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‘This Is a Case About Swinging D***s:’ A Dissent Goes THERE on Transgender Issues (LAWSPLAINING) – Twitchy

March 13, 2026
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‘This Is a Case About Swinging D***s:’ A Dissent Goes THERE on Transgender Issues (LAWSPLAINING) – Twitchy
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Of course, we will start with a LANGUAGE WARNING. It’s a roughly PG-13 language warning and frankly, you have a pretty good idea what you are in for if you clicked on the headline, but there you go: You are hereby warned.





Yesterday, a judicial opinion dropped which started with the attention grabbing line “This is a case about swinging d—s,”—except without the censorship. And at least among legal nerds, it has led to a lot of discussion (and immature jokes and giggles).

But let’s start at the beginning. There were two Korean nude spas in Washington State run by Christians that had a policy of only allowing ‘women’ to enter. In this case, the spas defined the term ‘women’ as being either actual women, or men who have had their … ahem … plumbing altered to make them look more like women. To be blunt, that policy is more inclusive than we think many women would want in a nude spa, but it amounts to no entry if you have ‘beans and a frank.’

In any case, that was not good enough for a so-called ‘transgender woman’ (in other words, a man who says he is a woman) who had not yet had the surgery on his ‘plumbing.’ When he was denied entry on their (clears throat) ‘no beans and franks’ policy, he went to the state’s civil rights commission, because Washington anti-discrimination law prohibits discrimination based on gender identity. As far as we can tell, their civil rights commission didn’t insist that they let all men into these spas: Only the ones who claim to actually be women (even though they are not).

So, the spas sued in federal court to stop this law from being enforced. They lost in the district court, and then it went to a panel in the Ninth Circuit. We have explained this before, but most of the time when you go to the circuit court level of appeals, the entire court will not hear the case. Rather, they assign three judges from the court at random and they decide the appeal. And in this case, the three-judge panel upheld the district court, meaning that the spas still had to admit a guy with his beans and frank, if he claims to be a girl.

But that is not necessarily the end of the road for the spa owners. They can either appeal directly to the Supreme Court and ask them to hear the case. Or they could appeal to the entire Ninth Circuit—which is fifty one judges, including active and senior status judges—and as them to hear the case. They call the second route—seeking a rehearing before the entire court—‘en banc review.’ (And then the loser can appeal the Supreme Court anyway).

And that gets us to yesterday’s opinion that talked all about swinging d—s. The spa asked for en banc review, and the court denied it. And one judge, Lawrence VanDyke, dissented from the decision to deny en banc review, clearly wanting the entire court to hear the case and overturn it, which resulted in this:

Don’t worry about squinting to see what was written. We will quote that passage and a bit more from Judge VanDyke’s dissent, with mild censorship:

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.

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That’s the part Professor Cleveland quoted, but let’s go on:

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. Yet if harmful and unfortunate consequences were all this case was about, we’d have to shrug and say: ‘That’s what comes with living in a democracy.’ Unless the Constitution is implicated, we get what we voted for ‘good and hard.’

But some fundamental rights, like the right to the free exercise of religion, are constitutionally protected precisely to avoid majoritarian infringement. Unfortunately, in this case the panel majority has allowed Washington State bureaucrats to trample on such rights long secured by the Constitution. The Washington State legislature enacted the Washington Law Against Discrimination (‘WLAD’)…

To break in for a moment, that acronym is painful…

…to eliminate ‘discrimination against any of [the state’s] inhabitants.’ … To achieve this end, WLAD prohibits discrimination based on a long list of protected characteristics, including ‘sexual orientation.’ The statute defines ‘sexual orientation’ to include a person’s ‘gender expression or identity.’ …

In 2020, a man attempted to use WLAD’s antidiscrimination mandate to gain access to Olympus Spa, the state’s only traditional Korean, women-only, nude spa. Olympus Spa is owned and operated by a family of theologically conservative Christians who hold religious convictions that men and women should not be present together while unclothed unless married to one another. Based on these convictions, Olympus Spa denied the man entrance into its women-only, nude space. The man filed a complaint with state officials, who initiated enforcement proceedings and threatened Olympus Spa with prosecution. When Olympus Spa filed a complaint in federal court challenging WLAD on Free Exercise grounds, the district court ruled that the statute was neutral and generally applicable and dismissed the spa’s suit. On appeal, a split panel of our court affirmed the district court on the theory that WLAD did not mention religion or grant preferential treatment to comparable secular conduct, and held that the statute’s application here survives rational basis review.

