[00:00:00] Speaker 02:
This case is set for 20 minutes per side, and it involves some novel issues.

[00:00:12] Speaker 02:
And so we'll welcome the appellant argument.

[00:00:18] Speaker 02:
If you'd like to make a rebuttal argument, please stop before the full 20 minutes.

[00:00:27] Speaker 04:
Thank you and good morning Judge McCune, Judge Gould and Judge Lee.

[00:00:32] Speaker 04:
Kevin Snyder for Olympus Spa may please the court.

[00:00:37] Speaker 04:
Again, as Judge Gould has mentioned, I will attempt to reserve a few minutes for rebuttal.

[00:00:45] Speaker 04:
The spa is a place where women gather to share and experience the physical and spiritual healing and renewal through traditional Korean culture called jjimjibong.

[00:00:58] Speaker 04:
This cultural experience goes back 600 years, is exclusively for females, and nudity is required.

[00:01:08] Speaker 04:
It is the spa's position that the women sharing in this cultural and spiritual experience

[00:01:14] Speaker 04:
have associational and free exercise rights.

[00:01:18] Speaker 04:
Washington's public accommodation law should not apply to the spa because naked women and teenage girls are not publicly available goods or services that males are entitled to view when females do not consent.

[00:01:36] Speaker 04:
Now, there are two venues that I would like the court to keep in mind.

[00:01:42] Speaker 04:
One is the physical venue.

[00:01:44] Speaker 04:
That is the bricks and mortars spa.

[00:01:48] Speaker 04:
The other venue is a virtual venue.

[00:01:50] Speaker 04:
That is the website.

[00:01:52] Speaker 04:
And these two need to be separated out.

[00:01:56] Speaker 04:
On the website is the language that is in dispute in the freedom of speech claim.

[00:02:04] Speaker 04:
And it is that biological women are welcome.

[00:02:08] Speaker 04:
facing the threat of prosecution, the SPA removed that language.

[00:02:13] Speaker 04:
Now, the required removal of that language is a content-based restriction on speech by the state.

[00:02:20] Speaker 04:
Neither the state nor Tsimigchi, frankly, dispute that in any meaningful way.

[00:02:29] Speaker 04:
The censorship of the SPA's message on its website is the basis for the free speech action.

[00:02:36] Speaker 00:
So basically, just to understand your argument, it's that initial phrase, biological women are welcome, which was removed before the pre-filing settlement, correct?

[00:02:48] Speaker 04:
Correct.

[00:02:49] Speaker 00:
And remains removed?

[00:02:51] Speaker 04:
It is still removed.

[00:02:54] Speaker 00:
It would be helpful for me for you to explain how this differs from the fair case, because fair

[00:03:05] Speaker 00:
or Rumsfeld v. Fair, and remember that's the military case.

[00:03:09] Speaker 00:
It stands for the proposition that compelled changes in conduct, which might incidentally compel some changes in speech, like an entrance policy, are not content-based speech.

[00:03:21] Speaker 00:
Why doesn't this case fall right into that arena?

[00:03:26] Speaker 04:
Your Honor, thank you for the question.

[00:03:29] Speaker 04:
The SPA's position is that we do not distinguish fair, we embrace fair.

[00:03:36] Speaker 04:
And let me explain why.

[00:03:39] Speaker 04:
Under fair, the military was required per, I'm sorry, the law schools were required per federal statute to allow military to have recruiting individuals on the campus.

[00:03:54] Speaker 04:
The law school said, look, this violates freedom of speech, and the Supreme Court said very clearly that the law schools could place…

[00:04:09] Speaker 04:
Language on their bulletin boards that Contradict the military's message and say anti-military things on their bulletin boards So therefore it didn't was not a incidental burden on Speech or was only an incidental burden on speech here.

[00:04:27] Speaker 04:
We have quite the opposite is that not only must the under the public accommodations law

[00:04:35] Speaker 04:
Must the SPA require transgender women, males, to enter the SPA, but they can't even post something on their own website?

[00:04:46] Speaker 04:
That is different than FAIR.

[00:04:48] Speaker 04:
FAIR allowed the language on the bulletin boards here.

[00:04:52] Speaker 04:
Language on the website is disallowed.

[00:04:55] Speaker 03:
So we think – I guess the distinction here might be if – I think if –

[00:04:59] Speaker 03:
You had the SPAs views on transgendered women on the website, just our views on it.

[00:05:05] Speaker 03:
And the government forced you to take it down.

[00:05:08] Speaker 03:
I think you have a very strong First Amendment case here.

[00:05:10] Speaker 03:
I guess the wrinkle is that statement was in the web page that discussed admission policy.

[00:05:16] Speaker 03:
So that seems like it may be in the realm of conduct, not pure speech.

[00:05:21] Speaker 03:
Well, we believe it is pure speech.

[00:05:25] Speaker 03:
And how do you separate the conduct and the speech in this context?

[00:05:29] Speaker 03:
Again, if it was just a separate page saying these are abuse and transgender, I think you have absolute right to do that.

