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Women-Only Naked Spa Lacks Constitutional Right to Exclude Transgender Patrons with Pensises
From Judge Barbara Jacobs Rothstein's opinion yesterday in Olympus Spa v. Armstrong (W.D. Wash.):
The Olympus Spa is a Korean spa "specifically designed for women," and the services offered there "are closely tied to the Korean tradition," meaning patrons are "require[d] … to be naked" during certain services. The facilities include "a bath area containing multiple whirl-pools, a traditional Korean body-scrub service area, standing showers, sit-down showers, a steam room, and a dry sauna." As noted, patrons are "typically fully naked" while utilizing these areas and thus "have visual access" to other nude patrons. Nor is nudity optional. It is allegedly "required for certain procedures called 'Seshin'" pursuant to Korean tradition. According to Plaintiffs, female patrons receiving a Korean body scrub "must do so unclothed," and all employees who provide those scrubs ("ddemiri") are women.
Olympus Spa maintains a "female-only policy" under which it restricts admission to women—or, more specifically, individuals who "physically present[ ] in the nude as … female." It apparently advertised this entry policy on its website with the following language: "Biological women are welcome[.] It is the policy of Olympus Spa not to discriminate on the basis of race, color, national original, sex, age, or disability in its programs or activities, as required by applicable laws and regulations." Olympus Spa thus admits transgender women only if they have "gone through post-operative sex confirmation surgery." Plaintiffs attribute the policy to their "traditional, theologically conservative" Christian values. They believe in "modesty as between the sexes" and "hold the conviction that a male and female should not ordinarily be in each other's presence while in the nude unless married to each other." See also Dkt. No. 1-2 at 4 ("Women are in a vulnerable position when they are unclothed and/or having treatment while unclothed and we seek to ensure that they feel their privacy and rights are respected. This is a biblical principle from 1 Peter 3:7, 1 Timothy 3:1-7, 1 Timothy 5:2, Phillipians 4:3, Genesis 1:27, Proverbs 31:17, Phillipians 2:3 and more."). The Jane Doe Employees accordingly refuse to perform massages or body scrubs on naked men. And Jane Doe Patron, a Christian "who frequently receives treatments at Olympus Spa," likewise "believes that men and women should not be viewing each other's naked bodies unless married to each other." …
The Washington State Human Rights Commission concluded that the spa's policy violated Washington's ban on gender identity discrimination in public accommodations, and the court held that this didn't violate the Free Exercise Clause, Free Speech Clause, or the right of intimate association:
As for their [Free Exercise Clause] claim, Plaintiffs observe that they "have the liberty to not only believe as they do about males and females in a state of undress, but they also have the right to freely exercise their religious rights, i.e., to act in accordance with their faith-based convictions." Plaintiffs allege that the Commission's enforcement of the WLAD against them, "which requires them to service nude males and females in the same rooms," forces them "to choose between violating the law or their religious convictions." This, according to Plaintiffs, imposes a substantial burden on the exercise of their religious beliefs. The Commission counters that the WLAD is a neutral law of general applicability and therefore does not run afoul of the First Amendment. The Court agrees with the Commission and dismisses this claim … .
Plaintiffs fail to plead—let alone plausibly—that the WLAD is anything but neutral. The law does not discriminate on its face, and it does not by its terms favor a particular religion or the non-exercise of religion. Nor have Plaintiffs alleged facts to suggest that the legislature was motivated by a masked intent to discourage religious exercise or discriminate against their religion. Plaintiffs have also not alleged that the Commission's application of the WLAD in this case was motivated by any "clear and impermissible hostility toward the sincere religious beliefs that motivated [their] objection," and the Court is unable to discern any facts in the record that would support such a claim … .
Plaintiffs attempt to raise a "hybrid rights" claim. In Smith, the Supreme Court excepted from rational basis review "hybrid situation[s]"—those cases that involve "not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press[.]"Plaintiffs accordingly wish to tether their free exercise claim to "either or both" of their remaining claims in the hopes that the Court will apply strict scrutiny to the WLAD. See San Jose Christian Coll. v. City of Morgan Hill (9th Cir. 2004) ("If … a law burdens the free exercise of religion and some other constitutionally-protected activity, there is a First Amendment violation unless the strict scrutiny test is satisfied[.]"). But a hybrid rights claim requires more than a bald allegation that a companion right is implicated or has been violated. "[T]o assert a hybrid-rights claim, a free exercise plaintiff must make out a colorable claim that a companion right has been violated—that is, a fair probability or a likelihood, but not a certitude, of success on the merits." Put differently, a hybrid rights claim is not entitled to strict scrutiny analysis merely because it "combine[s] a free exercise claim with an utterly meritless claim of the violation of another alleged fundamental right[.]"For the reasons discussed below, Plaintiffs fail to allege a plausible free speech or free association violation. Neither of those claims, then, combines with their free exercise claim to create a viable hybrid rights claim. The Court dismisses Plaintiffs' free exercise claim.
Note that the Washington Constitution's religious freedom provision—unlike the Free Exercise Clause—has been read as presumptively mandating religious exemptions even from generally applicable laws, but the plaintiff didn't bring that claim in this case, perhaps because plaintiffs seek an injunction, and federal courts generally can't order state officials to follow state law.