But the panel majority’s decision mischaracterized WLAD’s text and failed to apply controlling Free Exercise case law. WLAD is not a categorical ban on discrimination in Washington State. Instead, as relevant to this case, the text of WLAD carves out two groups for preferential treatment. First, WLAD grants an exemption to similarly situated private organizations. Second, WLAD grants an exemption to a narrow category of religious activities—an exemption only available to religions that practice their faith by teaching, worshiping, or performing last rites.

WLAD’s exemption of private clubs grants preferable treatment to secular activities that pose a comparable threat to the government interest underlying the statute. As a result, WLAD is not generally applicable, and we should have subjected WLAD’s application in this case to strict scrutiny, a standard it cannot survive. And as the intervening publication of Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission…, has made clear, WLAD is also not neutral because it facially distinguishes between religious activities based on religious practitioners’ theological choices.

The panel majority inappropriately attempted to characterize this case as a straightforward application of Employment Division, Department of Human Resources of Oregon v. Smith … . That result is an affront to the Olympus Spa owners’ Free Exercise rights—one that is amplified by more general harms. Indeed, Washington has applied WLAD’s redefinition of sexual classifications in a perverse way that actually undermines legal protections granted to women. Moreover, that redefinition generates an irreconcilable conflict with Washington’s criminal laws against voyeurism and indecent exposure.

The Supreme Court’s recent Free Exercise jurisprudence controls this case. An optimist might expect that to have had some effect on the outcome of this dispute and our court’s en banc vote. But even where the Supreme Court has defined a clear rule protecting disfavored constitutional rights, never underestimate woke judges’ willingness to sacrifice those rights on the altar of ‘social progress.’





(Citations and footnotes omitted.) He goes on, but that pretty much sums up his position.

So the dispute is whether or not they can shove this case under the rule in a Supreme Court case called Employment Division v. Smith, 494 U.S. 872 (1990). We previously talked about the case when explaining why many states and the federal government have adopted Freedom of Religion Restoration Acts, but we will cover it briefly, here. Basically, to simplify it slightly, it was a challenge to Oregon’s flat prohibition on the use of peyote, a drug considered crucial to the practice of various Native American faiths. In that case, the Supreme Court held that because the law was ‘generally applicable’ it was constitutional, even though it would be essentially making a huge chunk of people’s religious practices illegal.

So, you can see that Judge VanDyke is pointing out that the laws are not generally applicable because the law makes exceptions both based on religious beliefs and for secular reasons. Seriously, by what logic can the state say that they can make an exception for a columbarium, but not a nude spa? We tend to think it makes more sense to exclude men from spaces where women gather nude, rather than where ashes are kept, if only because we are pretty sure ashes have no discernable genitalia. 

But what grabs everyone attention is bit about swinging d—s. We are juvenile enough to smile at the phrase and we aren’t embarrassed about the fact. As we always say: ‘Maturity is overrated.’ But the judge is actually making a good point. If you are offended by the phrase, imagine how much more offensive it is to actually see it if you are a woman—or in some cases, a teenage girl?

But of course, the other judges on the court were not happy, as noted in the piece linked here:

From the piece:

As you could imagine, this line infuriated Judge VanDyke’s colleagues.

Judge McKeown issued a statement that was joined by twenty-eight members of her Court (the Ninth Circuit has fifty-one total active and senior status judges):

…

‘The American legal system has long been regarded as a place to resolve disputes in a dignified and civil manner or, as Justice O’Connor put it, to ‘disagree without being disagreeable.’1 It is not a place for vulgar barroom talk. Nor is it a place to suggest that fellow judges have ‘collectively lost their minds,’ or that they are ‘woke judges[]’ ‘complicit’ in a scheme to harm ordinary Americans. That language makes us sound like juveniles, not judges, and it undermines public trust in the courts. The lead dissent’s use of such coarse language and invective may make for publicity or entertainment value, but it has no place in a judicial opinion. The lead dissent ignores ordinary principles of dignity and civility and demeans this court. Neither the parties nor the panel dissent found it necessary to invoke such crude and vitriolic language. Decorum and collegiality demand more.’

