The 9th Circuit sacrifices privacy for political correctness

This piece is about "swinging dicks." More precisely, it is about a 9th Circuit majority panel that chose to issue a sweeping constitutional ruling consecrating transgender ideology as the civil rights cause du jour. If a Los Angeles Times article ("Polyamorous relationships closer to legal protections," Mar. 22, 2026,) is any indicator, 9th Circuit moral relativists will soon be safeguarding the rights of polyamorists against challenges by antediluvian Christians.

Even more precisely, it is about Judge Lawrence VanDyke's unprecedented use of graphic language to expose the majority's Pharisaical formalism in a case that makes a mockery of public accommodation laws--turning a statute designed to prevent discrimination into an instrument of discrimination against women, Korean Americans and Christians. (Full disclosure: I represent a client with a matter pending before the Ninth Circuit and have decided to express these views without knowing what judges will be drawn for my panel. Judge VanDyke previously sat on a panel that ruled in my client's favor.)

On March 12, 2026, the 9th Circuit denied rehearing en banc in Olympus Spa v. Armstrong, No. 23-4031, a First Amendment challenge to Chapter 49.60 RCW, also known as the Washington Law Against Discrimination (WLAD) by the Christian owners of two Korean spas against Washington State's Human Rights Commission.

Consider, for context, the recurring spectacle in which parents appear before school boards and read aloud passages from books shelved in public school libraries--titles like Gender Queer and Flamer--only to be cut off for using "vulgar" language. The same words institutions defend as suitable for children become intolerable when spoken aloud in public. The content is acceptable--until it is heard.

Enter Judge VanDyke, who comes out, er, swinging: "This is a case about swinging dicks." The Christian owners of a women-only nude Korean spa "understandably don't want them in their spa," nor do their patrons, "some as young as thirteen." If the phrase shocks in print, good--it mirrors the far more jarring reality the law now requires women to confront in practice. Twenty-seven judges attacked VanDyke's language. None answered his argument.

VanDyke's profane table-turning accomplishes at least four things. First, it does what no dry legal argument ever could: it makes people actually read it.

Second, it exposes what the ruling actually requires: women and girls, fully nude in communal spa spaces, legally compelled to share them with biological males who have made no surgical alteration. Female employees must provide full-body massage to persons with intact male genitalia--or lose their jobs.

Third--and VanDyke says this explicitly--enough is enough. "Sometimes it feels like the supposed adults in the room have collectively lost their minds. Woke regulators and complicit judges seem entirely willing, even eager, to ignore the consequences that their Frankenstein social experiments impose on real women and young girls."

Without engaging a single substantive argument, the majority reflexively recoiled at VanDyke's "vulgar barroom talk," just as school board officials recoil when the obscenity they shelve for children is read back to them in public. The irony appears to have escaped them entirely: it is considerably more offensive to compel women and girls to share a nude spa with biological males than it is to say a naughty word in a judicial opinion. The majority took the bait.

The word "woke" appears to be entirely justified here. A court that elevates transgender orthodoxy above the bodily privacy of women, the cultural heritage of Korean immigrants, and the sincere faith of Christian business owners--while congratulating itself for its moral sophistication--is woke by any honest definition. The majority provoked this dissent. It is in no position to complain about the temperature in a kitchen it set on fire.

The fourth thing VanDyke's dissent accomplishes is the most significant, and what the majority was most determined to conceal: it strips bare the altar at which it actually worships. On that altar, the majority sacrificed three independently protected classes to the civil rights cause du jour. This is not merely ironic--it is legally incoherent. WLAD was enacted to protect victims of sex, national origin and religious discrimination. The majority's ideologically driven ruling victimizes all three in order to elevate a fourth.

Protect women? The decision subordinates women's privacy right to the preferences of a biological male, who, incidentally, never even presented himself at the spa.

Protect national origin? The Lees' five-hundred-year-old Korean cultural tradition--the jjimjilbang--is dispensed with in passing, despite national origin being an explicitly protected category. As Judge Lee (no relation to the Lees) observed in his dissent, the ruling had the practical effect of discriminating against Asian Americans who, in Washington, "have historically lacked political clout"--making the majority's dismissal of the national origin dimension of this case even harder to justify.

Protect religious autonomy? The Lees' sincere Christian faith convictions about mixed-sex nudity are ruled a rounding error under toothless rational basis review.

Compounding the irony, the protected class the majority elevated above all three is not even implicated. Olympus Spa did not discriminate on the basis of gender identity. It admitted post-operative transgender women without restriction. It excluded only those who retained male genitalia. The criterion was anatomical, not identity-based-- not discrimination "on the basis of" gender identity under any honest reading of WLAD. Judges Collins and Tung expose this circularity. The majority never answer it.

But the majority's legal failures run deeper still. Perhaps too busy drafting its recrimination over "vulgar barroom talk" to read the dissents carefully, the majority also bypassed the threshold question it was independently obligated to ask. Under the constitutional avoidance doctrine--a court's independent obligation to resolve dispositive statutory questions before reaching constitutional ones--the majority should never have reached the First Amendment question at all. Had it asked whether the Spa's anatomy-based policy violated WLAD, the answer is no, and the constitutional Pandora's box never opens.

This is not VanDyke's first rodeo. The left has been gunning for him, a Trump appointee, since before he took the bench. The ABA rated him "not qualified" via an evaluator later found to have donated to his political opponent. He holds a theology degree earned summa cum laude and a Harvard law degree earned magna cum laude. So much for not qualified. Heck, I don't even register on that metric. Within months of his 2019 confirmation, Judge Collins, another Trump appointee, was also accused of "combative" language and failure to follow court rules. He is a Harvard undergraduate and Stanford Law Scalia clerk of unimpeachable credentials. See a pattern?

The Pollyannish handwashing over VanDyke's provocative language yielded this terse response from two of the judges: "We are better than this." With respect--no, you're not. If you were better than this, you would have stopped this abomination. You would have exercised moral clarity. And judgment. While the majority sanctimoniously fusses over VanDyke's rhetoric, it would do well to listen hard to his point. The idea that biological males have a protected civil right to expose themselves to women and girls in a private women's spa is contemptible, indefensible and downright barbaric--non-negotiable. Nothing about the majority opinion reflects any claim to moral superiority.

The Supreme Court should take this case and restore to a Korean immigrant family their right to run their business, share their cultural heritage, protect their patrons and honor their faith. And the 9th Circuit majority should be told to ... well, I'll leave that for Judge VanDyke to express.