[00:05:34] Speaker 03:
When it's on admissions policy, it seems like it's kind of bleeding into the conduct.

[00:05:40] Speaker 04:
So the way we distinguish that is that we go back to the issue of the two venues.

[00:05:48] Speaker 04:
One is virtual and one is physical.

[00:05:51] Speaker 04:
And we believe the state is conflating those two to try to pull this into a conduct category.

[00:06:01] Speaker 00:
And we think that that's- Who can go into the spa?

[00:06:05] Speaker 00:
Can a transgender female enter the spa before they change the language?

[00:06:12] Speaker 00:
What was the admission policy?

[00:06:14] Speaker 04:
Only women, biological women, or transgender women who have had bottom surgery could enter the spa.

[00:06:25] Speaker 00:
Right.

[00:06:25] Speaker 00:
So that's like the Supreme Court said in fair.

[00:06:28] Speaker 00:
If you have a law that says white applicants only, this is biological women

[00:06:35] Speaker 00:
entrance only it seems to me they're quite parallel there and you can't have white people only can come into my restaurant and then you say well no that's really we have a religious spiritual nature to our restaurant when you get there we serve you special food this seems quite different

[00:06:58] Speaker 04:
If I could address the whites-only language in FAIR.

[00:07:03] Speaker 04:
In that, first, whites applicant – it said whites applicants only.

[00:07:09] Speaker 04:
That is the language of exclusion.

[00:07:12] Speaker 04:
This says biological women are welcome.

[00:07:15] Speaker 04:
And if I could draw a parallel to employment recruitment, it says it is legal for an employer, government or otherwise, to say persons with disability, military veterans, racial minorities are encouraged or welcome to apply.

[00:07:34] Speaker 04:
They don't say military veterans only, women only can apply.

[00:07:40] Speaker 04:
So we think that that is a distinction.

[00:07:44] Speaker 04:
And I would point the court also to this court's decision in Greene v. Miss USA.

[00:07:52] Speaker 04:
In that case, the language was – they had a natural-born female.

[00:08:01] Speaker 04:
And here we have biological women are welcome.

[00:08:04] Speaker 04:
We don't believe that there is a meaningful distinction between biological women are welcome, in this case, and natural-born female in green versus miss USA.

[00:08:20] Speaker 04:
Let's have other questions.

[00:08:22] Speaker 04:
Let me continue on.

[00:08:25] Speaker 00:
So let me just take you to your distinction between the website and then when you get to the spa.

[00:08:32] Speaker 00:
So if you were to leave that on the website, biological women welcome, and then a transgender female shows up at the

[00:08:43] Speaker 00:
spa, there's also the same admissions policy, right?

[00:08:48] Speaker 04:
There is, if there is.

[00:08:49] Speaker 00:
And can she come in?

[00:08:51] Speaker 04:
If she doesn't have bottom surgery, then the answer is no.

[00:08:57] Speaker 00:
And so that's... Well, it's not really biological women are welcome.

[00:09:03] Speaker 00:
It means non-biological women are not welcome.

[00:09:08] Speaker 00:
I mean, that's the reality.

[00:09:12] Speaker 04:
Persons present, people who are not vaginally presenting, forgive me for using those terms, but cannot use the spa.

[00:09:22] Speaker 00:
Are not welcome.

[00:09:23] Speaker 04:
Yes.

[00:09:24] Speaker 04:
And the reason is very practical is that there is nudity in the spa.

[00:09:30] Speaker 04:
It is required.

[00:09:33] Speaker 04:
So I'd like to address the issue, if I may, on the commercial nature of the spa.

[00:09:42] Speaker 04:
And there is both the state and one of its friends of the court have made the argument that businesses don't have

[00:09:56] Speaker 04:
associational rights.

[00:09:58] Speaker 04:
The SPAW would answer in two ways on that.

[00:10:02] Speaker 04:
One is on case law, and the other is on a constitutional principle.

[00:10:06] Speaker 04:
As to case law, this court in Roommates.com found that there was associational interest granted there, and Roommates was indeed a for-profit business.

[00:10:25] Speaker 04:
Also, as to a constitutional principle, this court said again in Green versus Miss USA that a for-profit entity, beauty pageant, still has free speech rights.

[00:10:40] Speaker 04:
And the Supreme Court said the same thing in 303 Creative.

[00:10:45] Speaker 04:
And Masterpiece Cakeshop, the bakery, was a for-profit business.

[00:10:51] Speaker 04:
It had free exercise rights.

[00:10:53] Speaker 04:
This court and the Supreme Court have used the analogy.

[00:10:57] Speaker 04:
They said a newspaper has paid subscriptions and it has advertisements that are paid for, but it still does not lose its free press rights.

[00:11:12] Speaker 04:
There's no principled reason if free speech, free exercise of religion, and freedom of the press are still available when there are commercial interests that associational rights should also not be available.

[00:11:26] Speaker 00:
So if you have a public accommodation, can you say no blacks?

[00:11:31] Speaker 00:
That's association.

[00:11:32] Speaker 04:
Okay.

