The Ninth Circuit Is A Finalist For 'Most Clueless' Ruling of the Year
Once the U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, was considered a model court. What happened? A decision to admit men to female-only spas shows how far it has fallen.
A three judge panel of the U.S. Court of Appeals for the Ninth Circuit this week dropped the towel on gender lines in all-female nude spas.
Two all-female spas filed a federal lawsuit in Washington after the state’s Human Rights Commission (HRC) threatened to prosecute them for refusing to grant admission to men.
The traditional services offered by the spas require the women and girls as young as 13 to be nude. The men are described as “preoperative transgender women” who retain their male genitalia. (Incidentally, the vast majority of men who “identify” as women never undergo sex reassignment surgery.)
The HRC said the spas must admit men and the female attendants must provide full-body massages to them.
The spas argued that Washington was requiring them to “renounce” their Christian faith, which does not permit the mixing of nude persons of opposite sex who are not married to one another.
The spas said the HRC policy violates their First Amendment rights to free speech and free exercise of religion or association.
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on Thursday in a 2-1 ruling dismissed the Korean spas’ lawsuit, with prejudice (meaning it cannot be refiled to respond to the majority’s objections).
In favor were Judges M. Margaret McKeown, 74, a supposed women’s rights advocate, and Ronald M. Gould, 79, a demonstrated trans rights advocate, both appointed by former Democratic President Bill Clinton.
They said the spas “religious expression was only incidentally burdened.”
The majority held the spas were discriminating based on gender identity and therefore violated the HRC’s prohibition against discriminating “based on sexual orientation.”
The dissenting judge is Kenneth K. Lee, 49, who was born in South Korea and appointed to the bench in 2019 by Pres. Donald J. Trump. He argued the HRC’s statute preventing discrimination based on sex and sexual orientation “does not cover transgender status.”
Moreover, Judge Lee said, “Korean spas are not like spas at the Four Seasons… Steeped in centuries-old tradition, Korean spas require their patrons to be fully naked, as they sit in communal saunas and undergo deep-tissue scrubbing of their entire bodies in an open area filled with other unclothed patrons.”
He said the state of Washington “has perversely distorted a law that was enacted to safeguard women’s rights to strip women of protections.”
Bottom line - men can crash a spa where women and girls are nude, and they can coerce female attendants into giving them intimate massages. All they have to do is say they identify as women.
Judge McKeown
First, how could a woman approve such an outrageous conclusion? Not only that, but Judge McKeown is touted as a women’s rights advocate.
In a recent press release, Ninth Circuit Chief Judge Mary H. Murguia said of McKeown, “Throughout her life, Judge McKeown has worked to advance equal rights for women… In one of her memorable speeches, she advises that the mantra should not be ‘lean in,’ which is internally focused, but instead should be ‘lean down and lift up.’”
According to Murguia, Judge McKeown is the chair of the circuit’s Pacific Islands Committee and “has worked with judiciaries around the world on ethics, transitional justice, equal rights, human trafficking and intellectual property.”
What in God’s name is McKeown (and Murguia) thinking? Could they imagine going to a female spa, getting nude, and interacting with strange men who may or may not be trans?
Judge Gould
Judge Gould, on the other hand, has consistently ruled on behalf of trans plaintiffs. In 2019, he ruled that a prisoner with gender dysphoria had a right to “sex reassignment surgery” courtesy of U.S. taxpayers.
There is a lot of competition for the award of most clueless ruling of the year, and we have six months to go, but it is going to be hard to beat this one!
The oral argument in the case can be seen here: