“This is a case about swinging dicks,” began 9th Circuit Judge Lawrence VanDyke in his dissent.
The case in question centered on the policy of two Korean spas in Washington state that allowed only “biological women” to use their services — or more specifically, barred trans women who had not yet undergone surgery. Washington’s Human Rights Commission took enforcement action against the Spa for violating an anti-discrimination state law. The spas sued, arguing that the enforcement action had violated their First Amendment rights. A district court dismissed the complaint, and a 9th Circuit panel upheld that dismissal. In a Thursday ruling, the full 9th Circuit declined to rehear the case.
“We are not unmindful of the concerns and beliefs raised by the Spa,” wrote Judge M. Margaret McKeown, a Clinton appointee, for the majority. “Indeed, the Spa may have other avenues to challenge the enforcement action. But whatever recourse it may have, that relief cannot come from the First Amendment.”
VanDyke, a Trump appointee, did not let such a measured finding interfere with his opportunity to rail against the court and the supposed leftist agenda, penning a screed that dipped gratuitously into the old bigoted elision of gay people with sexual predators.
“The fact that the religious owners of a traditional Korean, women-only, nude spa are prohibited by law from preventing a naked adult male, who remains sexually attracted to women, from exposing himself to thirteen-year-old girls tragically illustrates the sick and twisted consequences of erasing sex as a coherent legal category,” he wrote, arguing that Thursday’s decision allowed the crimes of “voyeurism and indecent exposure” to be freely carried out by trans people at the spas.
He patted himself on the back for prompting outrage from his more buttoned-up colleagues.
“My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words in my opinion, yet exhibit the scruples of our dearly departed colleague Judge Reinhardt when it comes to the government trampling on religious liberties and exposing women and girls to male genitalia,” he wrote. “That kind of selective outrage speaks for itself.”
Elsewhere in the ruling, most of his fellow judges chided him. A group led by McKeown wrote that his dissent 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,” she wrote.
Two Obama and Trump appointees teamed up to put it even more simply: “Regarding the dissenting opinion of Judge VanDyke: We are better than this.”
Online, though, the right-wing legal world cheered the dissent, suggesting that VanDyke had hit home with his target audience.
Read the ruling and dissent here:
