The legal battle over the intersection of transgender rights and religious liberty has reached a new fever pitch as a California-based spa filed a formal petition with the United States Supreme Court on Monday. The petition seeks to overturn a Ninth Circuit Court of Appeals ruling that rejected the spa’s religious and expressive objections to a state mandate requiring it to allow transgender women—including those who have not undergone gender-reassignment surgery—into female-only nude areas. This litigation, which has simmered in the lower courts for years, gained national notoriety following a blistering and unconventional dissent from a Ninth Circuit judge, which used provocative language to characterize the court’s majority opinion, eventually drawing a rare public rebuke from dozens of his judicial colleagues.
At the heart of the petition is a fundamental constitutional question: Does a state’s interest in enforcing anti-discrimination laws in public accommodations override the First Amendment rights of business owners who hold sincere religious beliefs about biological sex? The petitioner argues that the Ninth Circuit’s decision is "irreconcilable" with recent Supreme Court landmarks, including 303 Creative LLC v. Elenis and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.
The Genesis of the Litigation: The Wi Spa Incident
The case traces its origins back to a widely publicized incident in June 2021 at Wi Spa, a popular 24-hour health and wellness center in Los Angeles’ Koreatown. A viral video captured a confrontation in the spa’s lobby after a female patron complained to staff that a person with male genitalia was undressing in the women’s locker room in the presence of minors. The spa defended its policy, citing California’s Unruh Civil Rights Act, which prohibits business establishments from discriminating on the basis of gender identity and gender expression.
The incident sparked weeks of intense protests and counter-protests outside the spa, highlighting a deep societal divide. Following the public outcry, several patrons and the spa’s management became embroiled in legal challenges. While the initial controversy centered on the spa’s compliance with state law, the legal focus shifted to whether the state law itself, as applied to intimate spaces like spas and locker rooms, violates the constitutional rights of those who own or frequent these establishments based on traditional religious views of gender.
The current petition before the Supreme Court argues that the Ninth Circuit failed to apply the "strict scrutiny" required when state actions infringe upon religious exercise and expressive association. The spa contends that being forced to provide access to biological males in spaces where women are nude constitutes a form of "compelled speech" and a violation of the right to provide a sex-segregated environment based on the owner’s religious convictions.
The ‘Swinging Dicks’ Dissent and Judicial Friction
The case moved from a local controversy to a significant legal landmark due in large part to the internal friction within the Ninth Circuit. When the court declined to hear the case en banc (before a full panel of judges), Circuit Judge Lawrence VanDyke issued a scathing dissent that sent shockwaves through the legal community.
In his dissent, Judge VanDyke accused his colleagues of being ideologically biased against religious conservatives. He used the phrase "swinging dicks" to describe what he perceived as the reality of the court’s order—that biological males would be permitted in female-only spaces regardless of the discomfort or religious objections of others. He argued that the court was "evolving" the law to a point where traditional privacy and religious rights were being systematically dismantled.
The language was so provocative that it prompted an unusual response. Dozens of other judges on the Ninth Circuit signed onto a statement decrying the tone of the dissent, arguing that such "salacious" and "unprofessional" language undermined the dignity of the federal judiciary. However, the spa’s Supreme Court petition leans into this friction, suggesting that the very vitriol of the internal debate proves that the Ninth Circuit is hopelessly divided and in need of clear guidance from the nation’s highest court.
Timeline of Legal Developments
The path to the Supreme Court has been marked by several critical milestones:
- June 2021: The initial incident at Wi Spa occurs, leading to viral videos and civil unrest.
- Late 2021 – 2022: Multiple lawsuits are filed in California state and federal courts challenging the application of the Unruh Civil Rights Act to intimate spaces.
- Early 2023: A federal district court dismisses the spa’s claims, ruling that the state has a "compelling interest" in preventing discrimination against transgender individuals.
- June 2023: The U.S. Supreme Court decides 303 Creative LLC v. Elenis, ruling that a web designer could not be compelled to create websites for same-sex weddings, strengthening the "compelled speech" argument for business owners.
- Late 2023: A three-judge panel of the Ninth Circuit affirms the dismissal of the spa’s case, distinguishing it from 303 Creative by arguing that a spa provides a "service" rather than "expressive speech."
- Early 2024: The Ninth Circuit denies a petition for a rehearing en banc, accompanied by Judge VanDyke’s controversial dissent.
