Ninth Circuit Forces Women to Share Nude Spaces with Men, Again

Images credit: The Daily Mail

In a deeply disappointing ruling for women and girls across the United States, the Ninth Circuit Court of Appeals has upheld Washington State’s decision to force a Korean-owned women-only spa to admit men with penises who identify as transgender. In Olympus Spa et al. v. Armstrong et al., the court ruled that Washington’s anti-discrimination law overrides the spa’s policy of allowing only female patrons, dismissing their First Amendment arguments about free speech and free association.

This ruling represents a major step backward in the Ninth Circuit (and elsewhere, to the extent that other Courts may use this case as precedent to decide other cases) for women and girls seeking privacy in intimate spaces. Once again, the court has chosen ideology over material reality, prioritizing the feelings and validation of males at the expense of women’s dignity and safety.

The Case: Olympus Spa v. Washington State

Olympus Spa, a women-only Korean spa, was threatened with prosecution by the Washington State Human Rights Commission after a complaint from a transgender-identifying male with a penis, who had been denied access. The spa's policy restricted access to “biological women” in order to maintain a female-only nude space. The spa actually bent over backwards to try to be accommodating to trans-identifying men, permitting those who had surgery so that they no longer had male genitalia.

Rather than protecting this space, the state interpreted its anti-discrimination statute - the Washington Law Against Discrimination (WLAD) - to mean that excluding men who identify as women, even those with intact male genitalia, amounted to illegal discrimination based on “sexual orientation,” a term Washington law defines to include “gender expression or identity.”

Olympus Spa challenged the enforcement on constitutional grounds, particularly First Amendment protections of free speech, religious freedom, and freedom of association. The Ninth Circuit rejected all of these claims.

The Majority Opinion: Shrinking Women's Sex-Based Rights Behind Legal Wordplay

Writing for the majority, Judge McKeown held that the spa’s exclusion of transgender-identified males constitutes illegal discrimination under WLAD. She found no First Amendment violation, asserting that the law merely incidentally burdened speech and did not restrict the spa’s religious exercise or expressive association in any constitutionally significant way.

While the Court had previously protected the expressive freedom of a beauty pageant to exclude men in Green v. Miss United States of America, it now declined to afford the same protection to a spa whose message was that women deserve privacy while nude. Apparently, expressing a traditional view of femininity through a beauty pageant is more worthy of protection than expressing a belief in bodily privacy and female-only spaces for religious, cultural, and safety reasons.

WoLF was proud to submit an amicus brief in the Green case, where our arguments were cited in the concurring opinion. We believed that the logic in Green - that women should not be forced to include men in sex-specific settings if doing so contradicts their expressive message - should also apply to women’s facilities like Olympus Spa. We are disappointed that the Court did not see it that way.

The message from the Court is clear: women may define "womanhood" only if it flatters male interests.

The Dissent: A Voice of Reason from Judge Lee

In a strong and deeply human dissent, Judge Kenneth Lee acknowledged the absurdity of requiring women and girls to share nude spaces with male-bodied individuals. He emphasized the cultural, religious, and privacy-based reasons for the spa’s policy and questioned whether WLAD, as written, was even intended to apply to transgender status.

Judge Lee laid out the sound logic behind such spaces being single-sex:

“Patrons must be nude in the communal bathhouse and sauna areas, and… remain fully nude to receive traditional Korean spa services.” p. 30

He also pointed out that the spa was not even denying access on the basis of transgender status, only on the basis of anatomy, since they did permit “post-op” males who identify as women, but no longer had male genitalia.

Importantly, Judge Lee recognized what the majority refused to admit: that compelling female spa workers and patrons to be directly and intimately exposed to the naked bodies of men with intact male genitalia under threat of legal punishment is a grotesque abuse of state power - not civil rights enforcement.

A Dangerous Precedent for Female Privacy

This decision starkly reveals the priorities of our legal system: if women ask for privacy while naked, they are bigots. But if a man demands access to a women’s locker room, he is hailed as a hero. The repeated comparison of sex-based boundaries to racial segregation is not only legally incoherent, but morally offensive. Women are not bigots for wanting sex-specific boundaries - we are realists standing up for our own dignity.

We must say this plainly: men who demand access to women’s spaces are not civil rights icons. And women who resist these intrusions are not hateful - they are brave.

The majority opinion did specify that the decision is based fully on the First Amendment arguments, and noted that the spa “may have other avenues to challenge the enforcement action” based on “the concerns and beliefs raised by the spa.” (p. 7) Hopefully the spa has the interest and resources to continue pursuing this.

WoLF’s Commitment to Sex-Based Rights and Free Expression

WoLF continues to stand with women and girls who are being silenced or punished for speaking the truth about biological sex. Whether in schools, courtrooms, or spas, our right to privacy, safety, and expression must not be sacrificed to appease ideological demands.

Our WoLF Attorney Resource Network (WARN) supports attorneys defending the constitutional rights of women, including the right to speak freely and maintain sex-based boundaries in workplaces, public accommodations, and beyond.

Stand With Us

This ruling proves just how fragile women’s rights remain. In the eyes of the law, our privacy is negotiable. Our safety is secondary. And our speech is suppressed.

But we are not going away.

If you believe that women and girls deserve the right to define our spaces, speak our truths, and live with dignity, please donate to WoLF today.

We will never stop fighting for your rights - even when the courts refuse to.