Bottom Line: Korean Spas Where Girls And Women Are Nude Must Admit Men
Ninth Circuit court uses smoke and mirrors to uphold a panel's 2-1 ruling requiring Washington state's traditional women-only spas to admit men who say they "identify" as women.
It’s an epic misstep so, predictably, the U.S. Court of Appeals for the Ninth Circuit in San Francisco is doubling down.
A three-judge panel of the Ninth Circuit ruled 2-1 in May that traditional Korean spas in Washington that feature communal baths for girls and women — who are nude — must admit men who say they “identify” as women but did not undergo gender confirmation surgery to remove their male genitalia.
This week, the appeals court announced that it would not require the panel to rehear the case, and vetoed a request for an “en banc” hearing by all the active judges of the Ninth Circuit.
So the ruling - arguably the “most clueless” of 2025 - stands.
Not only must preoperative “trans women” (a.k.a., intact men) be admitted to traditional all-female Korean baths, but female spa attendants must give them the same service as if they were women, including deep tissue massages, even if it makes them feel “uncomfortable.”
Smoke and Mirrors
In a written order, Senior Judge M. Margaret McKeown attempts to characterize the Ninth Circuit as powerless to do the right thing because the plaintiffs didn’t argue the case a different way.
At the same time, McKeown, 74, and Judge Ronald M. Gould, 79, who remains an active judge, the two panel members who ordered the spas to admit fully intact men, voted to deny the appellant’s petition for a rehearing by the panel, so the parties could address the relevant legal issues. Both McKeown and Gould are nominees of former Democratic President Bill Clinton.
McKeown, complains the plaintiffs failed to attack the constitutionality of the state law in Washington that prohibits public facilities from discriminating on the basis of gender identity.
Instead, she said, the plaintiffs sued state officials on First Amendment grounds, claiming the way they enforced the law violated the spa’s First Amendment rights to freedom of speech, religion and association.
It might seem to be a difference without a distinction, but McKeown insists it is not. “The Spa simply did not challenge the statute itself, and it is not our role to rewrite the statute,” she writes.
McKeown argues, in effect, that the court has no choice but to require enforcement of Washington law that potentially (obviously?) violates the U.S. Constitution.
It’s all smoke and mirrors, of course.
