VanDyke’s colleagues on the bench reacted with outrage, many of them taking offense that a fellow member of the U.S. judiciary would utter such obscenity into the court record.

To VanDyke, that was the point.

“You may think that swinging d***s shouldn’t appear in a judicial opinion,” VanDyke wrote. “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 13 — to be visually assaulted by the real thing.”

In conversations with the Washington Examiner, women’s rights advocates agreed that VanDyke’s dissent, though coarsely worded, aptly conveys the crude reality that many women and young girls face because of state-mandated “transgender inclusion” policies.

Those feminist leaders expressed hope that his opinion signals that some judges now have a better understanding of the safety concerns at issue in similar bodily privacy cases. Judges, feminist leaders hope, are increasingly recognizing the plight of vulnerable women forced to share intimate spaces with naked men in the name of transgender affirmation.

Elspeth Cypher, the president of the Women’s Liberation Front and a retired Massachusetts Supreme Court judge, said VanDyke opened with the “perfect” first sentence.

“In six words he summed up the problem in a vivid manner that crystallizes the problem,” Cypher told the Washington Examiner. “And it shows us what the impact of the opinion will be on women and girls.”

A traditional, immigrant-owned spa

The appeals case, Olympus Spa v. Armstrong, stems from a civil rights complaint filed by Caleb “Haven” Wilvich, then a fully intact biological man who identified as a woman.

Wilvich was denied entry to Olympus Spa, a fully nude wellness facility near Seattle designed specifically for female customers, including girls as young as 13 years old.

Olympus Spa, the state’s only traditional Korean spa, is meant to provide women with a safe space to relax together and cleanse themselves, all while unclothed. In Asian cultures, sex-segregated bathhouses such as Olympus Spa are a crucial part of women’s social life and bear profound historical significance as a place of rejuvenation rooted in centuries-old traditions of communal hygiene.

In 2020, Wilvich reported the women’s spa to the Washington State Human Rights Commission, claiming that the business’s female-exclusive entrance policy violated a subsection of the Washington Law Against Discrimination.

WLAD, a public accommodations law, prohibits places of business from discriminating on the basis of sexual orientation, among other protected classes. Despite the fact that sexual orientation relates to romantic attraction, it is defined under WLAD to include “gender expression or identity.”

Wilvich, formerly a self-described “tall, bearded transfemme,” celebrated the state commission’s ultimate decision to protect what it viewed as a right to access the women’s spa as a pre-operative biological man.

“I did it!” Wilvich announced at the time. “I worked with the Washington Human Rights Commission and got Olympus Spa (the main naked lady spa in the area) to change their policies and allow all self-identified women access regardless of surgery and genitals.”

Olympus Spa’s owners, a Christian family of Korean immigrants, sued the state on free speech and religious rights grounds. Their lawsuit eventually reached the 9th Circuit Court of Appeals, where a three-judge panel ruled against Olympus Spa in May 2025.

The spa then petitioned for either a panel rehearing or a rehearing en banc, a rare type of rehearing before all active judges of the appeals court.

On Thursday, that same panel of two Clinton-appointed judges and one Trump appointee voted similarly along partisan lines against a panel rehearing, which could have resulted in the same outcome anyway.

The spa’s en banc petition, meanwhile, failed to receive a majority of votes from the entire court of 51 circuit judges in support of a full-court review.

VanDyke dissents, sparking firestorm in the federal judiciary

VanDyke, a Trump appointee who was not on the original panel, weighed in with a stand-alone opinion dissenting from the court’s collective decision to deny rehearing the case en banc.

“This is a case about swinging d***s,” VanDyke wrote. “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.”

VanDyke’s dissent drew several scathing rebukes that were included in the 105-page filing of all opinions accompanying the court order on Thursday.

“We are better than this,” one judge appointed by Barack Obama countered in a single-sentence reply.

In another written response, 27 judges, including Obama-appointed chief judge Mary Murguia and senior circuit judge Margaret McKeown, an appointee of former President Bill Clinton who authored the majority opinion, denounced VanDyke’s commentary as “vulgar barroom talk.”

“The lead dissent ignores ordinary principles of dignity and civility and demeans this court,” their statement said. “Neither the parties nor the panel dissent found it necessary to invoke such crude and vitriolic language. Decorum and collegiality demand more.”