[00:11:34] Speaker 04:
Let me deal specifically with the issue of race and the analogy.

[00:11:38] Speaker 04:
And first, we believe that the rhetoric used by the state and its amici are reprehensible to be frank because they are comparing traditional Koreans and conservative Christians with white supremacists.

[00:11:57] Speaker 00:
Well, I'm not, I'm not doing that.

[00:11:59] Speaker 00:
I'm not going into that rhetoric.

[00:12:02] Speaker 00:
I'm just asking if I walk out of the courthouse and I go to a restaurant and it's, and it's a, we would all agree that's a public accommodation under the Washington law.

[00:12:13] Speaker 00:
And then it says no blacks or whites welcome.

[00:12:20] Speaker 04:
I'm sorry.

[00:12:20] Speaker 00:
So what would be your response to that?

[00:12:22] Speaker 04:
The response is this.

[00:12:25] Speaker 04:
And is that the court in 303 Creative dealt with that issue and with the dissent and said that's pure fiction.

[00:12:35] Speaker 04:
Secondly is there is a distinction, we believe, that should be drawn between race and other categories, protected classes.

[00:12:43] Speaker 00:
We believe.

[00:12:44] Speaker 00:
What?

[00:12:45] Speaker 00:
What's the Supreme Court's foundation for that?

[00:12:47] Speaker 04:
Well, they just said it.

[00:12:49] Speaker 04:
They said it's pure fiction.

[00:12:52] Speaker 04:
But if I could explain why, and that is race is historically and…

[00:13:02] Speaker 04:
constitutionally distinct from other protected classes.

[00:13:07] Speaker 04:
The reason historically is there was a – there was race-based slavery in the British colonies and then for close to 90 years into the republic, and then there was a civil war.

[00:13:21] Speaker 04:
So historically, race is distinct, and then constitutionally,

[00:13:26] Speaker 04:
As a result, there were the Civil War amendments.

[00:13:30] Speaker 04:
So based on that, race is its own unique category.

[00:13:36] Speaker 04:
It is explicated in those Civil War amendments.

[00:13:43] Speaker 04:
If I may, I have.

[00:13:45] Speaker 00:
Go ahead.

[00:13:46] Speaker 00:
So let's move to national origin instead of race.

[00:13:50] Speaker 00:
So I have a restaurant that says

[00:13:56] Speaker 00:
Non-Korean's not welcome.

[00:14:02] Speaker 00:
Is that legal under the Washington law against discrimination?

[00:14:05] Speaker 04:
That's not legal under Washington and public accommodations law, and we would not assert that position.

[00:14:13] Speaker 04:
We would assert that the specific position regarding race is the outlier.

[00:14:19] Speaker 00:
Well, but I asked about national origin, not race.

[00:14:23] Speaker 04:
Race, I'm sorry, national origin, a business or any other association cannot exclude persons based on national origin.

[00:14:33] Speaker 04:
And that's our position on that.

[00:14:35] Speaker 04:
If I can move just for the next minute or two, move to free exercise.

[00:14:42] Speaker 04:
The question really is, how does the SPA negotiate employment division versus Smith?

[00:14:50] Speaker 04:
And the primary issue with that is that under employment division versus Smith, a law has to be neutral and generally applicable.

[00:15:02] Speaker 04:
And then if it is neither of those, then it goes to substantial burden.

[00:15:08] Speaker 04:
Our position is that the public accommodation laws are neutral, but they are not generally applicable.

[00:15:17] Speaker 04:
And we point to the carve-outs.

[00:15:21] Speaker 04:
Regulation can fail general applicability.

[00:15:25] Speaker 04:
One is through individualized assessments, mechanism of individualized review.

[00:15:28] Speaker 04:
That is not present here.

[00:15:30] Speaker 04:
But what is present are statutory carve-outs, and there are several here.

[00:15:36] Speaker 04:
And I would like to just direct the Court's attention to private clubs.

[00:15:42] Speaker 04:
A private club can have dues.

[00:15:46] Speaker 04:
It could have charge for entrance fees and events.

[00:15:51] Speaker 04:
It could have a spa, whirlpools, masseuses, all of those things.

[00:15:56] Speaker 04:
And yet, it can exclude whomever it wants because it's not subject to the public accommodations laws.

[00:16:04] Speaker 04:
The spa.

[00:16:06] Speaker 04:
Has these things but it is it cannot exclude so we believe based on that carve out there is no general applicability then from that so Are you saying that the spa is a private club?

[00:16:22] Speaker 04:
No, we're saying that whenever there is a statutory carve out for something and let me then then the

[00:16:31] Speaker 00:
You know, we have a lot of law about private clubs.

[00:16:35] Speaker 00:
Like it or not, you can have, if you truly have a private club, you can, as we know, have what some people might consider discriminatory admission or

[00:16:49] Speaker 00:
subscription policies but if this does not qualify as a private club I'm having trouble understanding why the carve out somehow gives you in effect a leg up here.

