Female-Only Spa With Compulsory Nudity Must Admit 'Transgender Women' With Penises: Judge

A sign of segregated male and female restrooms. (thitiwat_t1980/Shutterstock)

A spa that for years has served only women must admit men if they claim to be women, a judge has ruled.

The constitutional rights of the owners, employees, and patrons of the Olympus Spa in Washington state weren't infringed when officials in the state ordered the facility to provide services to "transgender women" with male genitalia, Washington District Court Judge Barbara Jacobs Rothstein said in a June 5 ruling.

The spa was described by its owners, who are Christian, as being designed based on the belief that "a male and a female should not ordinarily be in each other's presence while in the nude unless married to each other," according to a complaint filed by the owners.

Many services provided by the spa require patrons to be fully naked, and the employees who work on-site are all female.

Requiring admission of men claiming to be women violates the Constitutional rights to freedom of speech, free exercise of religion, and freedom of association, the spa owners, workers, and patrons asserted.

Rothstein disagreed, finding that a state law called the Washington's Law Against Discrimination "does not discriminate on its face, and it does not by its terms favor a particular religion or the non-exercise of religion."

That means the law survives if it is rationally related to a legitimate governmental purpose. Rothstein said the law's legitimate purpose is, as stated in the law, to protect "the public welfare, health, and peace of the people of this state."

She also said that the Washington Human Rights Commission, which investigates complaints of violations of the law, in its order to the spa to remove language about only admitting "biological women," didn't infringe on the plaintiffs' rights.

"The compelled speech to which Olympus Spa points is 'plainly incidental' to the [law]’s regulation of discriminatory conduct," Rothstein said.

By way of analogy, she quoted a U.S. Supreme Court ruling: "'Congress ... can prohibit employers from discriminating in hiring on the basis of race,' and 'that this will require an employer to take down a sign reading 'White Applicants Only' hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.'”

The free association claim also failed because the only requirement placed on patrons was that they be female, which is outside the protection based on freedom of association, the judge said.

"The Court does not minimize the privacy concerns at play when employees are performing exfoliating massages on nude patrons. Aside from this nudity, though, there is simply nothing private about the relationship between Olympus Spa, its employees, and the random strangers who walk in the door seeking a massage," she said. "Nor is there anything selective about the association at issue beyond Olympus Spa’s 'biological women' policy.

"The Court therefore has little difficulty concluding that the personal attachments implicated here are too attenuated to qualify for constitutional protection."

Lawyers for the state didn't respond to requests for comment.

Lawyers for the plaintiff said they plan to enter an updated complaint.

The spa can file an amended complaint within 30 days, the judge said. She ruled in the federal case because she's a visiting federal judge. She was appointed by former President Jimmy Carter.

Alleged Discrimination

The situation started when Haven Wilvich, a male who identified as a woman and hasn't undergone sex change surgery, complained to the state commission, alleging the spa's policy was in violation of the state law against discrimination.

Wilvich alleged, "[The spa] denied me services and stated that transgender women without surgery are not welcome because it could make other customers and staff uncomfortable."

Spa policy dictates admitting only females older than 13.

An investigation by the spa owners found no evidence that Wilvich had ever been to the spa, which has facilities in Tacoma and Lynnwood and has been operating for more than 20 years. Myoon Woon Lee, one of the spa owners, also expressed concern that exposing female customers, especially minors, to male genitalia could open the spa up to criminal penalties based on state laws governing lewd conduct and public indecency.

The commission nevertheless determined that the policy violated the law and said it was in violation of the law, which states in part that people have “the right to be free from discrimination because of ... sexual orientation.”

"When dress and grooming standards are applied only to a protected class and are applied specifically because of the protected class status, the standards are discriminatory," a commission representative told the spa in a letter. "This is the case with Olympus Spa's policy, which denies services to transgender women who have not had surgery specifically because their physical appearance is not 'consistent' with the traditional understanding of biological women."

The spa had to remove language regarding serving only biological women from its website and undergo training based on commission-provided materials or it could face prosecution, the representative warned.

Lee and others then brought the lawsuit, alleging the state was infringing on their rights.

In the complaint, spa owners said that anybody who "presents in the nude as female" was allowed into the spa, including, theoretically, males who identify as women but have had surgery. Likewise, females who had surgery to give the impression of having male genitalia would not be allowed in, the owners said.