Female Nude Spa in Washington Can't Bar Transgender Clients With Male Genitalia, Federal Court Rules

Olympus Spa had sued on First Amendment grounds.

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 free speech rights when the WSHRC forced it to change its policy on its website; the 9th Circuit noted that "compelled changes in conduct—which might incidentally compel changes in speech—are not reviewed as content-based speech restrictions." In other words, the government forcing a store to remove a "whites only" sign, for example, would not be a First Amendment violation, as the speech restriction would be a natural consequence of complying with the law.

The spa further said the state had infringed on its freedom of religion by forcing the owners to violate their Christian beliefs around modesty, allowing clients with male genitalia to comingle with naked female clients, who can be as young as 13 years old. "Though we recognize that the Spa's desire to perform acts that contravene WLAD's mandate is motivated in part by religious belief," McKeown said, "the HRC's action under WLAD does not prohibit the Spa from expressing its religious beliefs."

And the spa's freedom of association objection, the 9th Circuit said, failed to pass legal muster because the business is neither an intimate nor an expressive association. "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,'" wrote McKeown. "Business enterprises serving the general public typically lack" the qualities of an intimate association, she noted, which is why they are usually subject to antidiscrimination laws. And to classify a nude spa as an "expressive association," she added, "would stretch the freedom of association beyond all existing bounds."

At the core of the decision is Washington state's definition of sexual orientation. "Washington chose an expansive definition" of that term, the 9th Circuit said. "The Spa simply did not challenge the statute itself"—opting instead for its First Amendment argument—"and it is not our role to rewrite the statute." That would have to come from the Legislature.

The decision "seems correct to me under current law," says Eugene Volokh, an expert on First Amendment issues and formerly a professor of law at UCLA. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)—the Supreme Court decision that ruled in favor of a cake baker who declined to make a wedding cake for a same-sex couple—would not apply here, Volokh notes, as that ruling was narrowly based on the Colorado Civil Rights Commission's explicit hostility toward the baker's religious views. "There was nothing like that in this case," he says, "nor was there evidence (which the Masterpiece Cakeshop majority also pointed to) that religious objectors were being treated worse than people with very similar secular objections."

That will likely dissatisfy many people, however, who do not want to see a private establishment legally obligated to place naked biological men among biological women—a requirement that would upend the sex-segregated business model core to Korean spas.

So how might Olympus Spa have proceeded in court with more success? "I expect there might be some constitutional right to privacy claim, either under the federal Constitution or the Washington Constitution," says Volokh. "But it's not clear whether that applies outside the context where the observation by the opposite sex is genuinely coerced, as it is in prisons. There is no federal constitutional right to be naked in a relatively public place."

That leaves another avenue: changing the law itself. "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 9th Circuit notes. An exception could be introduced, then, "allowing places of public accommodation to segregate facilities by gender however the places define it – including, if they wish, anatomical gender," says Volokh.

In dissent, Judge Kenneth K. Lee did not confront the plaintiffs' First Amendment arguments. Rather, he disputed the notion that the text of WLAD prohibits discrimination against transgender people. It's a difficult argument to make, though, when considering that sexual orientation as defined under state law explicitly includes "gender expression [and] identity"—a reminder that the responsibility, and the blame, for these problems often lies with lawmakers.