Ninth Circuit judges just did something you almost never see in the buttoned-up world of federal appeals courts: they publicly slapped down a colleague for how he wrote a dissent, not for what he decided.
The target was a fiery opinion in a long-running fight over a women-only spa in Lynnwood, Washington, where a judge opened his dissent with the line, “This is a case about swinging dicks.” On Thursday, the court formally denied further review of the case and, in an unusual move, attached a stack of responses from other judges saying that kind of language does not belong in appellate writing.
Denial And Unusual Rebukes
The full court refused both a panel rehearing and a rehearing en banc, and the order came with a set of “statements respecting the denial” in which active and senior judges criticized the tone of the dissents, according to the Ninth Circuit’s amended order. Justia posts the order, which bundles several short opinions and statements from judges across the circuit.
What VanDyke Wrote
In a dissent from the denial of rehearing en banc, Judge Lawrence VanDyke, a Trump appointee, opened with the blunt line, “This is a case about swinging dicks,” and argued that the panel had failed to grapple with what he described as the “actual and horrific consequences” of the majority’s ruling. The line and the overall tone of his opinion are reproduced in the court’s filing and are what triggered the unusually broad internal backlash. The full text of the dissent and the responses appears in the Ninth Circuit’s amended order available on Justia.
Colleagues Push Back
Other judges did not hold back. Circuit Judge M. Margaret McKeown wrote that the lead dissent’s “crass” language only distracted from what the majority framed as a routine public-accommodations dispute. Circuit Judges John Owens and Danielle Forrest summed up their displeasure in a single sentence: “Regarding the dissenting opinion of Judge VanDyke: We are better than this,” as reported by the Davis Vanguard.
How The Fight Started
The legal battle traces back to a 2020 complaint by a transgender woman who said she was denied service at Olympus Spa, a Lynnwood business that bills itself as a women-only Korean spa. The spa entered into a pre-finding settlement with the Washington Human Rights Commission in 2021, while reserving the right to challenge enforcement in court.
A federal judge threw out the spa’s constitutional claims in 2023, and a Ninth Circuit panel affirmed that dismissal last year, leaving Washington’s anti-discrimination law and the spa’s sex-segregated, nude services policy in tension. The timeline and local backdrop have been detailed by the Lynnwood Times.
What Comes Next
With rehearing off the table, the panel’s judgment stands unless Olympus Spa decides to ask the U.S. Supreme Court to step in. The spa would have about 90 days from final judgment to file a petition for a writ of certiorari, according to the Cornell Legal Information Institute. If the spa takes that route, the justices will decide whether the dispute raises an issue significant enough to make their already packed docket.
Why Local Readers Should Care
At the center of all this is a Lynnwood Korean spa that has long required nudity for some procedures and enforced a “biological women” entry policy. The owners describe that policy as rooted in cultural and religious beliefs, while state officials say Washington’s Law Against Discrimination bars discrimination on the basis of gender expression or identity.
Local patrons, employees and nearby businesses are already feeling the fallout, as the case pulls together questions of privacy, religious exercise and public-accommodations law and drops them into a larger national debate. For more on how this has played out on the ground, the Lynnwood Times has tracked the chronology and community reaction.
