The judges of the 9th US Circuit Court of Appeals recently decided not to hear a case from the state of Washington, but the discussion about their decision – which protects the right of transgender people to support gender-segregated institutions – was dominated by a dissenting opinion that the members of the bench called “barroom speech.”
Judge Lawrence VanDyke’s dissent challenged the constitutionality of forcing a Korean spa to remove language from its website that restricted admission to “natural women.”
“This is a case about throwing an id—,” VanDyke wrote. “The Christian owners of Olympus Spa — a traditional Korean, women-only, nudist place — understandably don’t want them in their spa. Their female employees and customers don’t want them in their spa either. But Washington State insists. And now so does the Ninth Circuit.”
VanDyke went on to criticize the court’s liberal majority as “woke judges” who had “lost their collective minds” and now sought to impose a “Frankenstein social experiment … on real women and little girls.” (The spa also allowed trans women to have a vaginoplasty, while barring those with a penis, court records show.)
The response was swift and furious.
The court is “not a place for vulgar speech in the bathroom,” Judge M. Margaret McKeown returned the applause along with 25 other judges. “That language makes us sound like children, not judges, and it undermines the public’s trust in the courts.”
Judge John B. Owens was brief.
“Regarding Judge VanDyke’s dissenting opinion: We are better than this,” he wrote.
VanDyke is among President Trump’s most outspoken judicial nominees, who has sparked controversy since his nomination to the 9th Circuit in 2019.
Last spring, he posted a “video rebuttal” to a 2nd Amendment case in which he loaded several guns on camera. He previously ruled that doctors in Idaho cannot prioritize the treatment of pregnant women and girls over their children except in simple circumstances, and he also found that trans women can be banned from beauty pageants.
In the spa case, VanDyke argued that the law’s power to protect cisgender women and girls has been twisted to give less rights to trans women, writing that Washington’s law and the 9th Circuit’s ruling upholding it are “shrinking” and “indiscriminate” of those protections.
“It is a tragedy that state governments like Washington’s have decided to take advantage of their newfound fortune, and raise ‘rights’ over the natural rights that have been recognized and protected since before the Founding of our Nation,” he wrote.
He said his “foul” language was necessary to make a point.
“You might think that swinging d — shouldn’t come from the judge’s opinion. You’re not wrong,” VanDyke conceded in his response.
“But as much as you may be shocked and saddened by encountering this phrase in this view, I hope we can all agree that it is very strange that unsuspecting and exposed women at Olympus Spa – some as young as thirteen – were subjected to the real thing,” the judge wrote.
