Judge Lawrence VanDyke wrote a sharply worded dissent after the Ninth U.S. Circuit Court of Appeals declined to rehear a dispute involving Olympus Spa, a women-only Korean spa in Washington state, and the state’s ban on gender-identity discrimination in public accommodations. His language, including a crude opening phrase, drew a rare written rebuke from a large group of fellow Ninth Circuit judges.
On March 13, 2026, Judge Lawrence VanDyke, a Donald Trump appointee to the Ninth U.S. Circuit Court of Appeals, issued a dissent after the court declined to rehear a case en banc involving Olympus Spa, a women-only Korean spa in Washington state.
The underlying dispute stems from Washington’s Law Against Discrimination (WLAD), which bars discrimination in places of public accommodation based on, among other protected characteristics, gender identity. In the federal litigation, the spa challenged the Washington State Human Rights Commission’s enforcement of WLAD against its policy of admitting only “biological women,” a policy that excludes transgender women who have not had gender-affirming surgery.
In a May 29, 2025, panel decision, the Ninth Circuit rejected the spa’s First Amendment claims. The panel held that WLAD, as applied in the case, imposes only incidental burdens on religious exercise and is “neutral and generally applicable,” meaning the law is evaluated under rational-basis review rather than strict scrutiny. The court also said the record did not support claims of hostility toward the spa’s religious beliefs in the state’s enforcement actions.
VanDyke’s March 2026 dissent drew attention for its rhetorical style and explicit language. It opened with the phrase “This is a case about swinging dicks,” and argued that the policy dispute should be understood in terms of male genital exposure in a nude, women-only setting. He also described the law and its effects in inflammatory terms, including calling it a “Frankenstein social experiment,” and asserted—without citing record evidence—that the rule could be exploited by “sexual deviants” in female-only spaces.
A large group of Ninth Circuit judges responded in writing to VanDyke’s dissent. Judge Margaret McKeown authored a statement joined by numerous active and senior judges criticizing the dissent’s tone and language, saying the court’s work is diminished when opinions use crude insults and invective. Judge John Owens also issued a brief, separate statement—joined by Judge Danielle Forrest—saying: “Regarding the dissenting opinion of Judge VanDyke: We are better than this.”
VanDyke’s dissent revived scrutiny of his 2019 American Bar Association rating of “Not Qualified” during his nomination to the Ninth Circuit. In a letter summarizing anonymous interviews, the ABA said some evaluators described him as “arrogant, lazy, an ideologue” and raised concerns about temperament and fairness, including toward LGBTQ people.
The panel decision in the Olympus Spa case noted that the record did not substantiate allegations that state officials acted with religious hostility in enforcing the law. It also addressed, but did not ultimately decide on the merits in that appeal, an argument related to WLAD’s exemption for private clubs, noting the spa raised that point late in the litigation.
