Female Nude Spa in Washington Can’t Bar Transgender Clients With Male Genitalia, Federal Court Rules
A female nude spa in Washington state cannot bar preoperative transgender women, a federal court ruled last week, rejecting the claim that forcing the business to serve customers with male genitalia violated its First Amendment rights.
In 2020, Haven Wilvich, who identifies as a “nonbinary trans woman,” filed a complaint with the Washington State Human Rights Commission (WSHRC) after allegedly being turned away from Olympus Spa in Lynnwood, Washington, for having a penis. Olympus, which has another location in Tacoma, is a traditional Korean spa that offers full-body scrubs and massages, and requires nudity in its pool area, which is why it caters to a single-sex clientele. (The spa also accepts postoperative transgender women.)
The WSHRC, however, said the business’s policy ran afoul of the Washington State Law Against Discrimination, otherwise known as WLAD, which prohibits discrimination on the basis of “race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability.” Sexual orientation, under state law, is defined to mean “heterosexuality, homosexuality, bisexuality, and gender expression or identity.”
After entering into a settlement with the WSHRC in October 2021, Olympus Spa sued, alleging the state’s enforcement against it violated its rights to free speech, freedom of religion, and freedom of association.
But none of those were applicable to this case, ruled the U.S. Court of Appeals for the 9th Circuit in May. “We are not unmindful of the concerns and beliefs raised by the Spa,” wrote Judge M. Margaret McKeown for the 2–1 majority. “Indeed, the Spa may have other avenues to challenge the enforcement action. But whatever recourse it may have, that relief cannot come from the First Amendment.”
The spa said the state had violated its fre
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