Women-Only Naked Spa Lacks First Amendment Right to Exclude Transgender Patrons with Penises
From Olympus Spa v. Armstrong, decided today by Ninth Circuit Judge Margaret McKeown, joined by Judge Ronald M. Gould:
In 2020, the HRC [Human Rights Commission], the agency tasked with enforcing WLAD [Washington Law Against Discrimination], received a complaint from a transgender woman. The complaint alleged that Olympus Spa “denied [her] services and stated that transgender women without surgery are not welcome because it could make other customers and staff uncomfortable.” Specifically, the Spa excluded preoperative transgender women who have not yet received gender confirmation surgery affecting their genitalia….
WLAD is a wide-reaching law that prohibits discrimination in a variety of areas, including employment, real estate, public accommodations, credit, and insurance. The public accommodations section covers discrimination in the “right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement.” WLAD proscribes discrimination based not only on race but also categories including “age, sex, sexual orientation, and disability.” … WLAD … [defines] “sexual orientation” … to mean:
heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, “gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.
WLAD’s governing regulations permit the maintenance of certain “gender-segregated facilities,” such as “restrooms, locker rooms, dressing rooms,” and similar spaces, so long as the facility does not remove or otherwise take action against a person for reasons “[]related to their gender expression or gender identity.” … The Spa does not dispute that WLAD’s proscription of discrimination on the basis of sexual orientation applies to its conduct here. Nor could it…. The statutory language is undoubtedly expansive, and its definition of sexual orientation is bespoke. But it is also unambiguous, and it applies to the Spa’s entrance policy….
The court rejected the SPA’s free speech claim:
[T]he HRC required the Spa to adopt new language “affirm[ing] equal access, service, and treatment for all customers ‘without regard to … sexual orientation or gender identity.'” … [But t]he mandated alterations were “plainly incidental to the [challenged law’s] regulation of conduct, and ‘it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.'” Rumsfeld v. FAIR (2006) (quoting Giboney v. Empire Storage & Ice Co. (1949)).
{The Spa alleged that the HRC “required that Olympus Spa remove language from its website that has a viewpoint that ‘biological women’ are females and distinct from males.” But the Spa has not pointed to any specific statements that were on the website before the enforcement action and removed during its pendency, beyond the statement that “[b]iological women are welcome” to enter the Spa. As alleged, the HRC’s action went no further than requiring that the Spa’s entrance policy comply with WLAD and that the Spa’s website accurately convey that policy. The action did not otherwise infringe on the Spa’s freedom to publish its views on the nature of gender.}
The court rejected the Spa’s Free Exercise Clause claim, applying Employment Division v. Smith (1990), under which religious objectors aren’t generally constitutionally entitled to exemptions from religion-neutral, generally applicable laws. And the court rejected the Spa’s freedom of association claim:
The Constitution protects the freedom of association as “a fundamental element of personal liberty” and “an indispensable means of preserving other individual liberties.” 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.” These are fundamental and important rights but none of them are implicated here.
To begin, the Spa is not an intimate association. The bottom line is that payment of the entrance fee is the price of admission. And any woman, except a transgender woman who has not yet received gender confirmation surgery affecting her genitalia, who can pay the fee can be admitted. Intimate associations are “dis
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