The Olympus Spa, Denuded by the 9th Circuit

When antidiscrimination law and the First Amendment collide, the Supreme Court has repeatedly clarified in cases ranging from 303 Creative v. Elenis, Boy Scouts of America v. Dale, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, to Masterpiece Cakeshop v. Colorado Civil Rights Commission and beyond, that the First Amendment must prevail. But in Washington state, the Human Rights Commission (HRC) has punished Olympus Spa, a Christian spa, for violating the Washington Law Against Discrimination (WLAD) (Wash. Rev. Code §§ 49.60.030(1)(b), 49.60.040(29)), which prohibits gender identity discrimination in places of public accommodation, despite the spa’s First Amendment defenses.  

Olympus Spa’s transgression? Olympus employed only women and limited access to its facilities to “biological women.” As a traditional Korean women’s spa, the Spa operated under centuries‑old cultural practices that required patrons to be fully nude in communal baths and steam rooms. This preserved the authenticity of an ancient Korean bathing tradition and the owners’ conservative Christian beliefs regarding prohibited nudity between the sexes.  

Yes, the spa refused men access to private spaces where women were naked. Quelle horreur!   

Given the entitlement of the trans mob, a transgender “woman’s” challenge to the Spa’s entrance policy was virtually certain. And indeed, in 2020, the same year of the Supreme Court’s anti-textualist aberration on the meaning of “based on sex” in Bostock v. Clayton County, a fully intact, transgender-identified man sought to use the Spa facilities and was denied entry. He filed a discrimination complaint with the HRC, asserting that the Spa had denied him entry and citing the discomfort he had suffered because of the Spa’s “cisgender” patrons only policy. 

Upon investigation, the Commission’s investigator concluded that Olympus’s female‑only policy violated WLAD, ordered policy changes including the removal of “biological women” from its entrance policy language, mandated gender-identity-sensitive training, and threatened the Spa with prosecution for noncompliance. Facing either legal penalties or the collapse of its business model, the Spa entered a settlement while reserving its right to challenge the law.  

The Spa then filed suit in the U.S. District Court for the Western District of Washington, alleging violations of the Free Exercise, Free Association, and Free Speech Clauses of the First Amendment. 

The trial court judge summarily dismissed Olympus’s claims. On appeal, and against a mountain of precedent to the contrary, a sharply divided panel of the U.S. Court of Appeals for the Ninth Circuit affirmed in 2025 (and filed an amended opinion in 2026 regarding its dismissal of the request for rehearing en banc). Judge McKeown authored the majority opinion in both instances, upholding the lower court’s dismissal of all First Amendment claims with prejudice for failure to state a claim on which relief could be granted.  

On appeal, and again upon reconsideration of its request for rehearing, the court was asked to consider whether enforcement of the WLAD against the Spa’s policies impermissibly burdened the Spa's First Amendment rights. 

As to the Spa’s free speech claims, the majority held that WLAD’s requirement to modify policies and statements constituted only an incidental restriction on speech as a regulation of discriminatory conduct. Applying intermediate scrutiny under United States v. O’Brien (391 U.S. 367 (1968)), the court concluded that the law furthered the important governmental interest in eradicating discrimination in public accommodations and imposed no greater restriction than was essential to that end. Citing O’Brien for the proposition that “the First Amendment does not protect ‘an apparently limitless variety of conduct . . . whenever the person engaging in the conduct intends thereby to express an idea,’” the court viewed the changes as factual disclosures in a commercial context rather than content-based compulsion.  

Two short weeks after the 9th Circuit ruled against the Spa, the Supreme Court ruled in Chiles v. Salazar that Colorado’s law banning “conversion therapy” was a viewpoint-based speech regulation, and that the lower courts erred by failing to apply sufficiently rigorous First Amendment scrutiny. After Chiles, it’s entirely possible that WLAD’s defense to the Spa’s free speech claims at the high court would fail. 

The 9^th Circuit majority then turned to Olympus’s free exercise claims, determining that WLAD was both neutral and generally applicable, and subject to nothing more than rational basis review under Employment Division v. Smith (494 U.S. 872 (1990)). The statute, it ruled, was rationally related to the legitimate purpose of preventing discrimination based on sex and gender identity. And the court found no evidence of religious hostility and rejected arguments that exemptions for private clubs or certain religious institutions rendered the law non-neutral or not generally applicable.  

Once again, in a failure to see the forest for the trees, the panel eschewed the Supreme Court’s logic in Fulton v. City of Philadelphia, 593 U.S. 522 (2021), an appreciation of which would have demanded an alternative outcome. In both the Fulton and Olympus Spa decisions, the Courts were tasked with assessing claims under the Free Exercise Clause of the First Amendment involving conflicts between religious beliefs and nondiscrimination laws.   

In Fulton, the Supreme Court held unanimously that Philadelphia’s policy was not generally applicable. The contract contained a provision allowing the Commissioner, in their “sole discretion,” to grant exceptions to the nondiscrimination requirement for services. This created a formal system of individualized, discretionary exemptions. Because the government retained authority to decide which reasons for noncompliance merited solicitude, the policy invited “the government to decide which reasons for not complying with the policy are worthy,” including potentially religious ones. As a result, strict scrutiny applied, and the policy failed because the city did not demonstrate that denying an exemption to CSS was narrowly tailored to a compelling interest (e.g., maximizing the number of foster parents or ensuring equal treatment).  

