Amicus Brief: Olympus Spa v. Armstrong

Olympus Spa is a Washinton state-based jjimjilbang, an all-women’s traditional Korean spa. It is rooted in centuries of Korean culture, with steam rooms, soaking pools, and body scrubs. All is done in the nude—which is not incidental but central to the services the spa provides—and only women are employed and allowed as customers (13 and older). The owners are traditional theologically conservative Korean Christians, and they hold the religious conviction that men and women should not be unclothed together unless married to each other.

A transwoman activist who presents as biologically male filed a complaint under Washington state’s anti-discrimination law. Writing on a blog, the activist posted, "I did it! I got the main naked lady spa in the area to change their policies and allow all self-identified women access regardless of surgery and genitals.” Despite the owners’ earnest attempts to work with the state, the Washington Human Rights Commission held that Washington law prohibits discrimination on the basis of gender identity in places of public accommodation.  

This was a near business-destroying decision, and it is causing immense problems for the spa. Olympus Spa challenged the ruling in the courts. The Ninth Circuit upheld the commission’s decision, and en banc review was denied despite vigorous dissents from four judges.

Now on petition to the Supreme Court, the Manhattan Institute has filed a brief in support. We argue that the Ninth Circuit failed to apply the correct test for religious discrimination. The court incorrectly held that the law did not burden the free exercise of religion because a religious private spa would be permitted to have a women-only policy. This misundertands recent Supreme Court decisions. The Supreme Court should grant review and clarify the application of the Free Exercise Clause. 

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

With thanks to associate Addison Gills