JESSE FRANKLIN-MURDOCK: Can Anything Be Just For Women Anymore?

Jesse D. Franklin-Murdock on June 22, 2023

Many of the social ills that American civil rights laws were enacted to combat have largely vanished. Schools are not segregated; businesses do not bar customers based on race; and professions do not exclude women. Yet court dockets are crowded with discrimination cases, and civil rights laws have been expanded to cover ever-growing lists of characteristics. Like almost any other regulatory regime, anti-discrimination laws have created winners and losers. In certain instances, civil rights laws become zero sum, creating dubious rights built upon the trampling of others’ rights.

Enter Olympus Spa, a Seattle business that operates two jjimjilbangs, Korean bathhouses that are traditionally segregated based on sex. As The Daily Caller reported, the Washington State Human Rights Commission, an agency charged with enforcing civil rights laws, ruled that Olympus Spa may not exclude biological males who identify as women from using its communal bathhouse facilities—even biological males with intact genitalia.

WSHRC’s targeting of Olympus Spa can be attacked on many fronts. That Human Rights Commission commissars are busying themselves with ensuring that biological males can enter women spas suggests that agencies like WSHRC have outlived their purpose. The proliferation of overlapping regulatory regimes at the federal, state, and local level have made the operation of small businesses increasingly difficult.

But WSHRC’s actions reflect a particular ugly truth about the state of civil rights laws in the United States. In some instances, such laws ensure that individuals are not denied opportunities based on immutable characteristics and are free to work without experiencing severe and pervasive harassment: both good things. In the case of Olympus Spa, however, agencies like WSHRC create civil rights for individuals like the biological male who wanted to use a female bathhouse at the expense of others’ rights.

Unless Olympus Spa has the resources to fight and win a lengthy legal battle with WSHRC, its options are the following: (1) allow biological men into its spas; or (2) defy WSHRC and face constant legal harassment (much like a certain Christian baker in Colorado). WSHRC’s decision is tantamount to saying that no jjimjilbang can exist at all in Seattle. A jjimjilbang, by its very nature, is separated by sex. This is hardly surprising. Most women would have little interest in seeing male genitalia in a steam room. Allowing the handful of biological males who demand access to Olympus Spa’s bathhouses will likely drive away many women who otherwise would have been their customers. It’s not just jjimjilbangs. Any business that depends on creating a secure, exclusive space for women will face the risk of fines, litigation, and harassment—unless the business chooses to change the fundamental nature of its services in order to comply with the demands of a handful of people backed by the power of the state.

WSHRC’s decision denies women the right to have women-only spaces. It is now illegal in Washington to create a public bathhouse that guarantees that the steam rooms will include only biological women. If women want to experience a jjimjilbang, they must cross state lines or find a business that refuses to comply with the law as construed by WSHRC.

While Diversity, Equity, and Inclusion have practically become the state religion, the case of Olympus Spa shows diversity only goes so far. By forcing a Korean bathhouse to conform to modern, American gender ideology, Washington State is telling the Korean community that their culture is no longer legal, let alone welcome. Any cultural institution based on the separation of sexes will meet a similar outcome.

WSHRC’s treatment of Olympus Spa thus shows how far anti-discrimination laws have been twisted. Laws designed to protect women and ethnic minorities are now used to ban women-only spaces and outlaw benign cultural practices. Legislators should rectify the damage done to Olympus Spa and other such businesses by reining in civil rights laws so that they are a shield against invidious discrimination, not a sword in the culture wars.

Jesse Franklin-Murdock is an associate at the Dhillon Law Group, where his practice includes First Amendment and defamation law, employment law, and political law.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.