But the 9^th Circuit in Olympus Spa twisted the logic, holding that the Human Rights Commission’s enforcement of WLAD evidenced no religious hostility akin to the type demonstrated in Masterpiece Cakeshop v. Colorado Civil Rights Commission. On general applicability, WLAD contained no formal mechanism for individualized, discretionary exemptions, and its carve-outs, the court wrote (e.g., for bona fide private clubs or certain religious institutions such as cemeteries) were both categorical and mandatory, applying equally to secular and religious entities without requiring case-by-case evaluation of the reasons for exclusion. In this way, the majority explicitly distinguished Fulton, noting that WLAD’s exemptions did not create a system where the government weighs “particular reasons” for noncompliance, unlike the discretionary commissioner exception in Fulton.  

It likewise distinguished Tandon v. Newsom, 593 U.S. 61 (2021)—a relic of COVID-era regulation litigation—writing that WLAD did not treat comparable secular activities more favorably than religious ones, and that the private club exemption applied uniformly regardless of religious motivation. The burden on the spa’s beliefs was deemed incidental to regulating discriminatory conduct in public accommodations. 

But as the dissent pointed out, WLAD failed to meet the principles of both neutrality and general applicability. It contended that the private club exemption permitted secular entities to maintain single-sex policies while denying the same to religiously motivated businesses like the Spa, treating comparable activities differently, therefore triggering strict scrutiny under Tandon and Fulton. The dissent viewed the majority’s distinction from Fulton as overly formalistic. There was nothing in Fulton, for example, to indicate that the Court’s decision was sui generis, or limited to its specific facts.  

Finally, as to Olympus Spa’s Freedom of Association claims, the Ninth Circuit majority held that the Spa’s patron relationships were neither intimate (given its public, commercial character) nor expressive (as the services provided were primarily commercial rather than intended to convey a particular message). Consequently, no constitutional protection could be attached. 

Judge Lee dissented, noting that “the Spa has maintained its entry policy for over twenty years without complaint. But when one person complained about the policy in early 2020, the government pounced.” He went on to argue that WLAD’s definition of sexual orientation did not encompass the Spa’s genitalia-based policy as discrimination based on gender identity, writing that “Instead of considering what ‘gender identity’ means within the bounds of sexual orientation, the majority opinion does the opposite and concludes that the state adopted an ‘expansive’ definition that treats gender identity as ‘one form of sexual orientation.’” This, Judge Lee wrote, defied common sense, statutory construction, and the state’s own reading of the statute. Judge Lee further contended that WLAD’s enforcement raised serious concerns for women’s privacy and safety, particularly in intimate settings involving minors. He concluded by thundering that “the Washington Human Rights Commission has wielded its power to advance its own political agenda.”  

But it was Judge VanDyke’s dissent that carried the day. In it, as the kids say, he ate and left no crumbs.  

In an excoriating retort to the majority, VanDyke opened his opinion in a manner most won’t long forget:  

This is a case about swinging d*cks. 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. 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. Sometimes, it feels like the supposed adults in the room have collectively lost their minds. 

He then went on to answer the majority’s illogic by railing against “[w]oke regulators and complicit judges” who worked to ensure that women were “visually assaulted” by the presence of men in the spa. He added that while some rights are constitutionally protected precisely to avoid majoritarian infringement, the majority had allowed Washington State bureaucrats to trample on rights long secured by the Constitution.   

VanDyke went on to add that the majority had flunked the First Amendment. WLAD was not, he wrote, a categorical ban on discrimination in Washington State, because it carved out two groups for preferential treatment. In that way, it could not be characterized as neutral or generally applicable. The “free exercise of religion is not sufficiently protected simply because the government deigns to allow ‘non-secular aggregations’ to cloister in private places or attend traditional services,” VanDyke continued. “The Constitution’s protection of free exercise is not so parsimonious.” He added, “The Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion.” 

VanDyke decried the “alarming human costs imposed by a social cause that blindly drives forward without the self-awareness to realize that it has begun to incinerate its own hard-won, historic achievements.” For women nationwide, he wrote, “this is not progress. This is regression. Confusion in civil discrimination codes now compels tolerance of the very same conduct that the criminal code simultaneously penalizes.” In closing, VanDyke took aim at the majority’s critique of his language: 

Sometimes ‘dignified and civil’ words are employed to mask a legal abomination…Sometimes coarse and ugly words bear the truth. I coarsely but respectfully dissent from our court’s willingness to leave this travesty in place.    

The Supreme Court has never held that antidiscrimination law can be used to coerce or compel otherwise protected speech, association, or the violation of one’s religious beliefs under the guise that any such right is “offensive,” or is an affront to anti-discrimination law. In contrast, in cases where the government has imposed burdens on freedom of expression stemming from the desire to avoid sexual orientation discrimination, for example (such as in Boy Scouts v. Dale, in which the state attempted to suppress expression that conveyed disapproval of “homosexual conduct”), the Supreme Court has found a First Amendment violation. 

Astonishingly, the Olympus Spa majority acknowledged as much, opening its opinion, “where public accommodations laws impermissibly burden constitutional rights, public accommodations laws must give way.” But its analysis defied the very principle it recognized. 

The Supreme Court may yet have a chance to rectify the Ninth Circuit’s blunder. Olympus Spa has been granted an extension to file its petition for certiorari until July 10, 2026.  

Sarah Parshall Perry is the Vice President and Senior Legal Fellow at Defending Education.