Ninth Circuit Judge Lawrence VanDyke, a Trump appointee, described a man's bid to gain entry to a women-only nude spa as a case about "swinging dicks" in his Thursday dissent, and then dared his colleagues to be more bothered by that phrase than by what their ruling actually does to women.
The Ninth Circuit upheld a decision finding that Olympus Spa, a traditional Korean, women-only, nude spa in Washington, cannot refuse service to clients with male genitalia under the state's anti-discrimination law. The case began in 2020, when a man filed a complaint with Washington's Human Rights Commission after the spa declined to serve him.
VanDyke's dissent did not tiptoe around the consequences.
According to the Daily Caller, VanDyke opened with a phrase designed to make the comfortable squirm:
"You may think that swinging dicks shouldn't appear in a judicial opinion."
He then turned the discomfort back on his colleagues:
"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."
Some as young as thirteen. That detail alone should have reoriented the entire panel's reasoning. It didn't.
VanDyke framed the stakes plainly:
"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."
There is no ambiguity in that sentence. There is also no ambiguity in the majority's decision to ignore it.
VanDyke accused the panel majority of using polished legal language to hide the grotesque reality of what they had sanctioned, writing that "dignified and civil" words are employed to mask a legal abomination. He reached for Shakespeare to sharpen the point:
"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?'"
That passage, from The Merchant of Venice, lands with precision. The majority wrapped its ruling in the sterile grammar of civil rights jurisprudence. VanDyke stripped it back to what it actually requires: women and girls, undressed, with no legal right to a space free from biological males.
He was blunt about the rhetorical dodge:
"The panel majority uses slick legal arguments and deflection to studiously avoid eye contact with the actual and horrific consequences of its erroneous opinion."
And then the gut punch:
"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."
The judges who wrote the majority opinion will never be forced to undress beside a stranger with male anatomy. The women at Olympus Spa will. That asymmetry is the entire case, and VanDyke refused to let anyone pretend otherwise.
The Christian owners of Olympus Spa had a policy that stated transgender women without surgery are not welcome because it could make other customers and staff uncomfortable. That policy reflected both religious conviction and the basic operational reality of running a nude facility for women.
The Ninth Circuit was unmoved. The court held that Washington's anti-discrimination statute does not "impermissibly burden the Spa's First Amendment rights to free speech, free exercise, or free association."
Consider what that means in practice:
This is not a close call dressed up as a hard one. It is the logical endpoint of a legal framework that treats biological sex as irrelevant and gender identity as supreme. When those two principles collide in a room full of undressed women, the Ninth Circuit chose the man.
This is not the first time VanDyke has broken from the polite conventions of appellate dissent. In March 2025, he published a video dissent in a Second Amendment case, recording himself giving a firearms demonstration in his chambers. He argued that "even a caveman with just a video recorder and a firearm" could show the majority's error, calling the majority's reasoning "factual fantasy."
President Donald Trump included VanDyke among 20 potential Supreme Court nominees in a September 2020 list. His willingness to say what other judges will only think has made him one of the most distinctive voices on the federal bench.
There is a pattern here worth noting. The same legal establishment that prides itself on empathy and lived experience suddenly discovers the virtues of cold proceduralism when the people harmed are women who simply want privacy. The same judges who would never tolerate "discomfort" as a reason to dismiss a discrimination claim treat the discomfort of naked women confronted with male anatomy as legally meaningless.
The left has spent years building a framework in which every identity group gets its own shield of legal protection. The project runs into a wall when two protected categories collide. Women and transgender individuals both claim shelter under anti-discrimination law. When a biological male demands entry to a space where women are nude, someone loses.
The Ninth Circuit chose. It chose the complainant over every woman who visits Olympus Spa. It chose ideology over the physical vulnerability of minors. It chose abstraction over the concrete reality of a thirteen-year-old girl in a room she believed was safe.
VanDyke's language was coarse. The ruling it protested is worse.
