US judges condemn Trump appointee's 'vulgar barroom talk' in transgender bias case

By Daniel Wiessner

March 13 (Reuters) - ADVISORY: This story contains sensitive language in paragraphs 3 and 4.

Nearly 30 U.S. appeals court judges have issued unusual written rebukes to a colleague over his coarsely worded dissent in a case involving a spa for women that refused service to a transgender woman.

The judges on the 9th U.S. Circuit Court of Appeals were writing late Thursday in response to Circuit Judge Lawrence VanDyke's dissent from the full court's decision not to review the spa's claims that a Washington state anti-discrimination law violated its constitutional rights.

The dissent by VanDyke, an appointee of President Donald Trump, begins, "this is a case about swinging dicks." The judges who signed onto the responses included active and senior judges appointed by presidents from both parties.

"You may think that swinging dicks shouldn’t appear in a judicial opinion," VanDyke wrote. "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 13 — to be visually assaulted by the real thing."

In a brief written response included with the court's opinion and dissents by VanDyke and other judges, 27 judges denounced VanDyke's comments as "vulgar barroom talk" that could undermine public trust in the courts.

It is common for appeals court judges to issue dueling opinions that include testy exchanges over legal issues but rarely in such personal terms.

Circuit Judge M. Margaret McKeown, joined by six of the judges, wrote separately that VanDyke's "crass" language served only to distract from what she said was a routine case involving discrimination in public accommodations.

"It is certainly not a case involving 'woke regulators' and 'complicit judges' out to harm 'women and young girls,'" wrote McKeown, an appointee of Democratic former President Bill Clinton, citing phrases from VanDyke's opinion. "Those assertions describe a case entirely different from the one presented to the panel."

In a separate, single-sentence response, Circuit Judges John Owens and Danielle Forrest wrote: "Regarding the dissenting opinion of Judge VanDyke: We are better than this." Forrest is a Trump appointee and Owens was appointed by Democratic former President Barack Obama.

VanDyke did not immediately respond to a request for comment.

In response to a request for comment from VanDyke, a spokeswoman for the 9th Circuit said the court does not comment on its opinions or cases before it.

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VanDyke, who was on Trump's shortlist for a U.S. Supreme Court nomination in his first term, is an outspoken conservative who has repeatedly criticized his colleagues and the 9th Circuit, particularly over immigration-related rulings.

In a highly unusual move last year, VanDyke recorded a video in his judicial robes handling several firearms as part of his dissent from a 9th Circuit decision upholding a California gun law. Circuit Judge Marsha Berzon, an appointee of Democratic former President Bill Clinton, said in a concurring opinion that the video was "wildly improper" and amounted to VanDyke casting himself as an expert witness.

The case involving Olympus Spa stems from a complaint that a transgender woman, Haven Wilvich, filed in 2020 with the Washington Human Rights Commission after the spa denied her service. Washington law bars discrimination in public accommodations based on sexual orientation, including gender expression or identity.

Olympus, a traditional Korean women-only spa where customers are typically nude and gather in common areas, is owned by a conservative Christian family, according to court filings.

Olympus in 2021 reached a settlement with the commission in which it agreed to change its policies but also reserved its right to bring a constitutional challenge to the agreement. The spa did so the following year, claiming the settlement violated the owners' rights to free speech, association and exercise of religion under the First Amendment of the U.S. Constitution.

A federal judge dismissed the case in 2023, saying the Washington anti-discrimination law applies generally to all businesses and does not violate their rights. The 9th Circuit affirmed last May in a 2-1 ruling penned by McKeown, which the full court voted on Thursday not to review.

Four Trump-appointed judges dissented along with VanDyke, though none joined in his opinion. Circuit Judge Eric Tung, the newest member of the 9th Circuit, said Washington's law does not apply generally because it contains various exclusions for both secular and religious institutions, and so it should have been subjected to a higher degree of scrutiny.

Tung was joined by VanDyke and Circuit Judges Ryan Nelson and Patrick Bumatay. Circuit Judge Daniel Collins dissented separately.

The case is Olympus Spa v. Armstrong, 9th U.S. Circuit Court of Appeals, No. 23-4031.

For Olympus: Kevin Snider of Pacific Justice Institute

For the state: Neal Luna of the Washington Attorney General's office

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