The court also rejected the free speech claim:
Plaintiffs contend that the Commission required Olympus Spa to "remove language from its website that has a viewpoint that 'biological women' are females and distinct from males." …
The law at issue here, however, is not a content-based speech restriction. The Commission correctly observes that the WLAD does not target speech—indeed, it says nothing at all about speech and does not purport to outlaw a particular idea, topic, message, or viewpoint. The WLAD instead regulates discriminatory conduct. It "imposes a flat ban" on discrimination in places of public accommodation—"one that is applied without regard to [the] content" of a business's message. And as the Supreme Court has repeatedly observed, "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others."
The compelled speech to which Olympus Spa points is "plainly incidental" to the WLAD's regulation of discriminatory conduct. The WLAD bars Olympus Spa from denying services to customers based on sexual orientation and, in this regard, it incidentally burdens Olympus Spa's speech by prohibiting advertisement of discriminatory entrance policies (e.g., one that permits only "biological women"). But that does not convert the WLAD into a content-based regulation. To borrow an analogous example from the Supreme Court, "Congress … can prohibit employers from discriminating in hiring on the basis of race," and "that this will require an employer to take down a sign reading 'White Applicants Only' hardly means that the law should be analyzed as one regulating the employer's speech rather than conduct." Rumsfeld v. FAIR … .
And the court rejected the freedom of association claim:
In their final claim, Plaintiffs allege that enforcement of the WLAD against them "would require females … to remain in the presence of naked males" and therefore violates their "freedom protected by the Bill of Rights to selectively enter into and carry on intimate or private relationships—or refrain from such relationships." … "To be exposed to the shocking and jarring visual of a penis while naked and to be viewed by someone who could become turgid due to viewing the female form would be an extreme offense and violative of the right to feel secure in one's person and association." …
The Supreme Court distinguishes between two constitutionally protected freedoms of association: the "freedom of intimate association" and the "freedom of expressive association." The former involves the right "to enter into and maintain certain intimate human relationships"—relationships which "must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme." The freedom of intimate association "receives protection as a fundamental element of personal liberty." On the other hand, the freedom of expressive association refers to the "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." It is viewed "as an indispensable means of preserving other individual liberties."
Plaintiffs raise an intimate association claim. Although the "precise boundaries of this type of constitutional protection" remain unmarked, the intimate relationships that have qualified for the protection include "marriage; the begetting and bearing of children; child rearing and education; and cohabitation with relatives." This is not to suggest that intimate association is restricted to family matters. Rather, qualifying relationships "are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship." The Court must conduct a "careful assessment" of the relationship's characteristics to locate where it falls on a spectrum "from the most intimate to the most attenuated of personal attachments."
The relationship between Olympus Spa and its customers clearly falls "outside of the category of relationships worthy of this kind of constitutional protection." It is a business—not a private club with an exclusive membership. As such, Olympus Spa is open to the public and provides services to countless (female) strangers on a daily basis. The Supreme Court has for these reasons observed that "a large business enterprise" is the type of association that "seems remote from the concerns giving rise to th[e] constitutional protection." Although Olympus Spa may not constitute a large enterprise, the analogy is still apposite: spa-goers "are not members of any organized association; they are patrons of the same business establishment. Most are strangers to one another, and the [spa] admits all [biological females] who are willing to pay[.]"
Plaintiffs emphasize Olympus Spa's female-only exclusivity and female-oriented purpose. They likewise suggest that the business is sufficiently personal and private to warrant constitutional protection because "the state of being unclothed requires the most intimate of settings[.]"But this again elides a basic, controlling fact: Olympus Spa is a business that provides services to the public. And as was the case in Jaycees, Olympus Spa does not—"[a]part from … sex"—employ any criteria for judging patrons, who are routinely "admitted with no inquiry into their backgrounds." …
The Court does not minimize the privacy concerns at play when employees are performing exfoliating massages on nude patrons. Aside from this nudity, though, there is simply nothing private about the relationship between Olympus Spa, its employees, and the random strangers who walk in the door seeking a massage. Nor is there anything selective about the association at issue beyond Olympus Spa's "biological women" policy. The Court therefore has little difficulty concluding that the personal attachments implicated here are too attenuated to qualify for constitutional protection. Plaintiffs' intimate association claim is dismissed.
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What in the world….
So much for transgender people just wanting to be left alone.
Why some strongly dislike trannies is lost on me.
Here we’re just talking about women who don’t want to massage men.
Because no means no, but they refuse to take no for an answer.
They demand “respect” but here’s their chance to be respectful in return. Instead they insist on exposing themselves to unwilling women and pretending they’re being victimized when the women complain.
You’re asking why some women might not want to be naked around naked men in a spa?
I didn’t see anything about any trans person wanting to use their services. From what I can tell in Eugene’s post, this action was initiated by the spa seeking an injunction against the state hypothetically allowing a discrimination claim from a trans woman that hasn’t undergone surgery.
The opinion indicates that one enforcement action had previously been litigated pursuant to a complaint on behalf of a transgender woman who “identifies as a woman” but “is biologically male and has not undergone sex reassignment surgery” and that the instant complaint indicates that Plaintiffs have refused service to patrons with male genitalia on several occasions.
Make it a private, members-only spa.
While I am not familiar with WA law specifically, as a general rule one cannot get around public accommodations laws just by calling one’s business a private club. For an entity to actually be treated as private, it has to not be open to the general public; “membership” must be small and exclusive.
