“Swinging Dicks” in the Ninth Circuit: Two new federal cases on gender identity in the law
Olympus Spa v. Washington
The Ninth Circuit affirmed last year’s dismissal of Olympus Spa’s First Amendment challenge to enforcement of the Washington Law Against Discrimination (WLAD) against its “biological women only” admissions policy, holding that the spa’s policy is unlawful gender‑identity discrimination under WLAD and that enforcing WLAD here does not violate the spa’s rights to free speech, free exercise, or association.
Whatever the specifics of the legal reasoning of the majority opinion, suffice it to say that the man won notwithstanding the rights and objection of women. The tradition and cultural importance of female only spa experiences for women and girls is important. In this case, a mother was sharing the experience with her 9-year-old daughter. Female-only environments are critical to protect the safety, dignity, and privacy of women and girls.
Unless, of course, a man wants in. The majority of the court held that preserving the right of men who “identify” as women, to enter female spaces and be naked in front of the women and girls is more important.
There was a dissent - an excellent dissent - characterizing this case appropriately as one of “swinging dicks.” The majority did not like that at all and described the language as “vulgar,” “crude,” and “juvenile,” emphasizing decorum and public trust in the judiciary.
So the majority does not like "swinging dicks” in court opinions.
And they only had to read about them! Too bad the majority does not see the irony in objecting to just a description of what the women and girls actually had to experience in the world!
USA Health Transgender v. West Virginia
On March 10, the Fourth Circuit Court of Appeals held that West Virginia’s Medicaid exclusion for “transsexual” or “sex change” surgeries (i.e., surgical treatment for gender dysphoria) is lawful under the Equal Protection Clause and § 1557 of the Affordable Care Act, applying the Supreme Court’s recent decisions in United States v. Skrmetti (2025) and Medina v. Planned Parenthood South Atlantic (2025).
What is interesting in this case, as applied to women’s rights, is that the court frames Geduldig v. Aiello and Skrmetti as controlling: excluding coverage for a condition that only one group experiences (pregnancy, gender dysphoria) does not necessarily create a sex or transgender-status classification. There is an established history of pregnancy discrimination being viewed as a form of sex discrimination even if not explicitly stated, but objections to even seeing pregnancy as a sex-specific condition put such legal analyses at risk.
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