[00:17:02] Speaker 04:
I could answer that if I could answer that by the court's permission to read two lines one from two Supreme Court cases I believe answer the question one is from Tandon

[00:17:12] Speaker 04:
versus Newsom, government regulations are not generally applicable whenever they treat any comparable secular activity more favorable than religious exercise.

[00:17:25] Speaker 04:
The court put the word any in italics.

[00:17:30] Speaker 04:
And then the other language is from Fulton versus Philadelphia.

[00:17:34] Speaker 04:
A law lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government's asserted interest in a similar way.

[00:17:45] Speaker 04:
And with that, I'm going to reserve my final three minutes.

[00:17:48] Speaker 04:
Thank you.

[00:17:50] Speaker 02:
Thank you, counsel.

[00:17:53] Speaker 02:
Well, you're now from Belize.

[00:18:20] Speaker 01:
May it please the court, Neil Luna for the Human Rights Commission.

[00:18:24] Speaker 01:
Good morning.

[00:18:27] Speaker 01:
The wall ad is a public accommodations law that carefully balances an individual's First Amendment rights with prohibiting businesses that are open to the public from excluding individuals because of the color of their skin, because of their religious beliefs, because of their gender identity, or for any other protected class status.

[00:18:49] Speaker 01:
HRC respects the spa's Korean cultural roots and its Christian religious beliefs.

[00:18:54] Speaker 01:
At the same time, this court should affirm the district court for three reasons.

[00:18:59] Speaker 01:
One, the spa's nudity requirement is based in their Korean heritage, not in their religious beliefs.

[00:19:07] Speaker 01:
And according to the Supreme Court, only religious beliefs are protected by the free exercise clause.

[00:19:15] Speaker 01:
The spa's sale of body scrubs, restaurant services, sauna sessions, and whirlpool dips is not inherently expressive conduct that is protected by either the free speech clause or the right to expressive association.

[00:19:32] Speaker 01:
And three, the spa is not an intimate association just because some customers are receiving services while unclothed.

[00:19:41] Speaker 01:
Colloquial intimacy is not First Amendment intimacy.

[00:19:45] Speaker 01:
The spa requests a breathtaking expansion of the exemptions to public accommodations law.

[00:19:52] Speaker 01:
If the spa is correct, any business that is open to the public and religiously owned would be able to exclude customers based on a protected class if the owner said that doing so was consistent with their religious beliefs.

[00:20:09] Speaker 01:
Public businesses cannot pick and choose their customers based on a protected class.

[00:20:15] Speaker 01:
The SPA wants the privilege of being a for-profit business open to the public.

[00:20:19] Speaker 01:
And for that privilege, it has a responsibility for complying with the WAL-AS requirements not to discriminate based on that protected class.

[00:20:29] Speaker 01:
The SPA's gender identity discrimination, in this case, Your Honor, is part of a long history of exclusionary policies by businesses, exclusionary policies that public accommodation laws were enacted to prohibit

[00:20:43] Speaker 01:
from railway cars to restrooms, from buses to barbecue joints and lunch counters.

[00:20:51] Speaker 03:
Could you address our decision in roommates.com where we said there likely is an associational right to select roommates and one of the things our court said was well you should be able to pick your own roommates because there's a chance that a female roommate may come out of the shower in a towel in front of a male roommate and they said that's kind of certain intimate nature of it.

[00:21:14] Speaker 03:
I mean, here it's much more intimate.

[00:21:16] Speaker 03:
I guess according to the state's position, you could have a teenage girl naked in front of someone who has male genitalia.

[00:21:26] Speaker 03:
That does seem to implicate much more intimate concerns than the example that we said in roommate.com of a female roommate with a towel on coming out of the shower.

[00:21:35] Speaker 01:
So can you address the roommate decision?

[00:21:38] Speaker 01:
Yes, Judge Lee.

[00:21:39] Speaker 01:
The spa is not like roommates.com.

[00:21:42] Speaker 01:
The spa's customers, the relationships between the spa's customers and employees is not the same as a roommate.

[00:21:52] Speaker 01:
Your Honor is referring to the right to intimate association here, I believe.

[00:21:56] Speaker 01:
And so there's a test for what is an intimate association under the Constitution.

[00:22:01] Speaker 01:
What the Supreme Court has said, and what this court has said, for example, in the roommates.com case, is that we focus here on those special

[00:22:15] Speaker 01:
selective personal, deeply personal relationships.

[00:22:20] Speaker 01:
And so we look at the size of the relationship, we look at the selectivity in the decisions made to both begin and maintain the relationship, and we look at the exclusivity, so seclusion from others in critical aspects of the relationship.

[00:22:36] Speaker 01:
And in roommates.com, there were so many, roommates not only had access to the other roommates, to each other's personal spaces, they could be held accountable if one roommate were accused of a crime, for example.

[00:22:56] Speaker 01:
Here, with the spas, the relationships between and among the spa's customers,

[00:23:04] Speaker 01:
are nothing like that.

[00:23:06] Speaker 01:
Most of them are strangers that come to the spa.

[00:23:09] Speaker 01:
Even if they had repeat customers, Your Honor, there's no obligation that there's a continuing relationship.

