As regular readers may know, I was a practicing attorney for over 28 years before I opted to hang up my briefcase and transition into a media career full-time. In doing so, I didn’t necessarily aspire to focus my writing on legal matters — I’d already done that for almost three decades. And what drew me into the media world was politics. That said, given the volume of law-related stories we’ve seen in recent years, I fell into it by default. And, in fairness, it’s a somewhat natural fit.
That said, legal writing can be a bit dry at times — even in the era of activist judges who’ve seemingly determined it incumbent upon them to turn judicial opinions into their personal smash books. And even while it seems fitting to mock some of the overwrought prose emanating from the black-robed set, every once in a while, there comes an opinion that inspires a certain measure of awe. The one I’m about to share with you is just that.
FAIR WARNING: SPICY LANGUAGE AHEAD.
Well, this is what happens when the Emperor Has No Clothes. pic.twitter.com/dWGhzlZKTF
— Margot Cleveland (@ProfMJCleveland) March 13, 2026
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It all begins with a spa — specifically, “a traditional Korean, women-only, nude spa” — in Washington state. After a transgender woman (i.e., biological male) lodged a complaint with the state’s Human Rights Commission in 2020, alleging that Olympus Spa “denied [her] services and stated that transgender women without surgery are not welcome because it could make other customers and staff uncomfortable,” the HRC initiated an enforcement action against Olympus.
Washington’s Law Against Discrimination (WLAD) prohibits discrimination in public accommodations based on gender identity. Olympus denied that its “biological women only” policy violated WLAD, reasoning that its policy was based purely on genitalia, rather than gender identity, but the HRC determined otherwise. Eventually, they reached a settlement agreement, but Olympus reserved the right to challenge the agreement and statutes/regulations constitutionally, which it subsequently did, contending they violated its First Amendment rights.
The federal district court judge dismissed the spa’s suit. Olympus appealed to the 9th Circuit Court of Appeals, which affirmed the dismissal. Olympus then petitioned for rehearing en banc, and it is the 9th Circuit’s denial of that petition for rehearing, which brings us to Thursday’s eyebrow-raising decision.
Normally, we’d start with the majority opinion…but it’s the dissent — specifically, the dissent authored by Judge Lawrence VanDyke — that has judicial undergarments in a wad, so to speak.
Right out of the gate, Judge VanDyke lets the reader know what’s up:
This is a case about swinging dicks. The Christian owners of Olympus Spa—a traditional Korean, women-only, nude spa—understandably don’t want them in their spa. Their female employees and female clients don’t want them in their spa either. But Washington State insists on them. And now so does the Ninth Circuit.
VanDyke freely acknowledges that his inclusion of dangling appendage imagery is unconventional. But he’s got a point.
You may think that swinging dicks shouldn’t appear in a judicial opinion. You’re not wrong. But as much as you might understandably be shocked and displeased to merely encounter that phrase in this opinion, I hope we all can agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa—some as young as thirteen—to be visually assaulted by the real thing.
And the reaction from some of his colleagues to his dissent lays it all bare:
The American legal system has long been regarded as a place to resolve disputes in a dignified and civil manner or, as Justice O’Connor put it, to “disagree without being disagreeable.”1 It is not a place for vulgar barroom talk. Nor is it a place to suggest that fellow judges have “collectively lost their minds,” or that they are “woke judges[]” “complicit” in a scheme to harm ordinary Americans. That language makes us sound like juveniles, not judges, and it undermines public trust in the courts. The lead dissent’s use of such coarse language and invective may make for publicity or entertainment value, but it has no place in a judicial opinion. The lead dissent ignores ordinary principles of dignity and civility and demeans this court. Neither the parties nor the panel dissent found it necessary to invoke such crude and vitriolic language. Decorum and collegiality demand more.
Please, someone, fetch the fainting couch!
Listen, I get it. VanDyke’s rhetorical flourish here is, indeed, jarring, and not something you’d expect to find in a judicial opinion, even while they’ve gotten far more flourishy of late. But it does rather defy reason to come completely undone at the words “swinging dicks,” while insisting that women in the most intimate of spaces ought just to tolerate them…in the flesh.
I do so hope Olympus appeals this ruling to the Supreme Court and that the Court agrees to take the case. I feel like Neil Gorsuch could have a field day writing the opinion. And God only knows what Ketanji Brown Jackson might have to say about it all…
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