| Last week, in Olympus Spa v. Andretti, the U.S. Court of Appeals for the Ninth Circuit denied a petition for en banc review of a panel decision in one of the latest clashes between antidiscrimination law and the First Amendment. The case made headlines less for the legal issues it concerned than for the arresting first line of a dissent by Judge Lawrence VanDyke: “This is a case about swinging dicks.” |
| It was not in fact such a case. To see why Judge VanDyke’s provocative statement was as offensive as one might expect requires some familiarity with the underlying issues and the broader place of vulgar language in judicial opinions. |
| The Legal Issues |
| A Washington State law forbids places of public accommodations from discriminating on various grounds, including gender expression. State law allows sex-segregated locker rooms, changing rooms, and the like but does not allow proprietors to exclude transgender persons from such spaces designated for the sex with which they identify. Olympus Spa is a private women-only Korean spa in which patrons receive spa services nude. Citing free speech and the Chistian beliefs of its owners, the spa brought a lawsuit arguing that the application to it of Washington’s laws—which would forbid exclusion of a transgender woman who has not had gender confirmation surgery (and thus has male genitalia)—is unconstitutional. |
| The district court rejected the constitutional claims, as did a 2-1 panel. So did the full Ninth Circuit (by rejecting en banc reconsideration). As in the panel, so in the full court, the result was not unanimous. |
| Some of the dissenting judges observed that the Washington public accommodations law does not apply to private clubs. Some of those private clubs have no religious affiliation or motivation. Thus, the dissenters contended, Washington’s law amounts to unconstitutional religious discrimination under recent Supreme Court precedent, which deems a law discriminatory if it regulates any secular activity less strictly than any comparable religious activity. I have previously criticized the Supreme Court’s recent Free Exercise jurisprudence for adopting an unjustifiably broad view of what counts as religious discrimination, but the view of the dissenters in Olympus Spa would broaden it even further to the point of making public accommodations law per se religious discrimination insofar as they apply to public accommodations but not to purely private gatherings, no matter how small. The Ninth Circuit majority was therefore correct to reject the spa’s Free Exercise claim as a bridge too far, even given the fairly far-reaching Supreme Court precedent. |
| Although I strongly disagree with the original panel dissent and the multi-judge en banc denial dissent in Olympus Spa, I recognize them as setting out conventional legal arguments. The same cannot be said for the solo dissent from the denial of reconsideration en banc by Judge VanDyke. In attempted justification of his vulgarity, Judge VanDyke added this to his opening salvo: |
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.
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| Judge VanDyke’s dissent earned him a rebuke from many of his Ninth Circuit colleagues across the ideological spectrum. One of the rebukes said that Judge VanDyke’s “use of such coarse language and invective may make for publicity or entertainment value, but it has no place in a judicial opinion.” Is that true? And does focusing too intently on the coarseness, attention-seeking, and juvenile nature of Judge VanDyke’s Olympus Spa dissent risk obscuring its more serious flaw: his anti-trans bigotry? |
| A Place for Foul Language |
| In the 1971 case of Cohen v. California, the Supreme Court faced the question whether the criminal conviction on charges of disturbing the peace via “offensive conduct” for a young man who wore a jacket bearing the phrase “Fuck the Draft” violated the First Amendment. Chief Justice Warren Burger delicately opened the oral argument in the case by telling petitioner Paul Robert Cohen’s attorney, UCLA Law Professor Melville Nimmer, that he did not need to “dwell on the facts.” Professor Nimmer ignored the Chief Justice’s admonition. After a brief recitation of the case’s procedural history and in response to the first question from the bench, Professor Nimmer stated that “[w]hile walking through [a courthouse] corridor [Cohen] was wearing a jacket upon which were inscribed the words 'Fuck the draft,’ also were inscribed the words 'Stop war’ and several peace symbols.” |
| Professor Nimmer’s son later recounted that his father worried that the marshals would jump up yelling “He said FUCK in the Supreme Court, grab him!” Nonetheless, as numerous scholars have observed in the ensuing years, Professor Nimmer made a sound tactical decision to say the actual word. After all, his client was arrested for using (via the jacket) the word “fuck” in a courthouse; if Professor Nimmer exhibited too much delicacy about repeating it in another courthouse he would have been signaling that such profanity is beyond the pale. His tactic was vindicated when the Court ruled for Cohen in an opinion containing the dreaded expletive and authored by generally conservative Justice John Marshall Harlan II. |
| If a Supreme Court opinion in 1971 could include the word “fuck,” why can’t a federal appeals court dissent in 2026 include the phrase “swinging dicks”? Two reasons stand out. |
| First, the phrase “fuck the draft” was at the very center of the Cohen case, whereas nothing in the record of Olympus Spa included “swinging dicks.” Judge VanDyke’s use of the phrase was thus gratuitous. |
| Second, whereas Professor Nimmer and Justice Harlan mentioned “fuck the draft,” Judge VanDyke used the phrase “swinging dicks.” The use/mention distinction is a concept philosophers of language employ to make clear the difference between expressing something via a word or phrase versus simply referring to or quoting that word or phrase. If Jean says, “Donald Trump called a female reporter 'piggy’,” Jean has mentioned the word “piggy.” If Jean says to her son, “you eat too much, piggy,” she has used the word “piggy.” In these and other examples, use implies endorsement of a term in ways that mere mention typically does not. |
| Judge VanDyke’s Disrespect for Trans Women |
| Judge VanDyke’s use of the phrase “swinging dicks” was not merely crude and gratuitous. It conveyed disrespect for trans women that is wholly inappropriate coming from a federal judge. |
| Transphobia permeates Judge VanDyke’s Olympus Spa dissent. Consider: |
- The very phrase “swinging dick” essentializes transgender women who have not had gender confirmation surgery, defining them by their genitalia.
- Judge VanDyke repeatedly refers to the transgender woman whose complaint initiated the dispute in Olympus Spa as a man.
- Judge VanDyke trivializes the application of public accommodations laws to protect against transgender status discrimination as the product of “woke” lawmakers and judges. (He uses the term “woke” four times in his dissent.)
- Judge VanDyke uses a variation of “perverse” seven times in his dissent. Some of these uses are meant to convey that the Washington law is at odds with traditional understandings of sex discrimination, but at least one strongly indicates that he regards transgender status itself as problematic: he says the Ninth Circuit “should have reheard this case en banc and reversed this perversion.” Even if there is a wisp of plausible deniability in that expression too, the use of variations of “perverse” is likely deliberate, especially in light of Judge VanDyke’s description of the case outcome as a “legal abomination.” He further decries what he calls “the sick and twisted consequences of erasing sex as a coherent legal category.” “Perverse,” “abomination,” “sick,” and “twisted” are all terms traditionally used to denigrate practices and identities of sex and gender minorities.
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| None of that is to deny that the application of Washington’s public accommodations law to Olympus Spa raises difficult policy questions. Undoubtedly many, perhaps most or nearly all, of the spa’s cisgender female patrons and staff would be uncomfortable upon seeing male genitalia or by being seen naked by a transgender female patron with male genitalia. That is a genuine cost of the law. Legitimate arguments can be made about how to weigh these privacy and modesty interests against the equality and dignity interests of transgender Washingtonians. |
| But two points stand out. First, as the panel opinion and a concurrence in the denial of en banc review in Olympus Spa note, the case did not present the question whether Washington State made the right policy judgment in weighing the competing interests. It presented the question whether the state’s policy judgment violated the First Amendment. |
| Second, to the extent that one might nonetheless think it relevant to consider the underlying policy judgments in conducting the constitutional analysis, Judge VanDyke’s consideration of those judgments is entirely one-sided. He repeatedly and at length validates the concerns for privacy, modesty, and religiosity that weigh on the side of the spa, its owners, staff, and customers, but he nowhere acknowledges the stigmatic harm to transgender female Washingtonians that the state’s policy aims to combat—except to scorn it as the product of “[w]oke regulators” performing “Frankenstein social experiments.” |
| * * * |
| When President Donald Trump nominated Lawrence VanDyke to be a federal appeals court judge, the American Bar Association (ABA) rated him “not qualified” based on sixty interviews of judges and lawyers. That assessment was partly due to its conclusion that VanDyke was “arrogant, lazy, an ideologue and lacking in knowledge of the day-to-day practice including procedural rules.” In addition, the ABA letter noted a concern about whether he “would be fair to persons who are gay, lesbian or otherwise part of the LGBTQ community” in light of, among other things, the fact that “he would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.” |
| With his “swinging dicks” dissent, Judge VanDyke has demonstrated that the ABA was entirely correct. |
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