The Boy Scouts/Dale case is still good law. If the Boy Scouts could qualify as a private club I think such can be expanded on to included places like this.
I see what you did there
What he really meant was “make it a private, no-members-only spa.”
This should be good.
Got an address? Asking for a friend……
This transgender stuff seems a shiny, swaying watch that Prof. Volokh just can’t get enough of.
Does he genuinely have the tastes of an awkward, antisocial teenager (or a backwater 90-year-old who barely cleared sixth grade), or is he just cynically lathering his carefully cultivated collection of transgender-triggered right-wingers?
This Volokh stuff seems a shiny, swaying watch that Rev. Arthur L. Kirkland just can’t get enough of.
Does he genuinely have the tastes of an awkward, antisocial teenager (or a backwater 90-year-old who barely cleared sixth grade), or is he just cynically lathering his carefully cultivated collection of Volokh-triggered boners?
These are your fans and defenders, Prof. Volokh. You should hope tenure remains effective. Think I’m kidding? Walk to the dean’s office ask indicate you will leave unless you receive a vote of confidence.
We both know why you won’t.
That describes Prof. Barnett’s condition, too. And, likely, that of a few others.
This bigotry doesn’t fly in modern legal academia, not beyond the likes of Liberty, Ave Maria, Regent, and South Texas College of Law Houston. Maybe Notre Dame a few others like it, to large degree, too.
Maybe Law Schools getting to be like Med School, where where you went doesn’t matter, other than for social small talk.
It’s not bigotry. AIDS, it’s you who is the TERF-phobic, anti-female bigot. You fail to perceive a hypocritical ideology and pathology for what it is. If gender’s wholly socially constructed, then the so-called ‘transgendered’ are simply emulating gender stereotypes (whether out of mental illness or some other psychological explanation).
The BEAUTY of this is where anti-trans legislation, including in human rights codes, BASHES UP against the rights of scientists to investigate these phenomena. This has already happened in other countries. It’s delightful! It’s the trans ideology VERSUS science. (So much for your defence of reason, AIDS.)
Want a beautiful example of the hypocrisy here? Gender and sex are to be contra-distinguished, with these folks identifying as transgendered (not transsexual). Yet the label for sexual attraction across the supposed spectrum is ‘pansexual’, not ‘pan-gendered’, as if one’s sex drive is geared towards socially constructed roles!
This trans ideology is all bullshit, AIDS. Even the run-of-the-mill gays are now wary of it (not just the centrist Andrew Sullivan types). Wake the fuck up.
Translation: I can’t say anything of substance about the latest outrage, so I’ll just attach the messenger.
You’re talking about the reverend, right? Because that’s all he does, attacks others he proclaims are backwards, for being backward. AKA having a different opinion on legal issues. No substantive argument about why his opinion his correct.
The article is about religion & the law. This is a law blog. Prof Volokh merely presented the opinion of the court, with no personal opinion or even analysis. That this so excises you, such that you feel the need to spew this ad hominem attack is a reflection on you, not Prof Volokh. So, is Rev. Arthur L. Kirkland actually a Reverend or a Troll?
I’ll let the readers decide.
Ad hominems are tiresomely juvenile, try harder.
Drown the first man in one of the tubs, an unfortunate accident of course. No second man.
How are those “civility standards” you claimed to be enforcing when censoring liberals for making fun of conservatives coming along, Volokh Conspirators?
Does even one of you have the courage or character to address this point?
Just one?
Just this once?
lol I love seeing you cry
Why would I cry? The culture war is mine. America will continue to be shaped in line with my preferences.
My country grows stronger, more modern, more successful, more just, less bigoted, less backward, less religious, less rural (fewer Americans, especially younger Americans who deserve better, stuck in uneducated, desolate backwaters), less conservative. Another Catholic church closed this week, maybe 10-15 miles from my house. Right-wingers continue to die off and are being replaced in our electorate and society by better, younger Americans who are not bigots. This occurs every day.
We are close to the point at which the average age of a registered Republican is “deceased,” especially in educated, successful communities. If conservatives want to remain competitive at the modern American marketplace of ideas, they need to change their ways (or maybe pray for a Rapture, or another miracle).
I’m not the one who hates modern America around here, like the pathetic hayseeds who pine for illusory “good old day” and just can’t understand why their racism, gay-bashing, and childish myths are no longer considered respectable.
I get to piss on the graves of conservatives’ political preferences. And I will continues to enjoy it.
The Target Tailspin and the BudLight Bust suggests otherwise.
Bud Light is the best-selling beer in America, even after some of our vestigial, worthless, obsolete bigots decided to boycott Bud Light.
The average Target store might be more economically productive than an entire rural town inhabited by half-educated, right-wing bigots.
The best part about Republicans’ bigotry is that it is going to take down most other conservative preferences with it.
and yet S-S-S-S-S-S-S tuttering J-J-J-John Fetterman leaves your Com-mutation “Package” unsigned….
AIDS, are you having a mental breakdown? Your country is losing global power daily and has discredited itself. It’s now also more openly authoritarian, policing speech and thought, and spewing low-grade infotainment propaganda across the world.
Your culture is also going to be replaced by the people who will outbreed you in America. That will include South American Catholics and Muslims. You will not succeed in ‘nudging’ them to your values over the next 2-3 generations. Your values are doomed, AIDS. Yours is an evolutionarily inferior meme.
