Times reports.
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Olympus Spa, which operates women-only spas in Lynnwood and Tacoma, had argued in a lawsuit against the state that its enforcement violated the spa’s rights to free speech, freedom of religion, and freedom of association.
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That claim was denied in May by a federal appeals court.
None of those freedoms were applicable to this case, the U.S. Court of Appeals for the 9th Circuit ruled.
“We are not unmindful of the concerns and beliefs raised by the Spa,” wrote Judge M. Margaret McKeown for the 2–1 majority. “Indeed, the Spa may have other avenues to challenge the enforcement action. But whatever recourse it may have, that relief cannot come from the First Amendment.”
The spa said the state had violated its free speech rights when the Human Rights Commission forced it to change its policy on its website. The judges noted that “compelled changes in conduct — which might incidentally compel changes in speech — are not reviewed as content-based speech restrictions.”
In one example, the order to remove a “whites only” sign by the government wouldn’t be a First Amendment violation, because the speech restriction is a natural consequence of complying with the law.
The spa’s freedom of association objection, the ruling said, doesn’t apply because the business is neither an “intimate” nor an “expressive” association.
“That right protects both ‘intimate association,’ that is, the ‘choices to enter into and maintain certain intimate human relationships,’ and ‘expressive association,’ which is ‘a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion,’” Judge McKeown wrote.
“Business enterprises serving the general public typically lack” the qualities of an intimate association, she said, and that’s why they are normally subject to antidiscrimination laws.
To classify a nude spa as an “expressive association,” she claimed, “would stretch the freedom of association beyond all existing bounds.”
As to infringing on its freedom of religion, by forcing the owners, in their words, to violate their Christian beliefs around modesty and allow nude clients with male genitalia to comingle with naked clients with female genitalia, the court said simply, “Though we recognize that the Spa’s desire to perform acts that contravene WLAD’s [the Washington State Law Against Discrimination] mandate is motivated in part by religious belief, the HRC’s action under WLAD does not prohibit the Spa from expressing its religious beliefs.”
In a derisive dissent from Korean-born Circuit Judge Kenneth Lee, the judge maintained the spa’s entry policy had been in place for over twenty years without complaint.
“But when one person complained about the policy in early 2020, the government pounced.”
He characterized the Human Rights Commission’s ruling as political. The HRC, he wrote, “wielded its power to advance its own political agenda.”
Lee also suggested that the law discriminated against Asian Americans, a group that he claimed has “historically lacked political clout” in Washington State.
Olympus Spa is represented by Pacific Justice Institute, a Southern Poverty Law Center-designated anti-LGBTQ+ hate group. The legal defense group based in California backed the state’s Proposition 8, which banned same-sex marriage for several years, and has worked to repeal California laws banning conversion therapy and others protecting trans students.
Pacific Justice said they plan to refile the case for review by the full Court of Appeals.
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