[00:23:16] Speaker 01:
Unlike with roommates, there's a continuing relationship there.

[00:23:20] Speaker 01:
So this case is, the spa is nothing like roommates.com.

[00:23:23] Speaker 00:
I want to come back to speech, but before we do that, since we're on association, I have a question for you with respect to any comparison between the Boy Scout case, Dale, and the SPA.

[00:23:36] Speaker 00:
Because the Boy Scouts had a mission statement that the Supreme Court thought was evidence of expressive association, and the SPA has a mission statement

[00:23:48] Speaker 00:
I quote, to restore and rejuvenate women's physical health as well as spiritual health.

[00:23:56] Speaker 00:
What role does that play in the free association analysis?

[00:24:02] Speaker 01:
Your honor is asking now about expressive association, I believe.

[00:24:04] Speaker 00:
Yes.

[00:24:05] Speaker 01:
Thank you.

[00:24:06] Speaker 00:
We're kind of in the same ballpark, but more specific.

[00:24:10] Speaker 00:
Yes, your honor.

[00:24:10] Speaker 00:
Expressive association.

[00:24:13] Speaker 01:
So the spa is nothing like the Boy Scouts in Dale either.

[00:24:18] Speaker 01:
The Boy Scouts impart values, and boys come there to learn about those values.

[00:24:24] Speaker 01:
They come week after week.

[00:24:27] Speaker 01:
With the spa, providing the spa services to customers, that is not inherently expressive conduct.

[00:24:43] Speaker 01:
The SPA, when someone, so there's a test for that, Your Honor.

[00:24:51] Speaker 01:
The SPA has to be intending to say something by providing its services, number one.

[00:24:57] Speaker 01:
And what the SPA has said on that point, Your Honor, in the record, I'll point, Your Honor,

[00:25:01] Speaker 01:
opening brief at 40, the spa's services are not pure speech, and then at 3ER435, as you noted, the spa's purpose in providing its services are to restore and rejuvenate women's health, not to communicate anything, unlike the Boy Scouts.

[00:25:21] Speaker 03:
It seems like the spa is in somewhat of a gray area in the associational realm.

[00:25:26] Speaker 03:
Maybe it's not as far as Boy Scouts, but there's some cultural value to it.

[00:25:31] Speaker 03:
And, you know, in terms of intimate association also, maybe it's not like a private club.

[00:25:38] Speaker 03:
But on the other hand, it's not a commercial transaction.

[00:25:40] Speaker 03:
It's not like going to Starbucks or Best Buy and just buying something.

[00:25:44] Speaker 03:
I mean, there's something very intimate about the experience.

[00:25:48] Speaker 03:
It's not your normal, again, going to a store or anything of that sort.

[00:25:54] Speaker 03:
I mean, it is the nature of the whole experience.

[00:25:58] Speaker 03:
kid in Korea, I went to a men's only gym job on and you are naked.

[00:26:02] Speaker 03:
People are right next to you for hours on end.

[00:26:05] Speaker 03:
It's not even a unisex bathroom or locker room situation.

[00:26:07] Speaker 03:
The whole experience is being in a very intimate nature.

[00:26:13] Speaker 03:
So it seems like it's in a somewhat of a gray area here.

[00:26:15] Speaker 03:
I understand your point differentiating the case.

[00:26:17] Speaker 03:
I agree with you on that, but it's a little bit murky.

[00:26:21] Speaker 01:
respectfully your honor i don't think it's murky under the intimate association test articulated by the uh... by the supreme court i will say that even the in what this court has said is that in spaces where nudity is permitted or required there is no constitutional right to be free from seeing people of the opposite sex in the nude or vice versa and that's the parents for privacy case can you just one other question here is the hrc said

[00:26:51] Speaker 03:
Olympus Spa had discriminated on the basis of sexual orientation.

[00:26:56] Speaker 03:
I mean, is this really a case about discrimination on sexual orientation?

[00:27:01] Speaker 03:
It doesn't look like spa, I think, welcomes gays, lesbians.

[00:27:05] Speaker 03:
It doesn't matter.

[00:27:06] Speaker 03:
It seems like it's more basis of sex, not sexual orientation.

[00:27:11] Speaker 01:
Yes, so under the WALAD, Your Honor, 4960-04029, it defines sexual orientation, which includes gender identity discrimination.

[00:27:22] Speaker 01:
And then under 4960-04028, sex equals gender.

[00:27:28] Speaker 03:
I guess here is, when you look, the gender identity comes under the definition of sexual orientation, not sex.

[00:27:37] Speaker 03:
And when we read a statute, we read it within its context and the words they use.

[00:27:41] Speaker 03:
So sexual orientation here is defined as heterosexuality, homosexuality, bisexuality, and gender identity.

[00:27:47] Speaker 03:
So it seems like we have to read gender identity in context with that definition.

[00:27:51] Speaker 03:
So to me, what

[00:27:53] Speaker 03:
the statute was trying to capture was, so for example, if you had a transgendered woman, a born biological male, transgendered woman, has a relationship with a biological male, an employer fires this transgendered female, clearly on the basis of sexual orientation.