Choose reason, AIDS. Don’t cloak yourself in delusions in the face of your country’s obvious decline.
And how many times do we need to go through this, AIDS? You accuse people of bigotry for disrespecting identities and beliefs systems that you YOURSELF ridicule as inferior, backwards, superstitious nonsense, etc. Everyone in the world can see through your hypocritical disingenuous discourse, save perhaps your fellow liberal-progressives.
As just one example, you blather on about ‘Islamophobia’, but then yourself castigate the religion and its practices!
So, how are you going to normalize its adherents’ consanguinity rates and child marriage rates, and the fact that their religio-normative system has ALWAYS been a racist, imperialist, apartheid one, AIDS? Are you going to accuse people of being ‘bigots’ or ‘ignorants’ for calling out the truth about its history (from the faith’s outset) and contemporary applications, the widespread practices of domination and oppression due directly to it? Are you going to claim that the ‘true’ Islam is that one that YOU (and your fellow non-Muslim liberal Americans) say it is, as if the world would for even a moment considers you to be an honest, let alone credible, expert on the matter?
It’s a foolish mistake to just look at red team-blue team dynamics and demographic shifts in the USA; your entire ideology and value system is dying, AIDS. Choose reason instead and wake the fuck up.
You have enough courage for everyone.
Nobody has more courage than you, Rev. You are the bravest of all.
I don’t claim that, but I appear to resemble the Volokh Conspirators in at least one way — I hang around where I am not wanted. And I do it without the crutch of tenure!
You’ve spent years regularly/daily trolling a website anonymously, spewing mostly bullshit, and you’re PROUD of that?
You need a hobby, AIDS… and a psychiatrist.
It’s a marketplace of ideas, I don’t like bigots or bigotry (which deserves to be mocked and disparaged), and I believe ‘no free swings’ is customarily the proper approach.
What do you think of the time the Volokh Conspirators devote to this rube-attracting, bigot-hugging blog?
You are unquestionably a bigot, AIDS. See my other post about that.
They’re engaged in a community discourse. You just want to troll them (you are too cowardly to say this stuff to people’s faces) and this is your past time. You are a loser, AIDS.
Oh, and please don’t give me this bullshit about a ‘marketplace’ of ideas. Your team is actively trying to criminalize ideas and to use socio-economic and technological means to suppress them too. It’s really fucking evil, and its anti-liberal.
If you don’t like bigots, you must hate yourself.
As for courage, typing anonymous trash hardly applies.
“That’s, that’s enough music for now lads, there’s dirty work afoot.”
Brave Sir Artie ran away.
(“No!”)
Bravely ran away away.
(“I didn’t!”)
When danger reared it’s ugly head,
He bravely turned his tail and fled.
(“I never!”)
Yes, brave Sir Artie turned about
And gallantly he chickened out.
(“You’re lying!”)
Swiftly taking to his feet,
He beat a very brave retreat.
Bravest of the brave, Sir Artie!
The standards are difficult to apply when nobody can shame the liberal as much as he shames himself. Or herself or theirself, whichever applies to you, Rev. Kirkland.
No, they’d drown 2-3 lesbians and things would escalate from there.
You are not dealing with “normal” people — on either side — here.
They are psychos…
Dr. Ed, what about the photo?
Oh, you were just making up stuff as usual?
Don’t you have a shred of dignity left? No?
Even Larry Fine had some dignity.
Fraud!
This isn’t the first time Bob has advocated violence in the comments, Eugene. Maybe you should pay some attention to the people you’re lathering up.
In the 1970s feminists began arguing that men only clubs be forced to admit women on the grounds that business was conducted in theses clubs and that to deny women access was to violate federal law.
The court ruled in women’s favor.
50 Years later biological males are invading women on spaces. I wonder if this is a fair trade?
The patriarchy always wins.
Schadenfreude
You have to go further back. We lost the plot on “civil rights” with the “public accommodations” provisions of the 1964 Civil Rights Act. Once you couldn’t exclude someone from your business establishment (for whatever reason occurred to you), it was only a matter of time before “Bake my cake!” and this new absurdity.
Bingo. Compromises of legal principle like that don’t just sit there, they snowball.
There’s a potential medical discrimination issue lurking in the wings here.
Adrenal glands secrete testosterone, and sometimes overdo it, to the point that someone who would have developed into a typical woman will sprout unusual and often unwanted things. https://en.wikipedia.org/wiki/Congenital_adrenal_hyperplasia
Such a woman would be denied entry under the quoted policy, through no choice of her own.
Corner cases don’t get it done . . . .
Agreed, biology is not nearly as straightforward as anti-trans folks like to believe.
I do have a lot of sympathy for the spa here though I suspect the reality is less daunting. Trans-women, particularly ones who’ve not undergone surgery, are extremely reluctant to enter communal nude spaces like locker rooms and spas. The plaintiff here is more likely an activist than someone looking to use the spa. More generally the idea of heterosexual men claiming to be trans-women to enter those spaces is largely an anti-trans fantasy.
I wonder if the spa could amend their policy to allow/ask that some patrons with medical conditions to wear towels?
There are only two types of humans, those of the type that produce large gametes, and those of the type that produce small gametes. That’s it.
What medical condition are you referring to? Having a penis?
Yes, the fakers are so rare that only a few males prisoners have faked it to get into women’s prisons and rape their fellow women, and only a few athletes have faked it because they are such poor athletes that they can’t win except against women.
