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Korean Spas With ‘Biological Women, Only’ Policy Lose Appeal
Ninth Circuit’s 2-1 Opinion Says Washington’s Public Accommodations Law May Be Enforced
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday—in a 2-1 opinion that could impact Los Angeles which has the largest number of Korean spas outside of Korea—that “biological women, only” policies of such businesses can be found to constitute unlawful discrimination based on gender identity.
Although the case was decided under a statute of another state—the Washington Law Against Discrimination (“WLAD”)—the holding could trigger actions under California’s Unruh Civil Rights Act, codified as Civil Code §51.
Senior Judge M. Margaret McKeown authored the majority opinion, in which Judge Ronald M. Gould joined. Both are appointees of President Bill Clinton.
Dissenting, vigorously, was Judge Kenneth Kiyul Lee, who was placed on the court by President Donald Trump. Lee, who was born in Korea, asserted that the enforcement action by the state of Washington discriminates against Asian Americans and, in particular, Korean Americans.
The majority’s opinion affirms the dismissal with prejudice of a lawsuit brought by the Olympus Spa, which has facilities, in Tacoma and Lynnwood, Wash.,. To avoid proceedings by the Washington’s Human Rights Commission (“HRC”)—pursuant to a complaint by a transgender woman, Haven Wilvichit, who had not yet undergone a sex-change operation—it changed the wording on its website to eliminate reference to “biological women.”
Then, it sued, seeking a “declaration that the Washington accommodation laws being enforced and applied against the Plaintiffs by the Defendants violates” their constitutional rights. Chiefly, it averred that the compelled change in wording on the website violated its First Amendment rights.
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The notice above appears on the Olympus Spa website. The Ninth U.S. Circuit Court of Appeals yesterday affirmed dismissal with prejudice of Olympus’s civil rights action against the state of Washington for compelling it to cease declaring that its facilities are available only to “biological women.” |
McKeown’s Opinion
Declaring that actions by HRC were not violative of Olympus’s First Amendment rights, McKeown wrote:
“Although the Spa’s alterations to its admissions practices necessitated alterations to its written policy, the HRC merely required the Spa to change its published entrance policy so that it accurately described those new, WLAD-compliant practices….
“The HRC’s objection to the entrance policy was not based on ‘disagreement with the message it conveys’ but rather with the practice it described—a practice that was unlawful under WLAD….The HRC did not require the Spa to modify any language from its website expressing, or withholding, its religious, social, or political viewpoints. Nor—contrary to the Spa’s representations in its opening brief on appeal—did it ‘require’ or ‘compel’ the Spa to adopt any particular views.”
The spa also argued that its policy is grounded in religious beliefs of the owners, who are Christians, and the state’s actions transgressed the Free Exercise Clause. McKeown responded:
“[T]he Spa’s religious expression is only incidentally burdened. Though we recognize that the Spa’s desire to perform acts that contravene WLAD’s mandate is motivated in part by religious belief, the HRC’s action under WLAD does not prohibit the Spa from expressing its religious beliefs.”
The jurist also rejected Olympus’s argument that the right to “free association” is implicated, saying:
“[T]he Spa is not an intimate association. The bottom line is that payment of the entrance fee is the price of admission. And any woman, except a transgender woman who has not yet received gender confirmation surgery affecting her genitalia, who can pay the fee can be admitted.”
Lee’s Dissent
Lee said in his dissent:
“Korean spas are not like spas at the Four Seasons or Ritz Carlton with their soothing ambient music and lavender aroma in private lounges. Steeped in centuries-old tradition, Korean spas require their patrons to be fully naked, as they sit in communal saunas and undergo deep-tissue scrubbing of their entire bodies in an open area filled with other unclothed patrons. Given this intimate environment, Korean spas separate patrons as well as employees by their sex.
“The State of Washington, however, threatened prosecution against Olympus Spa, a female-only Korean spa, because it denied entry to a pre-operative transgender female—i.e., a biological male who identifies as female but has not undergone sex-reassignment surgery. Now, under edict from the state, women—and even girls as young as 13 years old—must be nude alongside patrons with exposed male genitalia as they receive treatment. And female spa employees must provide full-body massages to naked pre- operative transgender women with intact male sexual organs.”
Explaining the religious aspect, he wrote:
“The entry policy also reflects the owners’ religious beliefs. Describing themselves as “traditional theologically conservative Korean Christians,” they consider modesty between males and females as a central tenet. They also believe that it would violate their faith to compel their female employees to give full-body massages to individuals with exposed male genitalia.”
Discrimination Alleged
Lee charged that the state of Washington is “wrong in how it overzealously pursued its case against the interests of protected class members—the women and girls of the state, and the Korean owners of Olympus Spa, an immigrant-founded small business.” He commented:
“Ultimately, this case is not just about the fate of a family-owned business. It is about power—which groups have it and which do not. And Asian Americans in Washington have historically lacked political clout. Washington barred Chinese people from voting as soon as it became a territory in 1853. Other restrictions (such as preventing them from testifying against whites) followed. Even in the post-civil rights era, the University of Washington has faced repeated allegations of discrimination against Asian Americans. And the Washington Human Rights Commission’s bullheaded investigation of Olympus Spa makes plain who has political power (and who does not) today.
“Make no mistake about it: the Washington Human Rights Commission has wielded its power to advance its own political agenda. The homepage of its website includes statements about national politics that have little to do with the Commission’s duties under state law: It declares that ‘President Trump is misleading the American people on diversity, equity, and inclusion and accessibility initiatives.’ The agency then links to a press release from a group of politicians attacking ‘President Trump’s executive orders’ as ‘unnecessary and disingenuous’ and condemning him for ‘baseless and offensive claims.’ All this political palaver—from an agency tasked with impartially investigating and neutrally enforcing the state’s anti-discrimination laws on behalf of all Washington citizens. It is no wonder then that the Washington Human Rights Commission exerted the full force of state power to bully members of a politically weak minority group.”
McKeown’s Response
Responding to the dissent. McKeown remarked:
“The dissent endeavors to make this case about anything but the Spa’s First Amendment claims, instead offering a political screed against the HRC’s enforcement of the statute, which relies on an unargued—and unfounded— interpretation of WLAD’s plain language. But this case has nothing to with President Trump or discrimination against Asian Americans. The Spa simply did not challenge the statute itself, and it is not our role to rewrite the statute.
“We are not unmindful of the concerns and beliefs raised by the Spa. Indeed, 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.”
Kevin Snider, chief counsel for the Sacramento-based Pacific Justice Institute which represented Olympus, said yesterday:
“We respectfully disagree with the court’s position that there are no First Amendment interests at stake for the Spa. 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.”
The case is Olympus Spa v. Armstrong, 23-4031,
On June 24, 2021, a video posted on Instagram, depicting a woman at the Wi Spa in Los Angeles’s Koreatown protesting the presence of a naked transgender male, went viral. Charges were brought for indecent exposure.
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