Olympus Spa found itself in hot water with Washington state authorities after denying entry to a patron with male genitalia. As the spa pursues relief from the Supreme Court, officials in the state are reconsidering their stance.
The Washington State Human Rights Commission (WSHRC) voted last month to permit businesses to set entry requirements based on genitalia when nudity is a central feature of their operation—thereby permitting, for example, a single-sex nude venue to turn away customers who possess male genitals without facing anti-discrimination enforcement from the state.
That isn’t the kind of ruling one encounters every day. Yet it represents the latest twist in the legal odyssey surrounding Olympus Spa v. Armstrong, a dispute involving a nude spa that has spent years embroiled in an escalating contest with the state after it refused to admit a preoperative transgender woman to its Lynnwood, Washington location.
The central legal question: did the spa have the authority to refuse admission? Olympus Spa has asked the Supreme Court to weigh in on this issue.
Haven Wilvich, who identifies as a “nonbinary trans woman,” filed a complaint with the WSHRC in 2020, alleging that Olympus Spa—a traditional Korean establishment that requires nudity in its pool area and thus serves a single-sex clientele—violated the Washington State Law Against Discrimination (WLAD). The statute prohibits discrimination on a number of characteristics, including sexual orientation, which the law defines to include “heterosexuality, homosexuality, bisexuality, and gender expression or identity.”
That last provision has proven tricky for the spa. When the business challenged the policy on First Amendment grounds, it did not fare well. “We are not oblivious to the concerns and beliefs voiced by the Spa,” wrote Judge M. Margaret McKeown for the U.S. Court of Appeals for the 9th Circuit last year. But the First Amendment, the court ruled, did not provide a path to resolve those concerns. The government’s objection to the entrance policy was not rooted in disagreement with the message it conveyed but in the practice it described—a practice that WLAD deems unlawful. In short, the WSHRC was enforcing the law as written, not compelling the Spa to alter its beliefs; Olympus Spa “simply did not challenge the statute itself,” McKeown observed, “and it is not our role to rewrite the statute.”
As unsatisfying as this reasoning may have appeared to many observers, it aligned with existing precedent. “Generally speaking, the [Supreme] Court has been reluctant to permit businesses to say, ‘We get to associate with whomever we please,’” explained Eugene Volokh, a law professor emeritus at UCLA specializing in First Amendment issues, in September. “That would amount, at minimum, to broad challenges to anti-discrimination law—and possibly the end of such protections altogether. As a libertarian matter, one could argue for such a right, but the Court has repeatedly rejected that position.”
In its appeal to the Supreme Court, Olympus Spa renews its First Amendment challenge. It also foregrounds a separate argument based on religious exemptions. The spa’s owners are devout Christians who, as stated in their petition, “hold the religious conviction that men and women should not be unclothed together unless married to one another.” Accordingly, they contend that the spa should be exempt from public accommodations laws to the extent those laws apply to its single-sex admissions policy.
That argument is not a guaranteed win. The body of law surrounding religious exemptions is notoriously unsettled, to say the least. The unsettled nature of the jurisprudence, however, could entice the Supreme Court to take up the matter.
Washington state, for its part, appears to want to avoid a broader ruling on the subject, if its recent action is any guide. “In the limited circumstance where a business requires nudity as a central purpose of the business,” the updated rule states, “such a business may maintain a rule that entry to spaces where nudity is required be conditioned on genital characteristics.” Following the vote, the executive director was expected to collaborate with the Office of the Attorney General to formally file the rule.
That development may be more cosmetic than substantive. It does not appear likely to deter the Spa from pressing its appeal. “The Spa is still evaluating the legal implications of the Commission’s actions,” a source involved in the litigation said. “To begin with, the Commission lacks the authority to modify state law, so it remains unclear how much protection—if any—this rule change will provide for the Spa if a male individual sues under the Washington Law Against Discrimination for access to the areas where the Spa’s nude, female patrons gather. Moreover, the Spa’s complaint sought nominal damages and the case would presumably be reinstated to pursue that remedy.”
The case, though unusual in its specifics, has provoked strong reactions. “This is a dispute about swinging genitalia,” wrote Judge Lawrence VanDyke of the U.S. Court of Appeals for the 9th Circuit in March. “You may think that swinging genitalia should not appear in a judicial opinion. You would not be wrong. Yet as shocking as this phrasing may be, it is even more jarring for the unsuspecting and exposed women at Olympus Spa—some as young as thirteen—to be visually confronted by such anatomy.”
Despite the blunt rhetoric, the core point remains striking: Olympus Spa’s demand that it not be compelled to admit customers with male anatomy to its all-female nude space has helped fuel a lengthy legal struggle that many observers deem odd or misplaced. The saga highlights how our legal framework can struggle to address ordinary-sounding, good-faith objections when they sit at the edge of the law’s reach.
Nevertheless, the dispute underscores a broader truth: changes to the rules may come not from courts but from those who craft them. The Commission’s move is a first step, though it remains to be seen how much protection it actually offers. A more lasting shift could emerge from the Legislature. Following Olympus Spa’s defeat at the 9th Circuit last year, Volokh suggested that the most direct remedy would be to amend WLAD itself. He argued that it should be possible to allow “places of public accommodation to segregate facilities by gender according to the way those places define it,” such as by anatomy. Sometimes, after all, the prospect of a lawsuit is what finally catalyzes reform.