But let’s assume you are right, that it is extremely rare. In that case, what harm is done by banning it?
Hmmmm…. rare enough to ban but common enough that a ban would hurt ….. what a dilemma!
The prisoner issue looks to be real and should definitely be addressed.
The athlete issue, while I don’t think male-to-female trans athletes should be allowed to compete at the elite level against females it’s ludicrous to think that they’re medically transitioning for the purpose of having easier competition.
As for this spa, maybe they should be allowed to ban, maybe not. My point is it’s a policy that doesn’t really affect anybody because it would never get exercised.
It’s ludicrous to think they’re not, when they’re not bothering with the “medically transitioning” part. “Lia” Thomas hasn’t cut off his junk, you know. He’s not THAT committed to pretending he’s a woman, he’s sticking with interventions that can be undone.
Will they take his women’s trophies away when he stops taking the estrogen?
You think a man is going to undergo hormone replacement therapy and declare to the world that he is a woman in order to win some college swim races?
You have a very strange understanding of human nature.
Why would a man who wants to be a woman undergo hormone replacement therapy? You mean cross-sex hormone therapy.
Biology in this respect is very straightforward over 4999 times out of 5000 regarding significant physical malformation of genitalia and secondary sex characteristics across both genders(No Virginia, there are not more than two genders, a bunch of people who never grew out of playing make believe do not count as a new gender).
The plaintiff here is more likely an activist than someone looking to use the spa.
I don’t see that there is anyone claiming discrimination. The plaintiff in this case is the spa. It is suing the Washington State Human Rights Commission, which ruled that its policy was discriminatory. I don’t see any reference in what Eugene posted that there was an actual complaint.
Maybe there was a complaint, and the state commission couldn’t have acted without one, I don’t know. Eugene could update his post to make that more clear.
I’m assuming there was a complaint since I don’t think Commissions like that go around giving rulings that no one asked for.
The original complainant was Haven Wilvich (born Caleb Richmond) who is male bodied and identifies as a woman with they/them in addition to she/her pronouns
The plaintiffs here (spa) were seeking injunctive relief from the original court ruling.
I don’t know why the spa didn’t also challenge Haven / Caleb on standing, as there is no evidence that they are a transwoman (other than the long hair), esp given the chosen pronouns, and the lack of steps taken for transition
“The plaintiff here is more likely an activist than someone looking to use the spa.”
Did you even bother to read the opinion?
The Spa iIS the plaintiff. Jesus.
Maybe you didn’t read it!!
The original complainant was Haven Wilvich (born Caleb Richmond) who is male bodied and identifies as a woman with they/them in addition to she/her pronouns
The plaintiffs here (spa) were seeking injunctive relief from the original ruling.
Nice progression there. Declare something that’s relatively simple and straightforward (biological sex) is complicated. Then introduce the straw man that hetero man are claiming to be trans to enter women only spaces. Something not in evidence here.
Here’s some breaking news: women don’t need to know the sexual orientation of a biological males to be uncomfortable in various states of undress around them. It’s not the comfort of trans people (surgically altered or not) that’s at issue.
By all means, I am happy to concede (as its also a biological fact) that there is a third category of sex, essentially a birth defect. Fine, we can treat them as a special case in law or regulation. That has nothing to do with the discussion here (and elsewhere), because we’re talking about people who are clearly biologically male but identify (think only their mind) that they are otherwise. Whether you think you’re a woman or no not, unless you had the surgery, a biological male still has a penis. In a restricted space like a spa or locker room, when naked, no cultural constructs like makeup or a dress to tell the difference visually.
Gender isn’t simple just because you think it is.
It’s as much in the brain as the gonads. And the brain ain’t simple. Add in social norms, and you have another layer of complexity.
Even sticking with which genitals you have won’t hack it in athletics, if you care to study up on it.
I thought it was simple once as well. But the insistence of a bunch of people to never change their simplistic view is just being closed minded.
And if they were exposing their brains, rather than their genitals, you might even have something like a point.
And another “sex” to “gender” swap to attack an argument that wasn’t made.
There is no 3rd category of sex. Genitalia are secondary characteristics.
I usually say this in response to Short Circuit, but I’m continually amazed at how few judges end up murdered.
Because bloody-minded assholes like you are cowards.
No, they have good security.
I went to high school with the son of a Federal judge — he mentioned the plastic explosive removed from the tailpipe and the rest. Apparently people try — or they did — and we have some competent people working for our government.
Another convenient story from Ed!
Most conservatives, in my experience, are all-talk cowards.
if there’s anything Coach Sandusky has, it’s “Experience” (committing sexual assaults)
Woody Harrelson’s dad was no coward.
But I guess we are kind of damned if we do and damned if we don’t: if we don’t execute the judge that screwed over the korean spa we’ve never been to, and wouldn’t be allowed into anyway then we’re cowards.
And of course if we do we are murderous insurrectionists that need to e rooted out to the last man.
Look, you’ve got judges who routinely do utterly outrageous things to people who have the bad luck of being before them, and some percentage of those people are going to not be nice folks. Thus my surprise at how seldom judges get murdered.
Sarcastr0 13 hours ago
Because bloody-minded assholes like you are cowards.
Sacastro – that is a pure ass-hole comment even by your standards
Try to act like an adult
That you’re ticked off at my reaction to Brett posting about more judges getting assassinated does not reflect well on you.