- August 10, 2026: The spa officially petitions the U.S. Supreme Court to grant a writ of certiorari.
Legal Arguments: Compelled Speech vs. Public Accommodation
The spa’s petition centers on three primary legal theories. First, it argues that the Ninth Circuit’s ruling creates a circuit split regarding the definition of "expressive association." The petitioners claim that by operating a women-only spa, they are creating a specific environment that "expresses" a message about womanhood and privacy. By forcing the inclusion of transgender women, the state is allegedly altering that message.
Second, the petition invokes the "Free Exercise Clause" of the First Amendment. The owners argue that their religious belief—that sex is an immutable, God-given characteristic—is being burdened by a law that is not "neutral or generally applicable" because it provides various secular exemptions but refuses to accommodate religious ones.
Third, the spa points to the Supreme Court’s 2020 decision in Bostock v. Clayton County. While Bostock protected transgender employees from workplace discrimination, the spa argues that the Court explicitly left open the question of how its ruling would apply to intimate spaces like locker rooms and bathrooms. The petition suggests it is now time for the Court to provide the "Bostock bookend" that clarifies the limits of gender-identity protections in private business settings.
Supporting Data and Broader Context
The conflict at Wi Spa is not an isolated event. According to data from the Movement Advancement Project, 22 states and the District of Columbia currently have laws that explicitly prohibit discrimination based on gender identity in public accommodations. Conversely, in the last three years, over 15 states have passed legislation specifically aimed at restricting transgender individuals’ access to bathrooms or locker rooms that align with their gender identity, though these laws primarily target schools and government buildings.
Legal experts note that the "public accommodations" doctrine is currently undergoing its most significant transformation since the Civil Rights era. In 2023 alone, there were over 500 bills introduced in state legislatures nationwide targeting LGBTQ+ rights, many of which focused on the definition of "sex" and "gender."
The spa’s petition also highlights a growing trend of "litigation by dissent," where conservative judges in liberal-leaning circuits use provocative language to signal to the Supreme Court that a case is ripe for review. Judge VanDyke’s dissent is cited in the petition as evidence of a "deep-seated judicial confusion" that only the Supreme Court can resolve.
Reactions from Stakeholders
While the Supreme Court has yet to decide whether it will hear the case, various advocacy groups have already signaled their positions.
Legal counsel for the spa issued a statement following the filing: "This case is about whether the government can force a private business to violate the privacy of its patrons and the conscience of its owners. The Ninth Circuit’s refusal to protect these basic rights stands in direct opposition to the Supreme Court’s recent precedents. We are confident that the Court will see the necessity of protecting expressive liberty for all Americans."
On the other side, civil rights organizations like the ACLU and Lambda Legal have defended the Ninth Circuit’s original ruling. In previous filings related to the case, proponents of the law argued that "the right of transgender people to exist in public spaces without being subjected to humiliation or exclusion is a cornerstone of a just society." They contend that if the Supreme Court rules in favor of the spa, it could open the door for businesses to discriminate against any group—including racial or religious minorities—under the guise of "expressive association."
Analysis of Potential Implications
If the Supreme Court grants certiorari, the implications could be profound. A ruling in favor of the spa would likely create a "religious exemption" to public accommodation laws that could be applied far beyond spas. It could affect gyms, homeless shelters, and even retail changing rooms.
Furthermore, such a ruling would represent a significant expansion of the 303 Creative doctrine. While 303 Creative dealt with "pure speech" (website design), the Wi Spa case deals with "conduct" (the physical presence of individuals in a facility). If the Court views the operation of a spa as "expressive conduct," the boundary between what is a "service" and what is "speech" will become increasingly blurred.
Conversely, if the Court declines to hear the case or upholds the Ninth Circuit’s decision, it will reinforce the power of states like California to enforce broad anti-discrimination mandates. This would likely embolden other states to pass similar protections, knowing they can withstand First Amendment challenges even in the context of intimate spaces.
As the Supreme Court prepares for its upcoming term, all eyes will be on the docket to see if the justices are ready to dive back into the "culture war" waters that the Wi Spa case represents. With the lower courts increasingly divided and the rhetoric becoming more pointed, the "Swinging Dicks" order may well become the catalyst for one of the most consequential civil rights rulings of the decade.