[00:28:11] Speaker 03:
They didn't want the employer to be very cute and say, no, no, we didn't discriminate on the basis of sexual orientation because here's a transgendered female in a relationship with a biological male, that's heterosexual.

[00:28:21] Speaker 03:
It seems like that's what the statute was intended to capture.

[00:28:24] Speaker 03:
The gender identity is not defined within sex.

[00:28:30] Speaker 03:
It's defined within sexual orientation, if that makes sense.

[00:28:34] Speaker 01:
Your honor, gender identity discrimination is sex discrimination under Bostock.

[00:28:40] Speaker 03:
Well, Bostock's different because Bostock was Title VII and had the word sex.

[00:28:43] Speaker 03:
Didn't define the word sex.

[00:28:44] Speaker 03:
There was no definition of sexual orientation.

[00:28:48] Speaker 03:
There was no reference to gender identity.

[00:28:50] Speaker 03:
Here you have the definition of sex as gender.

[00:28:52] Speaker 03:
Then you have a definition of sexual orientation, and that's where gender identity comes.

[00:28:57] Speaker 03:
And here it just doesn't seem like the discrimination is based on the base of sexual orientation.

[00:29:01] Speaker 03:
There can be cases like that, I think, the example I gave you.

[00:29:04] Speaker 03:
But here it seems it's more about sex, and sex is not defined to include gender orientation.

[00:29:09] Speaker 01:
Well, whether it's in Title VII or here, Your Honor, what the SPA is trying to do in excluding transgender women is to differentiate between

[00:29:28] Speaker 01:
between the stereotypical characteristics of a woman and the characteristics of a transgender woman that may not match up.

[00:29:37] Speaker 01:
But as Bostock said, you can't do that.

[00:29:42] Speaker 01:
That's sexual discrimination because in order to discriminate you're referring to

[00:29:46] Speaker 01:
You have to refer to someone's sex.

[00:29:47] Speaker 03:
But BOSLAG was a statutory construction.

[00:29:49] Speaker 03:
It was about Title VII and the word sex, which was not defined.

[00:29:53] Speaker 03:
And Title VII doesn't reference sexual orientation or gender identity.

[00:29:57] Speaker 03:
This statute does.

[00:29:58] Speaker 03:
It defines sexual orientation to include gender identity.

[00:30:01] Speaker 03:
It defines sex and doesn't include gender identity.

[00:30:06] Speaker 03:
So it seems like there's a difference between sex and sexual orientation under this statute.

[00:30:10] Speaker 03:
And gender identity comes under sexual orientation.

[00:30:12] Speaker 03:
Here, it doesn't seem like it's discrimination on the basis of sexual orientation.

[00:30:19] Speaker 03:
I mean, there can be cases where it is, where gender identity is being used as a cloak for discrimination on the basis of sexual orientation.

[00:30:26] Speaker 03:
That's the example I gave you.

[00:30:27] Speaker 03:
I think that's what is intended to protect against.

[00:30:31] Speaker 01:
So, if I'm understanding your question, Your Honor, gender identity is defined as part of the definition of sexual orientation.

[00:30:40] Speaker 01:
Yeah, that is under the statute.

[00:30:42] Speaker 01:
Right.

[00:30:42] Speaker 01:
And I think that's why HRC was saying or found that this is discrimination based on sexual orientation.

[00:30:51] Speaker 00:
We've gone round and round in the courts on these definitions, right?

[00:30:55] Speaker 00:
And we have Hecox versus Little and it sets out what is gender discrimination.

[00:30:59] Speaker 00:
We have what Judge Lee

[00:31:02] Speaker 00:
references, which is Title VII.

[00:31:05] Speaker 00:
But is there anything in the Washington statute that would suggest that simply because you put gender identity under sexual orientation, that you're stuck with the traditional notion in people's head of what is sexual orientation?

[00:31:23] Speaker 01:
No, Your Honor, there's nothing in the WAL-ADD or anywhere else that would say that.

[00:31:29] Speaker 01:
I think that's just the way the legislature decided to, where the legislature decided to put the definition of gender identity discrimination, or gender identity.

[00:31:37] Speaker 00:
And as I understand it, the charge here is take a look at WAL-ADD, take a look at its definitions, and gender identity is part of that.

[00:31:49] Speaker 00:
In other words, you can't discriminate based on gender identity.

[00:31:52] Speaker 01:
That's correct, Your Honor.

[00:31:54] Speaker 00:
And you can call it what you want, sexual orientation, gender identity, sex equals gender, but it comes down to Washington's view, as I understand it, is that you cannot discriminate in public accommodations based on gender identity.

[00:32:14] Speaker 00:
Is that a fair statement?

[00:32:16] Speaker 00:
That's a fair statement, Your Honor.

[00:32:20] Speaker 00:
arrives at that view based on the statute under WAL-Ed?

[00:32:24] Speaker 01:
Yes, Your Honor.