McKeown, joined by six other ​judges, wrote separately that VanDyke’s “crass language serves, at most, to distract from what this case is about,” which is, in their view, anti-transgender discrimination.

“The majority simply held that the WLAD applied to Olympus Spa, a commercial establishment, when it purported to deny admission to certain transgender women,” McKeown said.

McKeown accused VanDyke of airing “personal grievances entirely unbecoming of members of this court” when he criticized his colleagues for refusing to reconsider the matter.

“It is certainly not a case involving ‘[w]oke regulators’ and ‘complicit judges’ out ​to harm ‘women and young girls.’ … Those assertions describe a case entirely different from the one presented to the panel,” McKeown insisted.

‘Radical feminist’ guidance cited as authoritative source in VanDyke’s dissent

VanDyke’s dissent amply referenced the amicus brief of Women’s Declaration International USA, marking one of the only known times that a federal judge has quoted a contemporary “radical feminist” group in a judicial opinion.

The only other instance was in 2022, when the 9th Circuit decided in Green v. Miss USA that an Oregon-based beauty pageant may maintain its “natural-born female” participation policy. A concurring opinion, also written by VanDyke, cited an amicus brief from the Women’s Liberation Front in a footnote.

Kara Dansky, who wrote WDI USA’s amicus brief in the Olympus Spa case, said its extensive citation is a cause for celebration.

“It is significant that federal judges are starting to take notice of the radical feminist objections to ‘gender identity,’” Dansky told the Washington Examiner. 

Cypher, the president of WoLF, echoed that it was encouraging to see VanDyke rely heavily on WDI USA’s knowledge of the issue.

“It just might be a big turning point in ‘transgender’ lawfare,” Cypher told the Washington Examiner.

VanDyke appeared to derive much of his legal analysis, which examined male interloping in the context of voyeurism and indecent exposure laws, from WDI USA’s brief, which had explained that argument in detail.

In his dissent, VanDyke noted that men undressing in front of nonconsenting women would be widely considered a sex crime in any other circumstance, a consideration that the affirming judges did not take into account.

That idea, contextualizing unwanted male nudity as sexual predation, was laid out in WDI USA’s brief:

“Until recently, everyone seemed to understand that men who invaded women’s intimate spaces were rightly shamed and charged with criminal offenses. That understanding seems to have been forgotten with the emergence of ‘gender expression or identity’ in law and society, including in Washington. Today, if a man like [Wilvich] says that he ‘is transgender’ or that he has a ‘gender expression or identity’ different from his sex, our laws simply hold the doors wide open for him to access places where women and girls are nude or otherwise in a state of vulnerability.”

By the complainant’s own account, Wilvich was sexually attracted to women. “I enjoy dating women … in a way that I just don’t get the same fulfillment with men,” Wilvich wrote in a public blog post.

VanDyke also mentioned the 2021 criminal case of Darren Merager, a 52-year-old man charged with nine felony counts of indecent exposure under the California Penal Code after allegedly exposing his erect penis in the women’s side of the family-friendly Wi Spa in Los Angeles.

Merager, a registered sex offender with a lengthy criminal history of previous indecent exposure charges, was able to gain access to the Korean spa’s female section by claiming that he identified as a woman. California’s civil rights law, such as WLAD, prohibited Wi Spa from separating the facility by biological sex in that case.

“It is a sad but certain fact that WLAD and similar ‘anti-discrimination’ laws interpreted this way will be used by sexual deviants to prey on women in female-only spaces,” VanDyke wrote.

WDI USA’s amicus brief, notably, compared the two cases, saying that the Wi Spa saga was “remarkably similar” to the one in Washington.

“It’s very clear that Judge VanDyke not only read the WDI USA brief, but that he considered it carefully,” Dansky said.

In fact, VanDyke made points that feminists who believe in the objective reality of the sex binary have been making in court briefings for decades — for instance, that redefining sexual classifications to encompass gender identity erases equal protections for women.

LAWFARE TARGETING TRUMP’S GENDER ORDER THREATENS PROTECTED STATUS FOR WOMEN

“This all makes a great deal of sense since — to recognize and protect women as a class — the law must rely upon a coherent conception of what a woman is,” VanDyke said. “Without a stable legal definition of ‘women,’ it becomes impossible to protect women from discrimination, let alone preserve their access to single-sex spaces in accordance with Equal Protection jurisprudence.”