Judges Owens and Forrest (a Trump appointee) issued a one sentence statement:

‘Regarding the dissenting opinion of Judge VanDyke: We are better than this.’





(quotation marks added). Well, we would dispute whether or not the Ninth Circuit is actually better than this, as VanDyke notes:

Finally, I’ll respond briefly to my colleagues’ discomfort with how I’ve written this dissent. My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words in my opinion, yet exhibit the scruples of our dearly departed colleague Judge Reinhardt when it comes to the government trampling on religious liberties and exposing women and girls to male genitalia. That kind of selective outrage speaks for itself.

We also like this line:

Sometimes ‘dignified and civil’ words are employed to mask a legal abomination.

Sometimes civil and soft language is the enemy of understanding. His words might be a bit like a verbal splash of cold water, but sometimes a person needs that to understand what is being said.

To say that the opinion is getting us legal nerds talking is an understatement:

Literally the cut off word is just ‘please.’ As in ‘More of this, please.’

The Volokh Conspiracy article we quoted from above addresses the claim that VanDyke is really trying to audition for a Supreme Court appointment:

Some people suggest that Judge VanDyke is ‘auditioning’ for the Supreme Court. Before this opinion, I could have told you that he most certainly is not. Watch my interview with Judge VanDyke. After this opinion, you should have no doubts. He truly believes what he is writing, and uses his pen to advance his understanding of the law.





The cut off text:

Instead, it threatened prosecution for defying the state’s contorted reading of its anti-discrimination law.’

Yes, somehow the spa is apparently part of traditional Korean culture, that is still followed even though the owners are Christians—they have chosen not to let that western faith displace this eastern tradition … which is kind of interesting when you think about it. But as much the left celebrates diversity, they don’t want any diversity of thought on the transgender issue. Respect each other cultures … unless it conflicts with the transgender agenda.

The cut off text:

And I can only hope the current administration notices should [there] be a SCOTUS vacancy.

The cut off text:

The panel majority uses slick legal arguments and deflection to studiously avoid eye contact with the actual and horrific consequences of its erroneous opinion…

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

We are reminded of the time this author (a white man) represented a black man, and a white man on the other side allegedly called the client the n-word. We didn’t witness it, but his allegation was very credible because another black man who happened to be a friend of ours at the time reported the same behavior, under similar circumstances, by the same white guy. Frankly, we believed that this white man was calling these black men this racial slur because he believed (after watching one too many movies), that just on hearing the term a black person would lose all control and attack him, so he could say he is a victim of an assault. Neither man took the bait, which was the obviously wise thing to do.





(And, for the record, it is not a defense to a charge of assault and battery to say ‘someone called me a mean thing,’ even if it is one of the more offensive terms in the English language.)

But then we were writing a document to present to the court and this behavior was relevant and we had to ask the question. How do we characterize what was said? Do we say ‘he said the n-word?’ Or perhaps write ‘n——r’ instead of the actual word? Ultimately, we decided there was nothing like seeing the actual word, so we spelled it out without censorship, after apologizing for the breach of decorum. Sometimes if you don’t breach decorum, the meaning is lost.

The cut off text:

To reiterate, because I just can’t get over this, in a case about a biological male using litigation to force his way into a Korean Spa, the overwhelming majority of the Ninth Circuit, including a bunch of senior judges too for good measure, was upset that Judge VanDyke hurt their feelings by being too frank and speaking in plain English. 

We’re here talking about decorum? Seriously? Of what use is decorum when this is the result of the case? 

Maybe it’s because I have a daughter of my own now, but this is just sick and twisted.

We saw what you did there.

Okay, we didn’t notice the handle ‘Musk Adopt Me’ until we were almost finished, and we are amused.

But did you stay in a Holiday Inn Express?

This is a really impotent important dissent. A truly turgid defense of women’s right to privacy.

We noticed that, too. *Laughing*

Finally:

We are suspicious, too. Has anyone ever seen Jarvis and Judge VanDyke in the same room at the same time? We think NOT!

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Editor’s Note: The radical transgender activists want to take away girls’ opportunities, their privacy, and their safety. They even want to force you to call a man a woman.

But there are four lights.

Help us continue to report on their radical agenda. Join Twitchy VIP today and use promo code FIGHT to get 60% off your VIP membership.





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