[00:32:26] Speaker 00:
Do you have any other cases that have been brought on gender identity under the WAL-Ed?

[00:32:35] Speaker 01:
Well, yes, Your Honor.

[00:32:38] Speaker 01:
So I believe in this court in the Tingley case.

[00:32:51] Speaker 01:
with it with this that case was about a psychologist that wanted to engage in gender I guess conversion therapy and This court said that that's that that that wasn't allowed under under the wall ad There's there's also this there's also sorry your honor go ahead

[00:33:17] Speaker 00:
Oh no, I want you to finish because then I kind of want to slightly shift the question.

[00:33:21] Speaker 01:
Yes, there's also been bathroom cases, Your Honor, in the Ninth Circuit, as well as transgender access to sports.

[00:33:30] Speaker 00:
And they go back to the statute then, and gender identity being part of the WAL-AD statute?

[00:33:37] Speaker 01:
Yes, Your Honor.

[00:33:39] Speaker 00:
So I just wanted to ask you about Green versus Miss America, which was brought up.

[00:33:46] Speaker 00:
And if we take the premise that gender identity is covered under the statute, my understanding is you're arguing for a rational basis.

[00:33:59] Speaker 00:
But Green would suggest that you would have to go to intermediate basis of review.

[00:34:07] Speaker 00:
What's the state's position?

[00:34:10] Speaker 01:
Is Your Honor speaking strictly about the exclusionary policy, entry policy, or is Your Honor speaking about the nature of a pageant, a beauty pageant, as being inherently expressive conduct?

[00:34:26] Speaker 00:
I'm speaking more about the speech and the, I guess, the statement, I'll call it.

[00:34:32] Speaker 01:
the biological women are welcome statement.

[00:34:34] Speaker 01:
Yes.

[00:34:35] Speaker 01:
Thank you, your honor.

[00:34:36] Speaker 01:
So the biological women are welcome statement as the spa itself explains is an entry policy and I'll point the court to the record 3ER449 and 450.

[00:34:47] Speaker 01:
So on page 450, the spa provides its webpage and it says Olympus Spa Entry Policy.

[00:34:55] Speaker 01:
And underneath it, it says, biological women are welcome.

[00:34:58] Speaker 01:
And I know that the spa has argued that it's our welcome, so it's inclusionary.

[00:35:04] Speaker 01:
But what the spa's president has explained on page 449 is that our assertion is that there are historical, cultural, practical, and legal reasons to allow Olympus Spa to continue to offer our services in a biological female-only environment.

[00:35:20] Speaker 01:
It's an exclusionary policy, and it's an entry policy.

[00:35:25] Speaker 01:
The SPA is not putting this, I know the SPA wants to create a distinction between its virtual space and its actual space, its physical space.

[00:35:34] Speaker 01:
But this is, that entry policy initiates and carries out the discrimination.

[00:35:39] Speaker 01:
And under the Rock Against Racism case, just because discrimination flows from words doesn't mean that the state can't regulate it.

[00:35:47] Speaker 01:
It is the discrimination.

[00:35:49] Speaker 01:
It's not a placard that the SPA is

[00:35:52] Speaker 01:
is marching in a protest sign.

[00:35:57] Speaker 01:
This is the spa's entry policy, and it discriminates based on gender identity.

[00:36:02] Speaker 00:
Would you also address what Mr. Schneider raised with respect to free exercise?

[00:36:08] Speaker 00:
And it's not the situation that they had in Fulton where there was discretionary, but there's the club exception.

[00:36:19] Speaker 00:
And in his view,

[00:36:21] Speaker 00:
This is tantamount to the same activities that the club gets to do and impose discriminatory policies.

[00:36:29] Speaker 01:
Yes, Your Honor.

[00:36:30] Speaker 01:
So the wallets private club exemption does not pose a tandem problem because private clubs and places of public accommodation are not comparable and comparability for this purpose is judged against the state's interest that justifies the regulation at issue and for private clubs that the state's interest there is balancing free association rights.

[00:36:52] Speaker 01:
for places of public accommodation, the state's interest is in ensuring that everyone has equal and non-discriminatory access to publicly available goods and services.

[00:37:02] Speaker 01:
Those are two very different interests, and so we're not comparing apples to apples there.

[00:37:07] Speaker 00:
Furthermore... You would if you decided that they are basically the same thing.

[00:37:12] Speaker 00:
I think that's what he's saying is, well, it's like when they were trying to remove

[00:37:18] Speaker 00:
Nonprofit exemptions from various organizations that really ran a public health club.

[00:37:23] Speaker 00:
So they really became a public accommodation.

[00:37:26] Speaker 00:
So he's saying, well, if a private club can offer you a spa and massage and spiritual renewal, why isn't it the same?

[00:37:37] Speaker 00:
Because now you can exclude them, but you can't exclude the Olympus Spa.

[00:37:45] Speaker 01:
Yes, Your Honor.

[00:37:47] Speaker 01:
private clubs, everyone knows that they're private.

[00:37:50] Speaker 01:
They are exclusive and only for members.

