Summary
The Ninth Circuit amended its opinion affirming dismissal of Olympus Spa’s First Amendment challenge to enforcement of the Washington Law Against Discrimination against the spa’s policy excluding preoperative transgender women. The court held that the enforcement action did not impermissibly burden the spa’s rights to free speech, free exercise, or expressive association. The accompanying order denied panel rehearing and rehearing en banc.
Topics
Practice areas
Questions Presented
- Whether enforcement of the Washington Law Against Discrimination impermissibly compelled or restricted the Spa's speech in violation of the First Amendment.
- Whether the Washington Law Against Discrimination, as applied to the Spa, violated the Free Exercise Clause because it burdened the Spa's religious beliefs.
- Whether the Spa and its patrons constituted an intimate or expressive association protected by the First Amendment.
- Whether the Washington Law Against Discrimination applied to the Spa's exclusion of preoperative transgender women.
Holdings
- The Washington Law Against Discrimination prohibits discrimination in public accommodations based on sexual orientation, and Washington's statutory definition of sexual orientation expressly includes gender expression or identity. The statute therefore applied to the Spa's exclusion of preoperative transgender women.
- WLAD enforcement did not violate the Spa's First Amendment free-speech rights because the required changes to the Spa's written entrance policy were incidental to regulating unlawful discriminatory conduct, not direct regulation of protected expression.
- WLAD is neutral and generally applicable and imposes only an incidental burden on religious exercise; its application to the Spa therefore was subject to rational basis review and did not violate the Free Exercise Clause.
- The Spa was neither an intimate association nor an expressive association protected by the First Amendment.
Key quotations
“But it is also unambiguous, and it applies to the Spa’s entrance policy.” (8)
“The mandated alterations were “plainly incidental to the [challenged law’s] regulation of conduct.” (13)
“As applied, the statute does not abridge the Spa’s rights to free speech, free exercise, or free association.” (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 entrance policy admitted biological women and post-operative transgender women but excluded preoperative transgender women who had not undergone genital surgery. After a complaint, the Washington State Human Rights Commission determined that the policy violated the Washington Law Against Discrimination and obtained a settlement requiring the Spa to remove the biological-women language and adopt a policy affirming equal access without regard to sexual orientation or gender identity. The Spa sued state officials, alleging that enforcement of the statute violated its First Amendment rights to free speech, free exercise of religion, and association.
Procedural history
The Washington State Human Rights Commission investigated Olympus Spa after a transgender woman complained that the Spa denied her access under a biological-women-only entrance policy. The Spa entered a pre-finding settlement agreement requiring compliance with the Washington Law Against Discrimination and removal of the biological-women language from its website, while reserving the right to bring a constitutional challenge. The Western District of Washington dismissed the Spa's amended complaint with prejudice, and the Ninth Circuit affirmed. The Ninth Circuit later denied panel rehearing and rehearing en banc and filed this amended opinion.