Washington state disavows policy allowing naked males in women's spa as SCOTUS considers review

Washington state has a legal bullseye on its back for gender identity policies affecting eligibility for women's prisons, sex disclosure in girls' school sports, parental say in how schools address their children, and parents' recovery of runaway children.

The Supreme Court already agreed to review the latter on one question: whether parents can challenge the law, which authorizes the state to hide children until parents affirm their gender identity, before their kids run away.

The Evergreen State is now trying to preempt more catnip for the high court, rushing to change an antidiscrimination policy that forces women-only spas to accept anatomically intact males based on their gender identity, even in areas where patrons must be nude.

Oct. 22 meeting minutes show the state human rights commission voted, with "no objections," to adopt an emergency rule amending Washington Administrative Code 162-32-060, which pertains to "gender-segregated facilities." 

A new section apparently eliminates the code's central conflict with a Korean women's spa that prohibits males with intact male genitalia. It reads: "In the limited circumstance where a business requires nudity as a central purpose of the business, such business may maintain a rule that entry to spaces where nudity is required be based on genital characteristics."

Commissioners had been "briefed on matters of litigation" in a nearly hourlong executive session, closed to the public, right before the vote, the minutes say.

Commissioner Han Tran told her peers that they were making "a narrow change to address pending litigation" and couldn't wait for a full regulatory proceeding with notice and comment. The commission is still "very committed to protecting transgender rights," she said.

The commission must work with the Washington Attorney General's office to formalize the emergency rule through the proper regulatory channels, Tran and Executive Director Barbara Harris each told the meeting.

The change would seemingly give Olympus Spa, a "Christian, family-run, Korean bathhouse" that sued the commission for siding with anatomically intact male Haven Wilvich, the right to exclude such customers. 

Wilvich's 2020 complaint alleged that Olympus rejected the male as a member on the basis that "transgender women without surgery [...] could make other customers and staff uncomfortable."

The change also gives AG Nick Brown ammunition to argue the spa's petition for SCOTUS review, filed in August and widely supported in friend-of-the-court briefs, should be rejected as moot. The AG secured a second 30-day extension of the deadline to respond to the petition last week, bumping its new deadline to Dec. 4.

That ploy didn't work when the ACLU tried to stop SCOTUS from considering Idaho's ban on males in girls' sports by claiming its client, transgender athlete Lindsay Hecox, had permanently withdrawn from competition at Boise State University. Hecox prevailed in lower courts, but SCOTUS ended up affirming Idaho's law and others like it.

'Logically and intellectually inconsistent' but 'an improvement'

Pacific Justice Institute lawyer Kevin Snider, counsel of record for Olympus, told Just the News they were still "weighing the legal effect of the Commission's actions."

The commission can't change the Washington Law Against Discrimination, "so it's unclear how much protection - if any - this rule change would give the Spa if a male sues" for access to areas where "nude, female patrons congregate," Snider wrote in an email. Olympus also deserves its day in court to seek nominal damages, he said.

Washington AG Deputy Communications Director Mike Faulk declined to answer questions about the "pending litigation" prompt for the rule and the AG's role in formalizing it, despite his office's two extensions of its deadline to answer Olympus's SCOTUS petition and Tran and Harris saying the AG's role was crucial on this accelerated timeline.

The AG's office serves as legal counsel for "all state entities" as required by law, Faulk said. "We do not speak to pending litigation regarding our clients outside of court. We defer to them." 

The commission has no media contact to answer queries, just a general intake email, which Just the News sent a query to seek details on the pending litigation.

The spa's supporters celebrated the commission's Oct. 22 vote, first broadcast to a wide audience Monday by local radio host Ari Hoffman, but some qualified their enthusiasm. 

"It’s not enough [because] males without penises are still males," lawyer Erin Friday, who filed a brief on behalf of secular, lesbian and Democratic groups, wrote on X.

"Damage control on the part of a bureaucratic agency created and controlled by the Seattle Left," GOP state Rep. Jim Walsh wrote on X. "Logically and intellectually inconsistent" but "an improvement over the previous bureaucratic rule."

Asian-American essayist Wesley Yang, whose collection The Souls of Yellow Folk earned rave reviews in national media, speculated SCOTUS could accept the case and rule for the spa "in ways that could affect other nudity-compulsory business or find that genital prohibitions don't violate gender identity protections."

No fakers allowed, but don't harass real trans people

Wilvich, touted by the Seattle LGBTQ Coalition two years ago as "a queer nonbinary trans woman" and HIV researcher, isn't the first male to seek a human rights commission's blessing to compel women to get up close and personal with male genitalia.

Canadian activist Jessica Simpson, previously Jessica Yaniv, filed several complaints against providers of women-only bikini waxing services for refusing to wax Simpson, but the British Columbia Human Rights Commission determined Yaniv was simply seeking "personal financial gain" and often "motivated to punish racialized and immigrant women."

Korean spas in Los Angeles and a New York City suburb have also been targeted by males seeking access to women's facilities, according to Reduxx. One was a registered sex offender who was arrested more than a year after exposing himself to women at the spa.

In contrast, the Washington State Human Rights Commission sided with Wilvich, finding Olympus Spa's policy "denies services to transgender women who have not had surgery" on the prohibited basis that "their physical appearance" — male genitalia — "is not ‘consistent’ with the traditional understanding of biological women." 

Its 2016 FAQ on the gender-segregated facilities policy emphasizes it doesn't protect those who access them "under false pretense," giving the example of "a man [who] declares himself to be transgender for the sole purpose of entering a women’s restroom or locker room."

But it's equally clear that protections aren't limited to "persons who have certain anatomical characteristics, who have had gender reassignment surgery, or who have undergone any other medical treatment."

Facilities can still ask "polite and nonconfrontational" questions to a person they suspect of pretending to be transgender, according to the FAQs, claiming it's "extremely unlikely" a faker who is ejected will file a complaint or lawsuit. (Yaniv's campaign against waxers, the first among many legal pushes, started a few years later.)

"If they do so, then the investigation conducted by an enforcement agency will uncover the fact that the person was not being honest about their status, and thus is not protected under the law against discrimination," the FAQs say.

"How do they know, when a man comes into the pool and pays to swim and says, 'I’m a woman'" or says nothing, that he's being sincere, 80-year-old Julie Jaman rhetorically asked Feminist Current in 2022 after her local YMCA allegedly banned and threatened to arrest her for violating WAC 162-32-060. "Either you go in and change with men, or you don’t get to go swimming."

Males are 'intentional' women, not 'incidental' women 

The commission required Olympus to remove all references to "biological women" on its website and train staff in "inclusivity." 

Wilvich, who claims to be "more woman" than gender-critical feminists "because I am an intentional woman" and not "incidental" like them, celebrated the commission's ruling in since-deleted Facebook posts from 2021 preserved by Reduxx. 

"I did it!" Wilvich wrote, working with the commission to compel "the main naked lady spa in the area" to allow "all self-identified women access regardless of surgery and genitals."

Lower courts sided with the commission when Olympus sued. Korean-born Judge Kenneth Lee, in an outraged dissent on the split 9th U.S. Circuit Court of Appeals panel, "offered a full-throated defense of Korean spas as an institution," Courthouse News reported at the time.

Five more 9th Circuit judges dissented when the full court refused to review the split panel's decision.

"This is a case about swinging dicks," Judge Lawrence VanDyke wrote in a colorful dissent that prompted The Washington Post to claim he was "auditioning" for a SCOTUS nomination. He called it "far more jarring" for the spa's patrons, "some as young as thirteen, to be visually assaulted by the real thing" than for readers to encounter VanDyke's crude language.