[00:37:53] Speaker 01:
So when they are turned away from a private club, they're not surprised.

[00:37:56] Speaker 01:
But for places of public accommodation where everyone can go, there's an expectation that they be able to allow to go there.

[00:38:04] Speaker 01:
And so when, for example, a transgender woman is not allowed to use a space that's designated for women,

[00:38:11] Speaker 01:
because of the fact that they're saying she is not a real woman.

[00:38:15] Speaker 01:
What the history of public accommodations law instructs us and shows is that there is a humiliation harm, there is a loss of dignity harm that the state has an important interest in protecting.

[00:38:32] Speaker 00:
What if the SPA changed its policy and said, we are now a membership

[00:38:41] Speaker 00:
organization, you have to pay $15 to be a member.

[00:38:46] Speaker 00:
And when you become a member, it says, and I embrace the health and spiritual nature of the spa signed.

[00:38:56] Speaker 00:
Here's my 15 bucks.

[00:38:58] Speaker 00:
Would they be a private club then?

[00:39:00] Speaker 01:
They would not, Your Honor, under the test that the Washington State Supreme Court has articulated in Fraternal Order of the Eagles.

[00:39:08] Speaker 01:
That that test mirrors the test that the Supreme Court laid out for intimate associations.

[00:39:14] Speaker 01:
And it, again, looks at the smallness, it looks at selectivity, it looks at the exclusivity.

[00:39:20] Speaker 01:
And so when the Supreme Court looked at Fraternal Order of the Eagles, they had this long list of criteria to be a member.

[00:39:26] Speaker 01:
But the reason why they weren't a private club was because they were not exclusive enough.

[00:39:30] Speaker 01:
In other words, they didn't restrict their membership.

[00:39:33] Speaker 01:
And so Costco wouldn't be a private club.

[00:39:36] Speaker 00:
Even though it's a membership club?

[00:39:38] Speaker 00:
Correct.

[00:39:39] Speaker 01:
Correct, Your Honor.

[00:39:40] Speaker 01:
I see that I am out of time.

[00:39:44] Speaker 01:
This court should affirm.

[00:39:47] Speaker 01:
Thank you, counsel.

[00:39:55] Speaker 04:
I'd like to begin with the issue of nudity.

[00:39:59] Speaker 04:
And it was suggested that nudity is only part of the Korean culture.

[00:40:06] Speaker 04:
The amended complaint states otherwise, as does the declaration, which was part of the exhibit.

[00:40:15] Speaker 04:
And the nudity is, the views on nudity are coextensive with the Korean and Christianity.

[00:40:24] Speaker 04:
Korean culture and Christianity.

[00:40:28] Speaker 04:
expressive association that it was mentioned this is sort of a gray area.

[00:40:35] Speaker 04:
I'd like to point the court's attention to language in Roberts versus J.C.'

[00:40:41] Speaker 04:
's, where it says that the First Amendment renders protection to the collective preservation of shared goals and cultural diversity.

[00:40:51] Speaker 04:
The same, the issue of the cultural experiences

[00:40:57] Speaker 04:
are associational interests under expressive association, as also found in the Rotary case.

[00:41:05] Speaker 04:
As to intimate association, there are several factors.

[00:41:13] Speaker 04:
And of course, the size, duration, and the district court committed, I believe, reversible error by projecting

[00:41:23] Speaker 04:
onto the spa facts that were not in the amended complaint.

[00:41:29] Speaker 04:
They said that these folks are strangers to one another.

[00:41:32] Speaker 04:
In fact, the amended complaint says that 75% of customers are returned due to the highly personal, professional, and intimate association the spa has cultivated.

[00:41:48] Speaker 00:
Then on issues... But when was that added to the website?

[00:41:52] Speaker 04:
It's not in the website.

[00:41:53] Speaker 04:
I'm sorry.

[00:41:54] Speaker 04:
It's in the amended complaint.

[00:41:56] Speaker 04:
And that's at 141 of the record, paragraph 70.

[00:42:03] Speaker 00:
Thank you.

[00:42:03] Speaker 00:
But it doesn't say when the so-called intimate association was added to their principles.

[00:42:14] Speaker 04:
I'm sorry, I think our position is that this has always been, the allegations in paragraph 70 have always been a part of the facts underlying the case.

[00:42:28] Speaker 04:
And then under parents for privacy versus bar, we don't believe that that is on point.

[00:42:36] Speaker 04:
The reason is there were causes of action, two under the 14th Amendment, one for privacy,

[00:42:42] Speaker 04:
The other for parental rights, neither of which are present here.

[00:42:45] Speaker 04:
The other one was Title IX, and that's not present here as well.

[00:42:52] Speaker 04:
And so with that, my time is expired.

[00:42:53] Speaker 04:
Thank you for your deliberation on this matter.

[00:42:55] Speaker 02:
Thank you, counsel.

[00:42:58] Speaker 02:
May we thank counsel on both sides for their excellent arguments, which are appreciated.

[00:43:06] Speaker 02:
This case is now submitted.

[00:43:13] Speaker 02:
Parties will hear from us in due course.