VanDyke Uses Crude Phrase in Case Over Spa’s Transgender Policy

A Donald Trump-appointed federal appellate judge invoked the term “swinging dicks” three times in an unusually crass opinion involving a nude, female-only Korean spa, drawing sharp rebukes from 29 of his colleagues.

“This is a case about swinging dicks,” began a Thursday dissenting opinion from Judge Lawrence VanDyke of the US Court of Appeals. He said he would have ruled in favor of Washington state’s Olympus Spa, which had sought to bar transgender women from its spa facilities on free speech grounds.

“You may think that swinging dicks shouldn’t appear in a judicial opinion. You’re not wrong,” he wrote. “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.”

He went on to say that it “feels like the supposed adults in the room have collectively lost their minds” and criticized “woke judges’ willingness” to sacrifice constitutional rights “on the altar of ‘social progress.’”

VanDyke’s dissent prompted a harsh rebuke from more than two dozen of his colleagues, who wrote separately to say that the US legal system “is not a place for vulgar barroom talk” and that VanDyke’s dissent “ignores ordinary principles of dignity and civility and demeans this court.”

“That language makes us sound like juveniles, not judges, and it undermines public trust in the courts. The lead dissent’s use of such coarse language and invective may make for publicity or entertainment value, but it has no place in a judicial opinion,” wrote Senior Judge M. Margaret McKeown, joined by 26 other Ninth Circuit colleagues.

Judge John B. Owens, an Obama appointee, joined by Trump-appointed Judge Danielle Forrest, wrote a separate statement on VanDyke’s dissent with one line: “Regarding the dissenting opinion of Judge VanDyke: We are better than this.”

VanDyke accused his colleagues of displaying “selective outrage” at his language.

“My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words in my opinion,” but fewer qualms “when it comes to the government trampling on religious liberties and exposing women and girls to male genitalia,” he wrote.

Entrance Policy

VanDyke was dissenting from the appeals court’s decision not to rehear a three-judge panel ruling against a pair of Korean spas, referred to together in court documents as Olympus Spa.

Olympus Spa challenged an enforcement action initiated by Washington state’s human rights commission over the spa’s entrance policy, which excluded men and preoperative transgender women who haven’t yet received gender affirming surgery. The commission claimed the policy violated a state anti-discrimination law that prohibits discrimination on the basis of sexual orientation.

The spa sued in a Seattle federal court in 2022, alleging the action violated their rights to free speech and to freely practice their religion. The spa is owned by “Christians who hold sincere, faith-based convictions” against allowing unmarried people with male and female genitals to be in a state of partial or full undress together, according to the lawsuit.

But a Seattle federal judge dismissed the spa’s challenge, and a divided three-judge Ninth circuit panel upheld the lower court ruling last year. McKeown, writing for the panel majority, said the case has nothing to do “with President Trump or discrimination against Asian Americans.”

“The Spa simply did not challenge the statute itself, and it is not our role to rewrite the statute,” she wrote. She added that the court is “is not unmindful of the concerns and beliefs raised by the Spa” and that the spa “may have other avenues” to challenge the state’s enforcement action

Judge Kenneth K. Lee, a Trump appointee, dissented from that panel decision. He wrote that Washington state “has perversely distorted a law that was enacted to safeguard women’s rights to strip women of protections” and criticized the state for targeting “members of a racial minority group who want to share their cultural heritage and provide a safe space for women and girls.”

Four other Trump-appointed judges also wrote separately Thursday to disagree with the decision not to rehear the case.

VanDyke Record

VanDyke has penned unusual dissents before. The judge took issue last month with the Ninth Circuit’s practice of granting stays in immigration cases in an opinion that referenced a “Circuit of Wackadoo.”

Last year, he released a video dissent in a gun control case showing him discussing, and displaying, handguns in his chambers.

VanDyke was confirmed in 2019 after the American Bar Association assessed he was not qualified for the role. The ABA committee that reviews nominees raised concerns that he wouldn’t treat members of the LGBTQ community fairly, William Hubbard, chairman of the ABA Standing Committee on the Federal Judiciary, said in a letter to the Senate Judiciary Committee.

Asked about his fairness to LBGTQ community at his confirmation hearing, VanDyke said he believes all people are “created in the image of God” and should be treated with “dignity and respect.”

Republican allies dismissed the ABA conclusions regarding VanDyke as liberal bias even though nearly all first-term Trump judicial appointees received favorable ratings from the group.

The case is Olympus Spa v. Armstrong, 9th Cir., No. 23-4031, 3/12/26