The underlying case of Olympus Spas v. Armstrong, challenging the application of the Washington Law Against Discrimination is very much the culture war case that makes most people rightfully cringe.

In 2020, the HRC, the agency tasked with enforcing WLAD, received a complaint from a transgender woman. The complaint alleged that Olympus Spa “denied [her] services and stated that transgender women without surgery are not welcome because it could make other customers and staff uncomfortable.” Specifically, the Spa excluded preoperative transgender women who have not yet received gender confirmation surgery affecting their genitalia.

This isn’t about whether the spa (or the court) used the complainant’s chosen pronouns, but whether a Korean spa for women could prohibit a pre-op transgender woman from its services. Sound familiar?

The Spa, in response to the HRC’s notice, denied that its “biological women”-only policy violated WLAD and suggested that because the Spa requires nudity for certain procedures and in certain areas, “it is essential for the safety, legal protection and well-being of our customers and employees that we maintain adherence to this adaptation of a females-only rule.” The Spa also added an “OLYMPUS Spa Entry Policy” segment to its website. The policy states, “Biological women are welcome. It is the policy of Olympus Spa not to discriminate on the basis of race, color, national origin, sex, age or disability in its programs or activities, as required by applicable laws and regulations.”

The Spa challenged the Human Rights Commission’s finding of discrimination based on the First Amendment, arguing that the commission’s requiring the spa to change its entry policy constituted compelled speech, violated its free exercise of religion and right of association. Its suit was dismissed by the district court and affirmed on appeal.

The Spa’s free speech claim failed because the alleged “compelled speech”—the alterations to the Spa’s written entrance policy— was incidental to the Spa’s conduct. For the Spa’s free exercise claim, the district court held that WLAD was a neutral, generally applicable law and survived rational basis review. Finally, the district court determined that the relationship between the Spa and its customers was not an intimate association giving rise to First Amendment freedom of association protection.

The Spa moved for rehearing en banc, which was denied, giving rise to a dissent by Trump-appointed Ninth Circuit Judge Lawrence VanDyke.

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. Sometimes, it feels like the supposed adults in the room have collectively lost their minds. Woke regulators and complicit judges seem entirely willing, even eager, to ignore the consequences that their Frankenstein social experiments impose on real women and young girls.

What were the chances that a Lexis search would bring up a case with the language “swinging dicks” until now? The issue isn’t whether Judge VanDyke’s position was wrong, both because judges are entitled to disagree and, frankly, he has a very legitimate point. Indeed, many, myself included, agree that women, and especially young girls, are entitled to spaces where they won’t be staring at male genitalia if they don’t want to.

But could the point have been made without the need to dive head first into a pool of vulgarity? Could he have disagreed without being disagreeable? Granted, he appears to have intended to be shocking to emphasize his point as to the “jarring” assault of a penis in a women’s spa.

To add insult to injury, Judge VanDyke goes on to assert that his brethren have “collectively lost their minds,” and that judges are “complicit” with “Woke regulators” rather than in disagreement with the position taken by Judge VanDyke. While such conclusions, right or wrong, regularly appear in conversation, on social media and even in such formal legal commentary as a blawg post, is that the way one judge talks about other judges?

The nature of judicial prose has changed over the past decade, often not for the better. Judges write cutesy opinions, including poems and song lyrics. or cartoons embedded in decisions. They may well be fun and fascinating, which many people enjoy, but they demean the seriousness of the judiciary and the consequences of judge’s decisions. People’s lives and fortunes are at stake in legal proceedings. They are very serious to the litigants, and deserve to be taken seriously by the courts. They are not merely vehicles for judges to flaunt their stuff or have some fun.

More importantly, insults and vulgarity diminish the respect for the judiciary. If judges roll in the mud by their own choice, why shouldn’t they be treated as pigs by politicians, media and the public? At a time when judges are under threat for their lives and the lives of their families, it is more critical than ever to maintain a level of dignity and respect, even in disagreement, as befits the duties they have undertaken. I don’t necessarily disagree with Judge VanDyke’s position, but there was no cause to insult his fellow judges or write about “swinging dicks,” no matter how fascinating he finds the image.