Sacastro – that doesnt change the fact that your comment was just an asshole comment from you.
Which is why I muted him. Try it, the feature works well.
I get spun up about talking when people Just Ask Questions about political violence. It’s an asshole move, and it’s also keyboard warrior cowardly.
Do you disagree?
If your issue is that I sank to Brett’s level; that could be a fair put. I do think about my level-setting here some, and how I should tune it.
Sarcastr0 37 mins ago (edited)
I”f your issue is that I sank to Brett’s level; that could be a fair put. I do think about my level-setting here some, and how I should tune it.”
Brett is vastly above your level – The only one that has stooped to such a low level is you and nige
Then I’m perplexed.
Are you OK with Brett invoking political violence, while dinging me for my language?
That would seem to miss the forest for the trees.
Just change the sign to “No Penus Allowed”. Since the penus does not determine a person’s sex or orientation it isn’t discrimination.
Unless of course someone decides it’s an ADA claim and the penus is a disability.
That never works, some smart-ass (umm, like me) adds a “W”
and then it’s
“Now Penis Allowed” (watch out, you’ll poke your eye out)
Frank
That wouldn’t work in Massachusetts, where the state ERA was determined by the SJC to make Sex a protected class like race or religion — this was the gay marriage decision, and the lesbians didn’t listen when I said that they might not like the actual consequences of that decision…
I’m worried (sorta) that you’ve gone round the bend.
Do you have a visiting nurse?
This absolutely wonderful. I can’t wait for all those Democrat women in Washington to get a full erect dose of progress.
Just like their juvenile daughters are getting in their government school locker rooms.
lmao eat shit Democrats
Be Careful what you wish for, it may splooge all over you.
The Korean women who are the victims probably didn’t vote for the Washington government.
Also Washington has mail in voting, so cheating makes elections a farce anyway.
They should vote with their feet while Democrats still allow it.
They should go on offense against Democrats victimizing them and rally all Koreans in America to take every legal action available against Democrats’ evil.
Mail in voting is extremely secure.
We have it in OR. I challenge you to explain how I could cheat.
Make this twit of a judge share showers with dudes . . . .
thug government backed up by the federal judiciary
Say Hello to my Lee-tle Friend!!!!!!!
Oh, my! And he’s tilting northward, this morning. You *know* how bad you are at hiding how you really feel.
Damn. Phyllis Schlafly was right. Back in the 70s she “argued that the ERA would take away gender-specific privileges enjoyed by women, including ‘dependent wife’ benefits under Social Security, separate restrooms for males and females, and exemption from Selective Service.”
They’ve managed two of those four without the ERA. How long before the other two happen?
https://en.wikipedia.org/wiki/Phyllis_Schlafly#Opposition_to_Equal_Rights_Amendment
Of course she was right. That’s why the ERA failed, reasonable people could see what was coming if it was ratified.
The mistake was thinking they would allow it not being ratified to matter.
Why do disaffected, autistic birthers figure they can understand reasonable people?
Why did Jerry Sandusky’s crimes go undiscovered for decades??
Why do baby-killing liberals like you spout hateful speech & then try to pretend you’re “reasonable”. I understand the attraction of trying to spread disruption & confusion amongst your political rivals, but you might consider backing off on the vitriol a bit.
It’s interesting that a very similar case in Canada in 2019 came to the opposite conclusion:
https://www.cbc.ca/news/canada/british-columbia/transgender-woman-human-rights-waxing-1.5330807
“…gone through post-operative sex confirmation surgery…”
Genuine question. What is meant by post-op sex surgery of this type? I mean, I understand the principle of singling out people who have gone through sex confirmation surgery. That makes logical sense, or grammatical sense, to me (regardless of whether or not I then agree with any legal conclusions).
But, once you’ve had the sex confirmation surgery, what sort of second, later (ie, post-op) surgery is the court talking about here??? Or is “post-op sex conf. surgery” a different thing than regular sex. conf. surgery?
I feel like I’m missing something basic.
I wrote that off to sloppy writing or editing.
I keep trying to find people who don’t introduce ambiguity by adding extra modifiers. I try and I try and I try and I try, but … I can’t get no satisfaction.
“sex confirmation”? Why are they conflating “sex” with “gender”?
When men in Massachusetts won the right to go into women-only fitness facilities the legislature changed the law to allow discrimination. This was before sex changes were trendy so the question “what if he feels like a woman?” didn’t come up.
But that was before the Gay Marriage decision — which is in the state CONSTITUTION and hence — well read the decision again, and presume that Marshall actually had a basis for her decision…
Men are men.
Women are women.
They can’t change from one to the other.
The earth is not flat.
There is water at the bottom of the ocean!
Same as it ever was.
Oh, Washington. When you’re further left wing than a Canadian human rights tribunal, you know you’re off the deep end.
Laboratories of democracy. We shall see how this turns out once few get out of the hypothetical.
Needless to say, with an actual fact pattern that could be sympathetic to some, many on here are unable to restrain themselves from seizing the moral low ground.
Yup, and they’re allied with the guy in this case. The moral low ground being imposing the sight of your junk on people who don’t want to see it.
You went straight to talking about political violence.
No, legal violence.
The courts regularly, casually, screw people over. I’m marveling at how rarely the people who got screwed over go postal on them.