VanDyke said, as it has been enforced by Washington in the Olympus Spa case, WLAD essentially requires that public establishments permit sex crimes to be committed on commercial property against their own patrons.

“And simultaneously,” VanDyke said, “WLAD as applied by Washington’s government provides an effective legal shelter for sexually deviant men to prey upon vulnerable women and girls without the threat of prosecution.”

VanDyke argued that Washington’s “perverse” application of WLAD insulates such sexual predators against criminal charges, creating “an irreconcilable conflict with Washington’s criminal laws against voyeurism and indecent exposure.”

WDI USA had raised that very concern in its amicus brief. “How can California enforce its own indecent exposure law in that case if Mr. Merager was legally permitted to be in the women’s section of the spa under a different provision of California law?” WDI USA questioned.

Indeed, Merager was later acquitted on all felony counts.

Was ‘swinging d***s’ an appropriate opening line in a published legal opinion?

VanDyke had acknowledged in his opinion: “Yes, the introduction to this dissent intentionally uses indecorous language. But that is quite literally what this case is about. Male genitalia is precisely (and only) what the Spa, for religious reasons, objects to admitting into its female-only space. The fact that so many on our court want to pretend that this case is about anything other than swinging d***s is the very reason the shocking language is necessary.

“The panel majority uses slick legal arguments and deflection to studiously avoid eye contact with the actual and horrific consequences of its erroneous opinion,” VanDyke said. “Squirm as we might, I think it’s only fair for our court to have a small taste of its own medicine.”

VanDyke said that more civilized-sounding verbiage is often employed to “mask a legal abomination.”

“Sometimes coarse and ugly words bear the truth,” VanDyke wrote. “I coarsely but respectfully dissent from our court’s willingness to leave this travesty in place.”

Some legal observers on the feminist front likewise see the clamor over VanDyke’s jarring statements as a much-needed jolt to the judicial system. If his unpleasant wording about penises in a published legal document causes discomfort, they argue, perhaps more judges will think of the women and children who actually have to witness the male member swinging about.

While the messaging may be perceived as too over-the-top even by those in agreement with VanDyke’s position, others find his phrasing effective.

Having been an appellate justice on a high court, Cypher said she tended to take great care with her opinions, was always concerned about decorum, and constantly deliberated over word choice.

“In this case, however, I think that such reticence has done us all a disservice,” Cypher said. “Gender identity language is inherently, some say intentionally, vague. We cannot afford to be vague anymore. Women have lost too much ground in reproductive health care, sports, scholarships, prisons, spas, bathrooms, locker rooms, and care facilities. You cannot defend women if you cannot define women. And women do not have penises, swinging or otherwise.”

TRANSGENDER INMATES SEPARATED FROM FEMALES AT SPECIAL NEEDS WOMEN’S PRISON FOLLOWING SEXUAL ABUSE CLAIMS

Most people do not seem to understand what the mantra “transwomen are women” truly means, Cypher said. “When we write about it politely, without using disturbing words or photographs, people do not recognize how serious this issue is for women. “

Cypher said that the other judges chiding VanDyke “for using plain language to make a point protects them from having to really face and think about what their decision does to women and girls.

“I say, thank you, Judge VanDyke, for stating the facts on the ground plainly,” Cypher said. “I hope those who feel a need to speak against his choice of language pause and really think about why they do not want him to talk like this. The actual painful facts for women and girls were not hidden by Judge VanDyke. For that, I and many women I have spoken to, are grateful.”

Dansky, an attorney with an extensive background in filing briefs in federal cases, said that she was “horrified” when she first read VanDyke’s profanity-laced opening line, initially worried that his irreverent wording would degrade the integrity of the judiciary.

However, she read on, finding merit in VanDyke’s aggressive approach.

“Radical feminist groups such as WDI USA and WoLF have been filing amicus briefs regarding these topics for at least a decade, using calm and polite language,” Dansky said. “Judges such as those in the majority in Olympus Spa simply haven’t listened. Now, perhaps they will.”

Olympus Spa might appeal to the Supreme Court next, and if the justices were to mull over whether to hear the case, “swinging d***s” could be a proverbial wrecking ball that breaks through to the high court.