Ninth Circuit Court Rules a Spa’s Anti-Trans Ban is Not Protected By the First Amendment

The First Amendment does not guarantee this spa’s right to turn away trans women, the court ruled.

Photo by Michael Discenza on Unsplash

The Ninth Circuit ruled on Thursday that the owners of a Washington spa were not deprived of their First Amendment rights after the government told them they could not discriminate against a transgender patron.

The case stems from Olympus Spa, which is designated as a “women’s-only” space. They turned away a trans woman who sought their services because it conflicted with their religious beliefs, the owners claimed. The state’s Human Rights Commission intervened, asserting the spa needed to change their published admissions policy to be more inclusive and comply with the Washington Law Against Discrimination, or WLAD.

The spa’s policy had stated only “biological women” could enter. They said this can include trans women, but only those who undergo “bottom surgery” first.

"The family run business is owned by Korean Christians who hold sincere faith-based convictions against allowing persons whose genitals are external (males) to be present with persons whose genitals are internal (females) while in a state of partial or full undress if such persons are not married to one another,” the spa’s 2023 complaint reads.

The restriction did not appear to account for trans men or intersex individuals, and it is unclear whether these groups could be considered “woman” enough to enter the spa under this framework.

In other words, as per usual, policies attempting to target trans people on conceptions of “biological sex” are unscientific, inconsistent, and impossible to reliably apply. As they gain traction in businesses, schools, sports organizations, and even state laws, they artificially mold the idea of “sex” into whatever arbitrary notion fits someone's personal ideology about gender.

In response to the HRC’s request, the owners of Olympus Spa filed a lawsuit against the executive director of the agency as well as an HRC investigator. The spa owners asserted that their policies were protected under their First Amendment rights to freedom of speech, expression and religion.

But in her majority opinion, Judge M. Margaret McKeown rebuked plaintiffs’ claims that the state law violated the spa owners’ First Amendment rights. “[T]he Spa’s religious expression was only incidentally burdened,” she writes. “[T]he Spa and its patrons, in giving or receiving a Korean massage, do not engage in expressive activity sufficient to bring the activity within the protection of the First Amendment.”

However, the spa’s case could potentially be resurrected under other claims. “The Spa did not argue that the statute was vague or that the Spa’s conduct did not fit within the statute’s definition of discrimination on the basis of gender expression or identity [...] Indeed, the Spa may have other avenues to challenge the enforcement action,” McKeown writes in the ruling. “But whatever recourse it may have, that relief cannot come from the First Amendment.”

McKeown also rejected the claims of the lone dissenter of the panel, Judge Kenneth Lee, a Trump appointee.

“The dissent endeavors to make this case about anything but the Spa’s First Amendment claims, instead offering a political screed against the HRC’s enforcement of the statute, which relies on an unargued—and unfounded—interpretation of WLAD’s plain language,” McKeown writes. “But this case has nothing to do with President Trump or discrimination against Asian Americans. The Spa simply did not challenge the statute itself, and it is not our role to rewrite the statute.”

Olympus Spa was represented in court by the Pacific Justice Institute, which is designated as an anti-LGBTQ hate group by the Southern Poverty Law Center. The legal group and its founder “have compared legalized gay marriage to Hitler and the Nazis’ ascent in Germany; endorsed so-called ‘reparative’ or sexual orientation conversion therapy; claimed marriage equality would lead to legal polygamy and incest; fought against protections for trans children and fabricated a story of harassment by a trans student; and said that LGBT History Month promotes gay pornography to children,” as per the SPLC.