Women-Only Spa Seeks Re-Hearing In Ninth Circuit Over Admission Of Transgender-Identifying Men

Authored by Lear Zhou via The Epoch Times (emphasis ours),

SAN FRANCISCO—The Olympus Spa, a women-only Korean-style spa in Washington State, which was forced via legal means to allow male customers who identify as women, is seeking re-hearing in the U.S. Court of Appeals for the Ninth Circuit.

The case is centered on a state law that bars discrimination on the basis of sexual orientation. Many of the services provided at the spa require nudity, and all the onsite staff are female. Allowing a person with male body parts to partake of the services would violate the Christian beliefs of the spa owners, they said.

A May 29 Ninth Circuit opinion by a four-judge panel had already dismissed the spa’s claims that its First Amendment rights had been violated, affirming the decision previously made in a lower court.

“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 opinion states.

The re-hearing request centered instead on an “expressive association claim,” according to a petition document filed on June 24 and obtained by The Epoch Times.

“We respectfully disagree with the Court’s position that there are no First Amendment interests at stake for the Spa,” Kevin Snider, lead attorney of the Pacific Justice Institute representing the plaintiffs, said in an email to The Epoch Times. “Safeguarding the dignity of unclothed women in their intimate spaces implicates the right to association and the free exercise of religion. We are committed to pressing forward to vindicate those rights.”

In late 2020, a man complained to the Washington Human Rights Commission (HRC) that the spa was violating Washington’s Law Against Discrimination (WLAD) by refusing service to man who identified as a transgender woman.

The spa owners refused to change their admission policy, which they said was rooted in Korean tradition and Christian beliefs.

The owners, employees, and patrons of the Olympus Spa launched a lawsuit against the HRC executive director and its civil rights investigator, alleging that the state was infringing on their First Amendment rights to freedom of speech, free exercise of religion, and freedom of association.

Washington District Court Judge Barbara Jacobs Rothstein dismissed the case on June 5, 2023.

Usually public accommodations laws, like Washington State’s anti-discrimination law, must give way where such laws impermissibly burden constitutional rights, according to the Ninth Circuit opinion.

“But this is not such a case,” Ninth Circuit Judge Margaret McKeown wrote in the opinion. “The HRC’s action under WLAD does not impermissibly burden the Spa’s First Amendment rights to free speech, free exercise, or free association.”

The re-hearing petition document states that the Ninth Circuit opinion by the four judges omitted or overlooked the “prominence of the advancement of traditional Korean culture.”

“This position improperly constrains expressive association because that liberty interest includes ‘associat[ing] with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends,’” the petition states, adding emphasis to the word “cultural.”

The Ninth Circuit ordered Washington State to submit a written brief in response to the re-hearing petition on July 17, according to Snider.

“The Ninth Circuit will decide if it will re-hear the case,” Snider told The Epoch Times. “If they decide not to re-hear the case, then we will file with the Supreme Court.”

One of the defendants, Andreta Armstrong, executive director of the HRC, told The Epoch Times via an email, “I decline to comment on ongoing litigation involving the agency.”

Sun Lee, co-owner and president of the Olympus Spa, told The Epoch Times, “I believe that our case should actually go to the Supreme Court, and then it should be measured by the Constitution, our freedom of speech, and also freedom of religion.”

“I’m very worried at this point, how this society goes,” Lee said. “But I’m really hopeful that the Supreme Court or the higher court [will] make a right decision.”

Lee said he has suffered from stress in the past four years since he received a letter from the HRC. He said they have to deal with emails and phone calls related to the issue on a daily basis.

“The model and foundation of our spa is for women to relax and forget about their lives, their daily worries, and they shouldn’t be judged,” Lee said. “But this is under threat.”

He said the spa still does not admit men who identify as transgender women.

The controversy has affected the business, he said. Yearly sales, more than half of which come from traditional Korean scrubbing services, have diminished, said Lee, “not by a lot … but a certain percentage.”

“I’m really puzzled and struggling with why these simple kinds of boundaries cannot be sustained. And this is not due to hatred or prejudice; this is more like a biologically and psychologically valid response rooted in safety and dignity and privacy,” said Lee.