It says worlds about how most people are not inclined to commit violence under even extreme provocations. Murderers genuinely are aberrant individuals, almost everybody won’t kill even if you treat them like dirt, ruin their lives.
Some people deserve to be treated like dirt. They are customarily too dumb to recognize it, though.
I know, Black People, don’t tell them though.
It says worlds about how most people are not inclined to commit violence under even extreme provocations.
That’s not really the tone of your comment, is it? In response to this opinion you disagree with, you didn’t marvel at how people are law abiding, you thought about how you’d expect violence.
That’s an insult to your fellow Americans, and says bad things about your own internal norms.
Too many on here think about murder, even as they will never act.
We are living in a 20th-century dystopian novel.
Only if you choose to dwell on stuff that makes you mad.
“But not if you ignore all the bad stuff!”
That’s not what ‘dwell on’ means. It’s more like ‘only if you ignore the good stuff.’
Life in America is pretty great, actually.
Cook some good food, watch some good shows, hang out with some good people. Heck, post crazy stuff on here – it’s your right!
It could be better, of course. But we’re closer to utopia than dystopia (not that we’re close to either!)
Life in America is pretty great in some areas, but it is trending dystopian in other areas, and by “trending”, I mean moving so fast it’s leaving a vapor trail.
And the immediate case is a clear example of that. Even a few years ago, a guy exposing himself under these circumstances would have ended up with a sex offender conviction. Now it’s the people trying to stop him who are in legal jeopardy. Things are moving insanely fast in an insane direction.
And poll results like this aren’t exactly encouraging. That’s not enough to make things like that politically popular, but in another decade, who knows?
Yeah. 1984 with trannies. “You must love Big Sue!” Even scarier than the original.
So according to this judge, no sex segregated facilities period.
Imagine if this logic was applied to high school locker rooms.
These transgenders will not stop until they’ve attacked every institution we have. The solution is not to ban them from public places. The solution is to put them in concentration camps.
“The solution is to put them in concentration camps.”
Oy! Just curious— ever been to Manzanar?
No. But interning the Japanese was the right thing to do.
You should go sometime. Might make you think twice about such things. Or maybe not!
Of all the huckleberry hot takes, “Korematsu was correctly decided” is one of the least surprising, to be honest.
The fact is, there was a reasonable basis to think that some Japanese descended Americans would be traitors. During war, you have to make sacrifices. And ultimately, the country was intended as a European nation, and thus, the interests of any other groups should always yield to the interests of whites.
“And ultimately, the country was intended as a European nation,“
Text, history and tradition indeed! Which part of the declaration was that in?
“the interests of any other groups should always yield to the interests of whites.”
Continue to be amazed at the trajectory of this project! Was it always like this? I don’t remember it always being like this.
This was my read as well. This has nothing to do with trans rights, it’s just “sexism.”
But unlike in the race context, “separate but equal” has always been the norm for “intimate” facilities like this spa. So they should be fine if they do a separate area for biological men.
That’ll fix it. “If you have a penis, you go to the penis-havers side, and get your spa treatment by other penis-havers.” Sure, those penis-having “women” will definitely agree to that…
They won’t agree, but they’ll lose.
That train has already left the station – https://www.dailymail.co.uk/news/article-12000615/Wisconsin-high-school-fire-trans-woman-18-exposed-genitalia-freshmen-girls-shower.html
It does apply to high school locker rooms.
Of course the club shouldn’t be required to admit pre-surgical trans women. But, the remedy is to fix the statute (or its interpretation). I’m not seeing how the Constitution mandates the correct result, just as it wouldn’t if the law required coed nude clubs.
This is of course the correct take.
They’re women, aren’t they? Why should their rights as women be denied merely because they haven’t had elective gender-conforming surgery?
Privacy. Like it or not, our society has developed a privacy right where one natal sex doesn’t have to see the genitals of a person of the other natal sex.
I was trying to be sarcastic, but on this topic above all others, sarcasm is extremely difficult to tell from the actual party line.
That’s a reasonable conclusion, if you’re starting from a modern conception of how much power the government was given: The general police power has swelled beyond recognition.
Based on the founding era conception of government power? Not so much. But, of course, we’re talking 9th amendment, then, and the courts flatly refuse to enforce that.
What unenumerated right exactly do you think the court is failing to enforce here?
The right to direct your own affairs as you please, basically.
That’s pretty all-inclusive! Does cheating on your taxes count as directing your own affairs as you please?
You need to come up with something a little more narrowly tailored.
Barbara Jacobs Rothstein.
Are there any Democrat Party New York Jews who aren’t disgusting traitors?
You are lucky you’re not a liberal or libertarian, hoppy . . . if you were anything other than a conservative, Prof. Bernstein would have been here to berate you already.
Dennis Prager is a New York Jew. And he used to be a Democrat. He talks about this crap on a daily basis. (He condemns it, obviously.)
For every Dennis Prager, there are 100 George Soroses.
Did a Jewish girl turn down your sexual advances?
Or was that a Jewish boy?
No. The moment I realized what Judaism was, I abandoned it and exclusively dated non-Jews. My wife is a non-Jew, and very few people actually know of my background.
It probably drives Prof. Bernstein batty, seeing all of this anitsemitism but figuring he can’t object to it because the bigots are his fellow conservatives. Let’s hope a liberal says or does something that can plausibly be labeled antisemitic (or anything close to it) soon so that Prof. Bernstein can relieve that pressure. It’s probably bad for his health.
