Summary
The Ninth Circuit affirmed dismissal of a First Amendment challenge brought by Korean spas against enforcement of Washington's Law Against Discrimination concerning the exclusion of preoperative transgender women. The court held that the policy discriminated based on gender identity under the statute and that enforcement did not impermissibly burden the spas' rights to free speech, free exercise of religion, or free association.
Topics
Practice areas
Questions Presented
- Whether the Spa's exclusion of preoperative transgender women constituted discrimination based on gender identity and therefore sexual orientation under the Washington Law Against Discrimination.
- Whether enforcement of the Washington Law Against Discrimination impermissibly burdened the Spa's First Amendment freedom of speech by requiring changes to its published admissions policy.
- Whether enforcement of the Washington Law Against Discrimination violated the Spa's First Amendment right to free exercise of religion.
- Whether enforcement of the Washington Law Against Discrimination violated the Spa's First Amendment rights to intimate or expressive association.
Holdings
- The Spa's policy discriminated based on gender identity because it excluded preoperative transgender women based on gender-related identity or appearance; under Washington law, gender expression or identity is included within the statutory definition of sexual orientation, so the policy fell within the Washington Law Against Discrimination.
- The enforcement action did not impermissibly burden the Spa's First Amendment right to free speech because any restriction on speech was incidental to regulation of unlawful discriminatory conduct and satisfied intermediate scrutiny under the O'Brien framework.
- The enforcement action did not violate the Spa's right to free exercise of religion because WLAD imposed only an incidental burden on religious expression, was neutral and generally applicable, and was rationally related to legitimate governmental interests.
- The Spa was neither an intimate association nor an expressive association protected by the First Amendment, so enforcement of WLAD did not violate its freedom of association.
Key quotations
“The Spa’s conduct discriminates based on gender identity; therefore, under state law, it discriminates based on sexual orientation and falls within WLAD’s ambit.” (13)
“We conclude that WLAD imposes an “incidental restriction . . . no greater than is essential” to eliminate discriminatory conduct.” (19)
“The Spa is not an intimate association.” (24)
“Consequently, unlike the Boy Scouts, in the absence of a cognizable association, the Spa cannot prevail on its First Amendment freedom of association claim.” (28)
Factual background
Olympus Spa operates two Korean spas in Washington that require nudity for certain services and maintain sex-segregated facilities. The Spa's policy admitted biological women and postoperative transgender women but excluded preoperative transgender women who had not undergone gender-confirmation surgery affecting their genitalia. After a transgender woman complained, the Washington Human Rights Commission determined that the policy violated the Washington Law Against Discrimination, and the Spa entered into a settlement requiring compliance with the statute and removal of the biological-women language from its website. The Spa then challenged the enforcement action on First Amendment free-speech, free-exercise, and freedom-of-association grounds.
Procedural history
The Washington State Human Rights Commission initiated an enforcement action against Olympus Spa under the Washington Law Against Discrimination concerning the Spa's policy excluding preoperative transgender women. The Spa entered into a pre-finding settlement agreement while reserving the right to challenge the constitutionality of the agreement, statutes, regulations, and related policies. The district court dismissed the Spa's First Amendment claims with prejudice, and the Ninth Circuit affirmed.