The right outcome, the wrong conversation: Olympus Spa and the limits of clinical justice

As Americans, we reject the idea that some people should navigate public life as a disfavored caste, unable to enter a motel, restaurant or spa because they belong to a politically unpopular group. For transgender people in 2026, laws and policies aimed at making ordinary public life impossible are systematically dismantling the promise of equality. Fortunately, nondiscrimination protections still exist in most states and they are worth defending. When a transgender woman tried to enter a Korean spa and was turned away, the Washington State Human Rights Commission said it was unlawful discrimination. The court, rightly so, agreed.

The 9th Circuit reached its outcome in Olympus Spa v. Armstrong, upholding Washington's nondiscrimination protections. But the opinions in this case, taken together, reinforce a zero-sum frame that leaves everyone less equipped to have a real conversation about what is actually at stake.

Protecting transgender women's right to equality and protecting women's dignity in intimate spaces are not mutually exclusive aims. But you would not know that from reading the opinions in this case.

The clinical prose employed by the panel majority, as well as the majority opinion declining to rehear the case en banc, leave the emotional terrain of the case entirely unoccupied. The very real discomfort and vulnerability that some women would feel seeing external genitalia in an intimate space designated for women deserves honest engagement. These opinions do not provide it.

The litigation strategy is revealing. Represented by attorneys advancing a coordinated national litigation strategy aimed at invalidating nondiscrimination protections everywhere, the spa raised sweeping constitutional claims in response to the Human Rights Commission's enforcement action. And Judge Lawrence J. VanDyke, dissenting from the denial of rehearing en banc, wants you to think this case is about something other than the lawful application of nondiscrimination law. He opens with the phrase "swinging dicks" and structures his entire argument around that image.

In the majority opinion, VanDyke's colleagues criticized his vulgar language without engaging the vulnerability he gave voice to--leaving him unchecked in his dishonest analysis.

VanDyke's dissent has been compared to the tradition of plain accessible judicial writing associated with Judge Richard Posner of the 7th Circuit, who argued that courts serve the public best when they write in language that ordinary people can understand. But VanDyke's vulgarity does the opposite by manipulating the truth. He constructed a zero-sum frame where protections for transgender women necessarily come at the cost of women's privacy, advancing a false premise belied by the research: that transgender women pose a predatory threat in women's spaces. That characterization is not only unsupported by evidence--it is dangerous. Transgender women are disproportionately victims of violence, and the false claim that they are predators contributes directly to the climate that puts them at risk.

VanDyke's sleight of hand follows a deliberate path: he acknowledges that women's discomfort and vulnerability in a nude space are real and raise serious concerns, then assumes that the mere presence of transgender women necessarily equates to discomfort, and finally implies, unconscionably, that women are unsafe if they are in a private space with transgender women. His conclusion lacks any support. In addition to casting aside the humanity of transgender women, the dissent fails to conceive of policy that could both comply with the law and protect the interests of women who are uncomfortable.

The panel dissent by Judge Kenneth K. Lee also fails to acknowledge the humanity of transgender women, instead opting to use masculine pronouns to refer to the complainant and to disparage her by referencing information from her personal blog. Lee does describe in useful detail the Korean cultural tradition at stake, information the panel majority leaves entirely untold. Korean spas are not like conventional Western spas. They are rooted in centuries of tradition, incorporate nudity in communal bathing and treatment areas, and include intimate full-body treatments performed by trained practitioners in open spaces. That tradition is precisely what made this case different from a hotel refusing to rent a room or a restaurant refusing to serve a meal. The panel majority's failure to engage with what was at stake for the spa owners--disappointing given that the only Korean American voice on the panel was the one who supplied that context--is precisely what opens the door for VanDyke's incendiary dissent.

Court opinions do more than simply resolve legal disputes. They help shape how the public understands the issues involved in those disputes. The right outcome and the wrong conversation are not unrelated. The majority and the dissents never engaged each other honestly, and so the conversation outside the courtroom continues to be impoverished. Zero-sum framing has been the foundational logic of opposition to nondiscrimination protections throughout the history of civil rights law, premised on the idea that equality is a finite resource that must be taken from one group to give to another. But dignity is not a zero-sum game.

The difficult task for advocates is to make space for the humanity of everyone involved--the transgender women who want to navigate public spaces free from discrimination, and the women whose sense of privacy and bodily safety is shaped by social norms that we cannot expect them simply to discard. Too often, we treat people's concerns as prejudice to be discounted rather than as human experiences deserving of honest engagement. There is an opportunity for transgender rights advocates to do more. Zealous advocacy does not end with winning in court. Zealous representation also requires doing the harder labor of genuine engagement, listening to people whose concerns we have too often dismissed, finding the shared ground that makes durable solutions possible, and recognizing that meeting people where they are is not a retreat from our clients' cause but its most powerful expression. If we can learn anything from VanDyke's dissent, it is that the urgency of this work has never been greater.