Judges Condemn Colleague’s Vulgar Dissent in Transgender Spa Case

SAN FRANCISCO — A dispute within the Ninth U.S. Circuit Court of Appeals has erupted after a judge used blunt and graphic language in a written dissent connected to a case involving a women-only Korean spa and a transgender customer. Nearly 30 judges on the court responded in writing to criticize the tone of the dissent.

The situation developed after the full Ninth Circuit declined to reconsider a case about Washington state’s public accommodations law and a Korean women-only spa called Olympus Spa. The business operates as a traditional Korean spa where patrons are nude in shared areas.

Washington law prohibits discrimination by public businesses based on sexual orientation, including gender identity or expression.

The controversy traces back to 2020 when Haven Wilvich, a transgender woman, filed a complaint with the Washington Human Rights Commission after Olympus Spa refused to admit her. Court filings say the spa is owned by a conservative Christian family.

In 2021, the spa reached an agreement with the commission to adjust its policies. At the same time, the owners preserved their ability to challenge the agreement in court.

The following year the spa filed a lawsuit claiming the settlement violated their First Amendment rights, arguing that it infringed on their freedom of speech, association, and religious practice.

A federal judge dismissed the case in 2023, finding that Washington’s anti-discrimination law applies broadly to businesses and does not violate the constitutional rights of the spa’s owners.

In May, a three-judge panel of the Ninth Circuit upheld that ruling in a 2-1 decision authored by Judge M. Margaret McKeown. The full court later chose not to rehear the case.

Judge Lawrence VanDyke, who was appointed to the court by President Donald Trump, wrote a dissent objecting to the decision not to revisit the case. His dissent opened with a graphic phrase describing the dispute.

VanDyke argued that while some readers might believe such language does not belong in a judicial opinion, he believed the situation faced by women and girls at the spa was more disturbing.

His remarks quickly drew criticism from many of his colleagues on the court.

In a written response included with the opinion, 27 judges said the language amounted to “vulgar barroom talk” and warned it could damage public confidence in the judiciary.

Although appellate judges frequently disagree sharply in written opinions, exchanges using such coarse wording are uncommon.

Judge McKeown, joined by six other judges, also issued a separate response. She wrote that the language used by VanDyke was crude and diverted attention from what she described as a straightforward case involving a state anti-discrimination law. She also rejected claims in the dissent suggesting that regulators or judges were targeting women and girls.

In another short statement, Judges John Owens and Danielle Forrest addressed VanDyke’s dissent in a single sentence, writing that the court should hold itself to a higher standard.

Forrest was also appointed by President Donald Trump, while Owens was appointed by 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 rulings or pending matters.

Four other judges appointed by President Donald Trump also disagreed with the decision not to rehear the case, but they did not join VanDyke’s dissent. Judge Eric Tung argued in a separate opinion that Washington’s anti-discrimination law should have faced stricter constitutional scrutiny because it contains exceptions for certain secular and religious institutions.

Tung’s dissent was joined by VanDyke, Judge Ryan Nelson, and Judge Patrick Bumatay. Judge Daniel Collins wrote a separate dissent of his own.

VanDyke, who appeared on President Donald Trump’s shortlist for a U.S. Supreme Court nomination during his first term, has often criticized the Ninth Circuit and its rulings, particularly in immigration cases.

In another recent dispute, VanDyke recorded a video of himself wearing his judicial robes while handling several firearms to protest a Ninth Circuit decision that upheld a California gun law.

Judge Marsha Berzon later wrote that the video was “wildly improper,” saying it effectively portrayed VanDyke as presenting himself as an expert witness in the matter.

The case is Olympus Spa v. Armstrong in the Ninth U.S. Circuit Court of Appeals. 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.