Judge comes out swinging on whether trans patrons must be admitted to a female-only spa

Context is important.

For instance, before we dive into today's topic, I would ask you to consider the respectable business establishment, Dick's Sporting Goods, which I patronize and recommend for its wide selection and affordable prices.

Now, imagine a roomful of detectives, hunting for clues. We could refer to them colloquially as "dicks."

Have I softened you up for the opening line of 9th U.S. Circuit Court of Appeals Judge Lawrence VanDyke's dissent in “Olympus Spa v. Andretti,” which dropped last week, setting the legal world abuzz? Let's see.

"This is a case about swinging dicks," VanDyke began. "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 9th Circuit."

The case is relevant in our world where a basic fact of nature — some people born male want to live as women, and vice versa — has become a political hobbyhorse that will only see more use as the mid-term elections approach and the Republicans seek to light a fire under their base, chilled by the skein of jaw-dropping disasters their policies have wrought.

Back to VanDyke, who recognizes the shock value of his language. He continues:

"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."

Shock is a funny thing. While it seems natural, to those shocked, it also is very specific to certain times and places. White Southerners in the 1950s were shocked at the thought of Black people sharing their swimming pools. Meanwhile, in Japan, men and women bath naked together in public baths without batting an eye. It's cultural, not natural.

Conservatives, remember, are capable of amazing feats of imagination, when the spirit moves. They have no trouble confabulating a fetus the size of a grain of rice into a full grown "baby," nor any hesitation dictating the most intimate decisions of biological women based on that feat of fantasy. Considering trans women as women should be a piece of cake.

Instead, we have VanDyke deploying words like "woke" and "man" with barely concealed contempt — to me, that is the shocking part. There is no question there are slivers of life where the existence of trans people pose challenges to be sorted out. Girls high school athletics come to mind. It's that sense of angry grievance that is sad and puzzling. Why must MAGA always be the victims?

The ruling is over 100 pages long, and, not being a lawyer — though surrounded by them, I nearly am, by osmosis — I summarize it reluctantly.

But the 9th circuit seems to have ruled that Olympus Spa erred by challenging a state law not on its own merits but on federal First Amendment grounds. That its right of free speech was trodden upon by forcing them to rewrite their admission rules and its freedom of religion by violating their sense of Christian modesty (the modesty argument doesn't work as well for Muslim girls who want to wear a hijab to school. Why is that?

If VanDyke's word choice at the start of this column bugs you, you are not alone. The other judges of the 9th circuit — 27 of them — added an en banc response to VanDyke's dissent. It begins:

"The American legal system has long been regarded as a place to resolve disputes in a dignified and civil manner or, as Justice [Sandra Day] O’Connor put it, to 'disagree without being disagreeable.' 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."

We certainly live in coarse times. I would suggest coarse language is the least of our concerns. It is the crudeness and vulgarity within people's hearts that is the true offense.