The Legal Battle Over Who Gets To Show Their Genitals at a Nude Spa Takes an Unexpected Turn
Olympus Spa found itself in hot water with Washington state because it turned away a customer with male genitalia. As the spa appeals to the Supreme Court, the government is having second thoughts.
The Washington State Human Rights Commission (WSHRC) voted last month to permit businesses to set entry requirements based on genitalia when nudity is a core part of the operation—thus allowing, say, an all-female nude establishment to reject customers with male genitals without having to fear anti-discrimination enforcement from the state.
This is not a sentence you necessarily see every day. But it is the latest plot twist related to the legal odyssey that is Olympus Spa v. Armstrong, a case concerning a nude spa that has been embroiled in a yearslong, ever-crescendoing fight with the state after it declined to admit a preoperative transgender woman to its location in Lynnwood, Washington.
The legal question at issue: Did it have the right to do that? It's one that Olympus Spa has asked the Supreme Court to answer.
Haven Wilvich, who has identified as a "nonbinary trans woman," filed a complaint with the WSHRC in 2020, alleging Olympus Spa—a traditional Korean establishment that requires nudity in its pool area and thus caters to a single-sex clientele—had violated the Washington State Law Against Discrimination (WLAD). That statute bars discrimination on the basis of several characteristics, including sexual orientation, which is defined under the law to encompass "heterosexuality, homosexuality, bisexuality, and gender expression or identity."
That last part has proven thorny for the spa. When the business sued on First Amendment grounds, it fared poorly. "We are not unmindful of the concerns and beliefs raised by the Spa," wrote Judge M. Margaret McKeown for the U.S. Court of Appeals for the 9th Circuit last year. But the First Amendment, the court said, did not provide an avenue to address those concerns. The government's "objection to the entrance policy was not based on 'disagreement with the message it conveys' but rather with the practice it described—a practice that was unlawful under WLAD," said McKeown. The WSHRC, in other words, did not compel the business to change its beliefs; it was instead enforcing a law as written. Olympus Spa "simply did not challenge the statute itself," McKeown noted, "and it is not our role to rewrite the statute."
As unsatisfying as this was to many onlookers, it was also likely correct under current law. "Generally speaking, the [Supreme] Court has been reluctant to allow businesses to say, 'We get to associate with whomever we please,'" Eugene Volokh, a law professor emeritus at UCLA who specializes in First Amendment issues, told me in September. "That would spell, at least, if not the end of anti-discrimination law, at least very broad challenges to anti-discrimination law….As a libertarian matter, one could argue that there should be such a right, but the Supreme Court has repeatedly rejected any such claim."
In an appeal to the Supreme Court, Olympus Spa renews its First Amendment claim. Yet it also leans heavily into another argument emphasizing religious exemptions. The spa's owners are devout Christians and, according to their petition, "hold the religious conviction that men and women should not be unclothed together unless married to each other." Consequently, they maintain the spa should be exempt from public accommodations laws insofar as they apply to its single-sex admissions policy.
That is still not a slam dunk. The case law around religious exemptions is somewhat Wild West–esque. That it's so unsettled, though, may encourage the Supreme Court to take a look.
Washington state appears to want to avoid that, if its vote to update the law is any indication. "In the limited circumstance where a business requires nudity as a central purpose of the business," the addition reads, "such business may maintain a rule that entry to spaces where nudity is required be based on genital characteristics." After the vote, the executive director was to work with the Office of the Attorney General to officially file the rule.
That victory may be more superficial than it looks. Nor does it seem likely to deter the business from pushing forward with its appeal. "The Spa is still weighing the legal effect of the Commission's actions," says a source familiar with the litigation. "To begin, the Commission does not have the power to change state law, so it's unclear how much protection—if any—this rule change will give the Spa if a male sues under the Washington Law Against Discrimination for access to areas where the Spa's nude, female patrons congregate. In addition, the Spa's complaint sought nominal damages and is entitled to have its case reinstated to pursue that relief."
The story, while niche, has elicited some strong reactions. "This is a case about swinging dicks," wrote Judge Lawrence VanDyke of the U.S. Court of Appeals for the 9th Circuit in March. "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."
However crass the phrasing, the fact that Olympus Spa's request—that it not be forced to admit customers with penises to its all-female nude space—has led to such a prolonged battle in the courts understandably strikes many as, well, odd at best. It epitomizes how our legal architecture is sometimes ill-equipped to address commonsense, good-faith objections, even if this example is an edge case.
Yet it also serves as a memorable reminder that resolutions to such disputes often emerge not from the courts but from the people who make the rules. The commission's alteration is a start, though how much protection it really offers remains to be seen. But a more lasting change could come from the Legislature. After Olympus Spa's loss at the 9th Circuit last year, Volokh told me that the most apt remedy would be to go to the source: Amend WLAD. It should be possible, he said, to allow "places of public accommodation to segregate facilities by gender however the places define it," like by anatomy. Sometimes, alas, the threat of a lawsuit is what it takes to get things moving.