LYNNWOOD—The Ninth Circuit Court on March 12 denied petitions by Lynnwood-based Olympus Spa for a rehearing of its case in front of the original three-panel judges against the enforcement action by the Washington State Human Rights Commission (WSHRC), and a rehearing en banc by the full Ninth Circuit to not allow pre-op transwomen access to its female-exclusive facilities.
Olympus Spa attorney Tracy Tribbett Pacific Justice Institute, in a statement to the Lynnwood shared her client’s intent to file a petition to the U.S. Supreme Court that the enforcement of Washington’s Law Against Discrimination infringes on free speech, free exercise of religion, and freedom of association.
“Based on our initial review of the seven separate opinions, we are optimistic that the Supreme will take an interest in the petition for review,” Tribbett wrote in her statement.
Olympus Spa, located on 196th Street near the Lynnwood Event Center, is fashioned after “Jjimjilbang” — a health and wellness facility where patrons are required to be nude in some procedures per its Korean-inspired tradition. Because of this, it has held the requirement for members to have female genitalia – a requirement held throughout its 20+ years of operation. Transgender women are only admitted at Olympus Spa if they have undergone post-operative sex confirmation surgery.
Transwoman Haven Wilvich sought access to the Lynnwood spa in 2020 but was allegedly told that her request was declined because, “transgender women without surgery are not welcome because it could make other customers and staff uncomfortable.”
At the time of the alleged incident in January of 2020, Wilvich hadn’t yet gone through bottom surgery, meaning she still had male genitalia. According to her blog, Finding Haven, Wilvich successfully underwent a 4-hour vaginoplasty, on August 3, 2020, to create a vagina.
“I’m now the proud owner of a brand spanking new neovagina,” Wilvich wrote on her blog post titled, “V Day.”
Olympus spa contains a bath area with multiple whirlpools, a traditional Korean body-scrub service area, standing showers, sit-down showers, a steam room, and a dry sauna. Patrons are nude when utilizing these services and have visual access to other nude patrons. Nudity is not optional, adhering to the Korean tradition of “Seshin,” and employees refuse to perform massages on fully nude patrons with male genitalia.
“The tradition has existed for about 500 years from Korean ancestry,” Olympus Spa Owner Sun Lee told the Lynnwood Times. “Where women, particularly women, go through a traditional, ceremonial, act of cleansing and the person has to be naked.”
According to court records, the spa informed the WSHRC that it had no record of Wilvich’s visit nor did staff members recall any alleged discriminatory interaction with a customer. Wilvich confirmed with the Lynwood Times that she had never stepped foot inside Olympus Spa and was only invited to attend a gathering by a women’s group for which she is a member. Only when calling ahead during the phone call, prior to the group event to ask if she would be allowed in, did the exchange take place, according to Wilvich.
“It felt really terrible to be invited to an event and find out I can’t attend because the spa is willing to reduce me to my genitalia and not see me as the woman that I am,” Wilvich told the Lynnwood Times.
Wilvich felt discriminated against by this dismissal and took the issue up with the WSHRC in February of 2020. The commission then sent notice of the complaint to Olympus Spa in November of 2020. In March 2021, Olympus received a second complaint, this time requesting a written response by the spa owner.
Olympus Spa owner Lee remained firm to his beliefs stating he “firmly believe it is essential for the safety, legal protection, and well-being of our customers and employees that we maintain adherence to this adaptation of a female-only rule” adding they feared exposing female customers to male genitalia, especially minors, could result in criminal penalties under the state’s laws on lewd conduct. They also cited their Christian faith in which they hold that it is “inappropriate” for a man and a woman to be naked together unless they are married.
Wilvich told the Lynnwood Times, back in 2023, that even if the spa were to change its policy, she still would not feel comfortable attending a place that “tried to sue to continue discrimination based on fake Christian values.”
Although at the time a resident of Des Moines, Washington, located 50 minutes south of the spa, Wilvich frequently visited friends in Lynnwood and added she feels “mostly included” in the area, aside from the occasional disapproving stare.
Lee filed a lawsuit against Andreta Armstrong, Executive Director of WSHRC, in March of 2022, alleging violations of the Spa’s first amendment rights under exercise of religion, freedom of speech, and freedom of association. However, Western Washington District Court Judge Barbara Jacobs Rothstein, rejected the claim on Monday, June 5, 2023.
Then the Ninth District Court of Appeals ruled 2-1 (Judges Margaret McKeown and Ronald Gould In majority to Kenneth Lee in the minority) on May 29, 2025, that Olympus Spa cannot sue the Washington State Human Rights Commission on First Amendment grounds for requiring transgender women into its facilities.
In June 2025, petitions to the Ninth District Court of Appeals for panel rehearing and rehearing en banc were requested, which were denied in a 105-page filing—Olympus Spa v. Armstrong (No. 23-4031)—on Thursday, March 12, 2026.
