Judges in the U.S. 9th Circuit Court of Appeals recently decided not to rehear a case from Washington state, but conversation about their ruling — which protects transgender people’s right to patronize sex-segregated facilities — has been dominated by a dissenting opinion that members of the bench called “vulgar barroom talk.”
The dissent by Judge Lawrence VanDyke argued it was unconstitutional to force a Korean spa to remove language from its website limiting admission to “biological women.”
“This is a case about swinging d—,” VanDyke wrote. “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 went on to denounce the court’s liberal majority as “woke judges” who had “collectively lost their minds” and now sought to impose “Frankenstein social experiments … on real women and young girls.” (The spa also permitted trans women who had undergone vaginoplasty, while barring those with penises, court records show.)
The response was swift and fierce.
The court “is not a place for vulgar barroom talk,” Judge M. Margaret McKeown clapped back in a concurrence joined by 25 fellow judges. “That language makes us sound like juveniles, not judges, and it undermines public trust in the courts.”
Judge John B. Owens was more succinct.
“Regarding the dissenting opinion of Judge VanDyke: We are better than this,” he wrote.
VanDyke is among President Trump’s most outspoken judicial appointees, courting controversy from the moment he was nominated to the 9th Circuit in 2019.
Last spring, he posted a “video dissent” in a 2nd Amendment case in which he loaded several guns on camera. He has previously ruled that Idaho doctors cannot prioritize the treatment of pregnant women and girls over their fetuses except in narrow extenuating circumstances, and also found that trans women can be barred from beauty pageants.
In the spa case, VanDyke argued that the law’s power to protect cisgender women and girls had been perverted to privilege a small subset of trans women, writing that Washington’s statute and the 9th Circuit’s decision upholding it “emasculate” and “neuter” those protections.
“It is a tragedy that state governments like Washington’s have decided to privilege recently discovered, woke ‘rights’ over natural rights that have been recognized and protected since before our Nation’s Founding, ” he wrote.
He said his “coarse” language was necessary to drive home the point.
“You may think that swinging d— shouldn’t appear in a judicial opinion. You’re not wrong,” VanDyke allowed in his response.
“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,” the judge wrote.
