We usually give just one judge our “Dishonorable Judicial Conduct Award” but the opinion recently issued by two judges on the Ninth Circuit Court of Appeals, Clinton appointees M. Margaret McKeown and Ronald M. Gould, was so outrageous – and so outside the law – that we felt compelled to give them both our April award.
Olympus Spa v. Armstrong began as a lawsuit by the owners of two Korean spas that limited entry only to “[b]iological women.” They refused entry to a man claiming to be a woman who had not had surgery to change his intact male genitals, and he filed a complaint with the Washington Human Rights Commission (WHRC).
The WHRC decided that the spa had violated the Washington Law Against Discrimination, which prohibits discrimination based on “sexual orientation” in places of public accommodation. The spa owners sued, alleging that the WHRC had violated their First Amendment rights to free speech, the exercise of religion, and free association. The district court dismissed their lawsuit and the Ninth Circuit, with McKeown and Gould in the majority, and Judge Kenneth Lee (a Trump appointee) strongly dissenting.
Lee, who replaced the notorious liberal icon Stephen Reinhardt, provided important context for this case. Korean spas, he explained, are “steeped in centuries-old tradition” and focus on “rejuvenating the body and mind through treatments” that “require their patrons to be fully naked.” They sit in communal saunas and “undergo deep-tissue scrubbing of their entire bodies in an open area filled with other unclothed patrons.” Because of “this intimate environment, Korean spas separate patrons as well as employees by their sex.”
McKeown and Gould, Lee wrote, are telling Olympus Spa that “women – and girls as young as 13-years-old – must be nude alongside patrons with exposed male genitalia as they receive treatment.” Plus, the female employees will be forced to “provide full-body massages to naked pre-operative transgender women with intact male sexual organs.”
The spa’s owners explained that their “Christian belief in modesty between men and women” is a “central tenet” of their “traditional theologically conservative” beliefs. But as Lee says, their “pleas fell on deaf ears,” and there was a complete lack of sympathy for “members of a racial minority group who want to share their cultural heritage and provide a safe space for women and girls.”
Looking at the statute, Lee observed that the law doesn’t even mention “gender expression or identity” but bans discrimination based on “sex” and “sexual orientation.” So-called “transgender status,” Lee argued, is “different from sexual orientation” and the state law “protects only the latter, and not the former.” The state’s reading of the statute, which McKeown and Gould endorsed, “violates basic canons of statutory construction.” The spa simply doesn’t discriminate on the basis of sexual orientation; it admits lesbians, homosexuals, and bisexuals. This is genital discrimination, out of respect for both Korean tradition and the privacy and safety of the spa’s female patrons and employees.
This is another decision (several have even reached the Supreme Court such as Chiles v. Salazar) in which a state is manipulating or even suppressing people’s First Amendment rights to promote its own political agenda on gender and sexuality. The WHRC’s website, Lee explained, includes “statements about national politics that have little to do with” its duties, attacking President Trump and his views. The Commission “exerted the full force of state power to bully members of a politically weak minority group,” Asians, who have long been discriminated against in Washington state and elsewhere.
Shockingly, the full Ninth Circuit refused the spa owners’ request to review this outrageous three-judge decision. In his dissent from that denial, Judge Lawrence VanDyke (a Trump appointee) used graphic language to describe this miscarriage of justice. This case, he wrote, is about male genitals, plain and simple, although Vandyke used a much more graphic term about “swinging d**ks.” The Christian owners of this “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 wrote that anyone disturbed by his choice of words should consider how much more distress Washington state and the Ninth Circuit are forcing upon women and girls in Korean spas. VanDyke added that while his “distressed colleagues appear to have the fastidious sensibilities of a Victorian nun,” they have no such scruples “when it comes to the government trampling on religious liberties and exposing women and girls to male genitalia. That kind of selective outrage speaks for itself.”
We’ve focused a lot on these dissents because they most starkly expose the absurd and offensive position that McKeown and Gould took in this case. Their obvious objective to further the gender warriors’ rampage through our society meant turning a blind eye to First Amendment rights that, in any other context, they might be the first to defend.
As VanDyke put it, their “willingness to keep this travesty in place” wins them the April Dishonorable Judicial Conduct Award.
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