Judge M. Margaret McKeown in her majority opinion argued that Washington’s Law Against Discrimination (WLAD) prohibits discrimination based on gender identity as part of sexual orientation and that the Spa did not challenge the statute’s text or applicability.
In Washington state, sexual orientation includes the words “gender expression or identity” which is defined as “having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.”
“The Spa does not dispute that WLAD’s proscription of discrimination on the basis of sexual orientation…. WLAD prohibits discrimination based on sexual orientation, which expressly includes ‘gender expression or identity,’ including having a particular ‘gender identity, self-image, appearance, behavior, or expression.’ Wash. Rev. Code § 49.60.040(29),” Judge McKeown wrote denying the panel rehearing.
Adding, “The Spa’s entrance policy denies entry to preoperative transgender women whose ‘gender identity’ or ‘appearance,’ as defined in WLAD, differ from the physical traits associated with postoperative or cisgender women. The statutory language is undoubtedly expansive, and its definition of sexual orientation is bespoke. But it is also unambiguous, and it applies to the Spa’s entrance policy.”
With regards to the Spa’s free speech claim related to the WSHRC requirement for Olympus Spa to alter its written admission policy to not deny admission to preoperative transgender women, Judge McKeown stated that change was necessary to comply with the state’s anti-discrimination laws.
“The HRC merely required the Spa to change its published entrance policy so that it accurately described those new, WLAD-compliant practices. The mandated alterations were ‘plainly incidental to the [challenged law’s] regulation of conduct, and ‘it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.’’”
Judge McKeown further added that Olympus Spa is “not an expressive association” because its patrons “do not engage in expressive activity.”
“The Spa’s effort to transform the act of visiting a spa into the sharing of “ideals and beliefs” within an expressive association would stretch the freedom of association beyond all existing bounds,” Judge McKeown wrote.
In a scathing dissent, Judge Lawrence Van Dyke wrote, “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 [dicks] in their spa,” Judge Van Dyke wrote. “Their female employees and female clients don’t want them [dicks] in their spa either. But Washington State insists on them [dicks]. And now so does the Ninth Circuit.”
He continued, “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. Sometimes, it feels like the supposed adults in the room have collectively lost their minds. Woke regulators and complicit judges seem entirely willing, even eager, to ignore the consequences that their Frankenstein social experiments impose on real women and young girls.”
Judge Van Dyke argued that because WLAD gives exemption to private clubs, “WLAD is not generally applicable [in the Olympus Spa case], and we should have subjected WLAD’s application in this case to strict scrutiny, a standard it cannot survive.”
Judge Lee also dissented from the majority opinion, arguing that the case should be resolved on statutory grounds without reaching constitutional issues.
He argued that the WLAD’s text defines “sexual orientation” to include “gender expression or identity,” but that it is meant as a proxy for orientation (e.g., protecting effeminate gay men) and not a standalone category for transgender status further stating that transgender discrimination differs from orientation-based discrimination.
Judge Lee wrote that Olympus Spa’s original policy was based on genitalia and not gender identity nor orientation, making WLAD not applicable.
“The Spa will treat biological women and post-operative transgender women of any sexual orientation…. To put it plainly, Olympus Spa—a female-only spa—provides services to anyone without male genitalia,” he wrote in his dissent.
Women’s Declaration International (WDI) filed an amicus brief took no sides on the matter arguing the ambiguity of Washington’s Law Against Discrimination in that its enforcement conflicts with voyeurism and indecent exposure laws,and undermines women’s rights to single-sex spaces for privacy and safety.
Kara Dansky, former President of the U.S. Chapter at WDI and Council and author of the amicus brief told the Lynnwood Times, she was “not surprised by the majority’s decision.”
“Judge Van Dyke’s dissent to the denial of rehearing en banc is the first time that WDIUSA has been cited in a federal judicial opinion,” Dansky said in a phone interview with the Lynnwood Times on the rehearing denial. “And we view that as a positive step toward representation of the voices of women and girls in the federal judiciary, even if one disapproves of Judge Van Dyke’s framing in his initial sentence.”
As of March 2026, 22 U.S. states, the District of Columbia have state laws that explicitly prohibit discrimination based on gender identity, as well as sexual orientation, in employment, housing, and public accommodations.
The Olympus Spa argues that it’s preferred original policy is not discriminating against transgender women as it excludes the physical trait of a male genitalia. The argument lies on whether WLAD’s inclusion of “gender expression or identity” within “sexual orientation” is a standalone protection for transgender status or as a contextual proxy— a gender nonconformity such as an effeminate gay man or a masculine lesbian.
Currently, the Ninth Circuit Court upheld the Washington Human Rights Commission enforcement that the policy to exclude a penis in a female-only space was discriminatory based on RCW 49.60.040(29).
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Author: Mario Lotmore
