This is the first time I have ever read the phrase "This is a case about swinging dicks." in a Court of Appeal judgment
(Sorry that this is very long - just skip to the bottom, if you just want to hear about the swinging dicks)
The case had to be put by way of violating religious beliefs as the laws on sex in that state are written in a way that is trans-inclusive.
So, there has been a long running case in the State of Washington which reached the Court of Appeal and the US Ninth Circuit Court of Appeals just yesterday delivered its latest judgment on the matter.
The case is Olympus Spa v Armstrong. Back in 2020 a trans-identifying man by the name of Haven Wilvich approached Olympus Spa (which is a woman only spa where there is nudity required in certain parts of the spa) and stated that he wished to use their services.
The spa refused him service on the ground that he was not a woman and so Wilvich complained to the Washington State Human Rights Commission (WSHRC).
The WSHRC threatened to prosecute the spa as their women only policy violated the state's anti-discrimination law.
To avoid trouble, in 2021 the spa chose to accept the WSHRC's demands. However, then in 2022 the spa owner brought a case against WSHRC (in the name of it's Director, Andreta Armstrong - hence the name of the case).
The owner claimed the settlement violated his first amendment rights to free speech and religion. He stated that his spa had lost business after some patrons had seen "male genitals" and no longer felt safe. He also stated that including trans-identifying men at his establishment went against his Christian beliefs.
It finally got to court in 2023 and the Western Washington District Court dismissed the case saying that no rights were violated.
The owner of the spa then appealed. There was a judgment given on the case back in 2025. By a two to one majority the Court of Appeal rejected the appeal and said that the Washington law forcing services to include trans-identifying men with women
"...does not impermissibly burden the Spa’s First Amendment rights to free speech, free exercise, or free association, we affirm the district court’s dismissal of the Spa’s complaint."
.
There was then an application for the case to be reheard "en banc". This is when all the judges in the Court of Appeal (or a larger number) hear a case rather than just three of them.
That was also unsuccesful
However, one of these other judges gave a dissenting opinion that rather upset the other judges as he was very forthright in his language. This is just a couple of extracts as it is a long opinion:
VANDYKE, Circuit Judge, dissenting from the denial of rehearing en banc:
This is a case about swinging dicks. The Christian owners of Olympus Spa—
a traditional Korean, women-only, nude spa—understandably don’t want them in
their spa. Their female employees and female clients don’t want them in their spa either. But Washington State insists on them. And now so does the Ninth Circuit.
You may think that swinging dicks shouldn’t appear in a judicial opinion.
You’re not wrong. But as much as you might understandably be shocked and
displeased to merely encounter that phrase in this opinion, I hope we all can agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa—some as young as thirteen—to be visually assaulted by the real thing.
[...]
For women nationwide, this is not progress. This is regression. Confusion in
civil discrimination codes now compels tolerance of the very same conduct that the criminal code simultaneously penalizes. The instances of male voyeurism and indecent exposure in female spaces will continue to grow in number. See Brief of Women’s Declaration International USA as Amicus Brief in Support of Neither Party at 12–19. Sadly, the crowd of women and girls who have been victimized by men in formerly safe and private female spaces will grow as well.
Finally, I’ll respond briefly to my colleagues’ discomfort with how I’ve written this dissent. My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words in my opinion, yet exhibit the scruples of our dearly departed colleague Judge Reinhardt when it comes to the government trampling on religious liberties8 and exposing women and girls to male genitalia.9 That kind of selective outrage speaks for itself. The public deserves a court that is actually trustworthy. We should be earning that trust, not demanding it like petty tyrants
Yes, the introduction to this dissent intentionally uses indecorous language.
But that is quite literally what this case is about. Male genitalia is precisely (and
only) what the Spa, for religious reasons, objects to admitting into its female-only space. The fact that so many on our court want to pretend that this case is about anything other than swinging dicks is the very reason the shocking language is necessary. The panel majority uses slick legal arguments and deflection to studiously avoid eye contact with the actual and horrific consequences of its erroneous opinion. The “ordinary Americans” affected by the majority’s opinion don’t have that luxury. Squirm as we might, I think it’s only fair for our court to have a small taste of its own medicine.
Sometimes “dignified and civil” words are employed to mask a legal abomination. Or, to put it in vernacular perhaps more palatable to my colleagues’ Victorian sensibilities: “In law, what plea so tainted and corrupt, / But, being seasoned with a gracious voice, / Obscures the show of evil?”10
Sometimes coarse and ugly words bear the truth.11 I coarsely but respectfully
dissent from our court’s willingness to leave this travesty in place
.
The 2025 judgment as a pdf is here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/29/23-4031.pdf
and the latest judgment that I have quoted from is here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/03/12/23-4031.pdf
There really is just a whole world of difference between the legal landscape here and in the USA.