Olympus Spa v. Armstrong, (9th Cir., March 12, 2026), is the denial of a panel and en banc rehearings to two Korean Spas that lost their 1st Amendment challenges to application of Washington state's anti-discrimination provisions to the spas admission policies. The spas admitted only "biological women", including transgender women who had received gender confirmation surgery. They excluded transgender women who had not completed that surgery. The original 3-judge panel denied a rehearing, but issued an amended majority opinion amending the opinion originally issued on May 29, 2025 (full text of original opinion). The court then denied en banc review. Three opinions dissenting from the denial of en banc review were filed. Judge VanDyke's dissenting opinion led to an unusual Statement concurred in by 27 Ninth Circuit judges saying:
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.