Well, the good news is, I don’t think conservatism is intrinsically antisemitic. On the other hand, the “woke” ideology of (the people you call) “liberals” and “progressives” … just might be. These guys think it is:
https://jilv.org/
I’m allowed to harbor negative views of Jews, as I used to be one.
You weren’t chosen for a reason.
Thankfully. I just wish Jews would stop trying to force it on me.
I mean, this is ludicrous. What the actual fuck, lol.
That’s why women can’t have nice things.
What’s going to happen is either this korean spa is going to close, or it’s just going to morph into another knob job massage shop, because all of its existing customers are going to quit coming, and there will be a whole new clientele to replace them.
They are likely to win if they persist fighting.
If they do ultimately lose, they should reorganize their business as a religious ministry.
A man who knows he is a man can ceetainoy file the same lawsuit.
If so, then isn’t the whole “trans” thing a red herring here?
But you are because the only gender they truly identify with is authoritarian.
There are two clothing-optional spas in my town that are open to all. And don’t even get me started on the hot springs out in the woods!
There are a few in my area as well. They’re open to all, EXCEPT that the locker room and hot tub area (where the sugar scrubs are also performed) are single-sex only because that’s where you’re required to be naked. The other areas are not naked and are mixed-gender. While I consider myself fairly open-minded and have always opposed the transgender bathroom bans, I would still balk at having people who obviously appear male walking around the female area. I wouldn’t be comfortable being naked in that area and would skip any of the services involving it. The naked area is uncomfortable enough for many people without adding the opposite sex. The spa is going to lose a lot of clients over this.
The Free Exercise clause is not a get out of jail free card. As the Supreme Court opined during the nineteenth century:
Reynolds v. United States, 98 U.S. 145, 167 (1878).
Did SCOTUS get it wrong there?
I’m more inclined to support the liberals on the Warren and Burger courts and their balancing approach. That would achieve the same anti-human-sacrifice result.
“Transgender Patrons with Pensises”
What’s a Pensis?
I tried to guess, but it turns out I was wrong.
https://en.wikipedia.org/wiki/Pens%C3%A9es
Change ‘Women-only’ to ‘XX-only’?
I consider myself to be “pro-trans” in a libertarian sense of the term. I’m looking for a reasonable compromise, not an “all or nothing.”
I think part of such compromise should mean that ciswomen shouldn’t be subjected to viewing a pre-op or non-op transwoman’s genitalia. Restroom aren’t a problem as long as they have stalls.
Even in common changing rooms, proper etiquette without the need for an extant rule suggests that such a transwoman shouldn’t expose genitalia. You could always just cover up with a towel or use a stall in a common changing room.
One of my TERF friends (and I don’t use that term pejoratively) says she doesn’t have a problem sharing common rooms with MTF provided that they GO THROUGH THE BOTTOM SURGERY AND GET THEIR POTENTIAL WEAPON removed.
Boy, you’re a Potential Weapon
You should start a movement called Eat Us Last. You can signal to totalitarians that you’ll go along with them and in exchange you don’t want to be killed until later.
“I consider myself to be “pro-trans” in a libertarian sense of the term. I’m looking for a reasonable compromise, not an “all or nothing.””
You know you’re still literally Hitler, just as if you said that men were men and women were women.
So please explain to me how IN LAW your compromise works if Tran women (not transwomen… bigot… *joking* but they aren’t )… if trans women are women & trans men are men?
The spa is a place of total nudity for women, so that includes transwomen given “gender” descrimination statutes.
There is no cutting the baby unfortunately. As a lesbian my community is learning this the hawed way. We cannot have lesbian only events.
This has nothing to do with the newly invented category “ciswomen”
The spa is open to ALL biological women (aka natal females) regardless of whether their sense of self is congruent with their biology. The spa is open to women who are gender non conforming and women who “feel” male.
They tried to distinguish between biological woman and biological men. Not between the meaningless category “ciswomen” and the undefined category “trans women”
Clown world we live in.
In the past the husbands of the Korean women would toss the tranny. No police.
People being big mad aside, it’s an interesting case.
It is interesting to see that our government is more religiously motivated than reality based.
Is this the part where we’re supposed to pretend like the same courts who ignored the First Clause of the First Amendment and two hundred years of case law for two years are suddenly legitimate and their rulings should be respected?
Right on Haven Wilvich! Good for her. I hope she sues the pants out of them and wins!
“I realized something important today. I’m more woman than any TERF will ever ben because I am an intentional woman whereas they are only incidental.”
Damn Ferocious and bold! Dropping truth bombs!
Right, you are MORE woman than cis/het/front holes! Don’t let any else tell you different. . . I stand with Haven Wilvich because she IS a real woman! Cope and seethe cis/hets!
Q;
1. did Judge Rothstein conflate sexual orientation with gender identity i that ruling?
2. Could the spa have challenged
Haven Wilvich (née Caleb Richmond) on standing?
Ie what is the evidence they are a transwoman given they have taken no steps to transition , and given their chosen pronouns include they/them?
3. If people who identify as non-binary are all now included in ALL services and rights defined by sex (Eg equal pay, disabled patient’s rights to same sex intimate care, prisons) can they ALWAYS pick and choose which sexed side they are on at will depending on the service?
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