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In a puzzling and offensive exchange, a Ninth Circuit Court of Appeals judge likened a female-only Olympus Spa policy to a “whites-only” policy. The remark was made during a federal appeals court hearing in which Olympus Spa is challenging the state of Washington for mandating the admission of transgender women (biological men) into the spa via the Washington Human Rights Commission.

Olympus Spa is a traditional Korean spa with locations in Tacoma and Lynnwood that operates under a “female-only policy” restricting transgender women unless they have “gone through post-operative sex confirmation surgery,” according to court documents. The spa cites the rule as “essential for the safety, legal protection, and well-being of our customers.”

The policy is based on the owner’s Christian values that demand “modesty as between the sexes” and that “a male and female should not ordinarily be in each other’s presence while in the nude unless married to each other.” The spa attracts deeply religious customers. It also has employees who “refuse to perform massages or body scrubs on naked men.”

But听Judge M. Margaret McKeown appeared skeptical of a female-only admissions policy.

“If you have a law that says ‘white applicants only,’ this is ‘biological women entrance only.’ It seems to me they’re quite parallel there,” McKeown said. “And you can’t have ‘white people only’ come into my restaurant, and then you say, ‘Well, no, we have a religious, spiritual nature to our restaurant, and when you get there, we serve you special food.’ This seems quite different.”

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How is a ‘women only’ spa policy similar to ‘whites only?’

9th Circuit Court of Appeals is hearing Olympus Spa v Armstrong. The case comes after WA state forced a women鈥檚-only, nude spa to accept trans females (biological men).

To Judge M. Margaret McKeown, it鈥檚 equivalent to a 鈥渨hites only鈥� business. We鈥檙e not living in serious times.

鈥� Jason Rantz on KTTH Radio (@jasonrantz)

Olympus Spa argues that Washington’s public accommodation laws, as enforced, violate their constitutional rights, including religious freedom, free speech and freedom of association by compelling them to admit preoperative transgender women (biological males) into their women-only, nudity-required spa.

They contend this enforcement infringes on their sincerely held religious beliefs about modesty, forces them to alter their speech by removing policy references to “biological women,” and undermines their ability to provide a safe and intimate space.

The comparison of a “biological women only” spa policy to a “whites only” policy in a restaurant or bathroom is both a false equivalency and an intellectually disingenuous argument. Racial discrimination is explicitly prohibited under federal law and deeply rooted in a history of oppression and inequality. The spa’s policy, on the other hand, is based on sex-based distinctions that serve a practical and culturally significant purpose in the context of a nude, women-only facility.

This policy is not grounded in prejudice or exclusion but in the preservation of privacy, safety and religious convictions. Equating these two scenarios and reducing a legitimate concern of women not feeling uncomfortable around male genitalia to a superficial analogy that undermines the plaintiffs’ arguments.

‘Whites only’ comparison is a tone-deaf response from judge

The judge’s dismissal of the Olympus Spa owner’s religious and cultural rationale as comparable to a “spiritual nature” justification for racial exclusion is profoundly tone-deaf.

The Olympus Spa policy is rooted in deeply held beliefs about modesty and the separation of sexes in intimate spaces, particularly in a setting that requires nudity for traditional Korean treatments. These convictions are protected by the First Amendment, which guarantees the free exercise of religion. The judge’s weird analogy fails to recognize the critical difference between arbitrary discrimination based on skin color and the spa鈥檚 reasonable reliance on biological distinctions to maintain the integrity of its services and the trust of its customers.

To lump these two policies together is not merely factually flawed, it weakens the legal protections afforded to religious exercise and cultural practices.

These are neither serious times, nor serious people

The judge’s stance appears to ignore the broader implications of compelling such businesses to alter their policies. This would effectively force Olympus Spa to violate its religious convictions and alienate its customer base, many of whom share those values, because of a transgender would-be customer who chooses a gender identity different from his biological reality.

Instead of protecting inclusivity, the court risks eroding the rights of religious and cultural minorities to operate according to their principles. We’re supposed to be afforded religious liberties, even if it upsets a handful of activists who wish to claim biology doesn’t matter.

The judge’s reductive and inflammatory comparison undermines the seriousness of the constitutional issues at stake. But then again, we’re not living in serious times and these are not serious people.