Olympus Spa in Washington State has petitioned the US Supreme Court to allow it to exclude pre-operative transgender women from its women-only facilities. The case is framed as being about anatomy and privacy, but what it actually asks the court to decide is whether a trans woman is a woman in law. The answer will matter far beyond one spa.

Where this started

More than six years ago, a transgender woman called Olympus Spa to ask whether she could come in. She was told that transgender women who had not had surgery were not welcome because it might make other customers and staff uncomfortable. She filed a complaint with the Washington Human Rights Commission. The Commission ruled in her favour: a transgender woman cannot be excluded from women's facilities simply because she is pre-operative. The spa appealed. The Ninth Circuit upheld the ruling. So now the spa is going to the Supreme Court.

The woman at the centre of all of this declined to be interviewed. I understand that entirely. Six years of being the test case for whether you are allowed to exist in ordinary spaces takes something from a person. She called to ask about a body scrub. She is still being talked about.

What the case is actually about

The spa's lead attorney, John Bursch of Alliance Defending Freedom, was careful with his language when he described the petition. "We're asking the Supreme Court to review this case," he said, "and to hold that a spa that has an all-nude female clientele does not have to allow a male into its nude sauna area simply because he identifies as a woman." He then added that the spa's policy "is not based on anyone's identity or their gender expression or their feelings. It's based only on anatomy."

That framing is doing a great deal of work. The argument is designed to sound neutral, even clinical. Anatomy. Not identity. Not feelings. Just the body.

But here is the thing. The moment you rule that a trans woman's anatomy places her outside the category of women, you have made a ruling about her identity. You cannot separate the two. Saying "we are not discriminating against who she is, only against what she has" is not a meaningful distinction when what she has is part of who she is, and when the consequence is that she is excluded from women's spaces. The Washington Human Rights Commission saw through that argument. The Ninth Circuit saw through it. The question now is whether the Supreme Court will.

The framing decides the answer

This is why framing matters so much in law. If the court accepts the spa's framing, that this is a question about anatomy and not identity, it becomes much easier to rule in the spa's favour without explicitly saying that trans women are not women. The ruling can hide behind biology while delivering exactly that verdict.

If the court refuses that framing, and asks instead whether a business can exclude a trans woman from women's facilities, it has to answer a harder question: is this woman a woman? The Washington Human Rights Commission said yes. The Ninth Circuit agreed. The spa is betting the Supreme Court will disagree.

Bursch also raised religious freedom and a First Amendment argument about cultural expression, on the basis that a traditional Korean female-only spa conveys a particular cultural message. These arguments are not trivial. But they are also not the heart of the case. The heart of the case is whether a trans woman is legally a woman, and whether the answer to that question can be changed the moment she takes her clothes off.

What the spa's clients said

KOMO News spoke to several clients outside the Lynnwood location. Most had not heard of the case. Liz said she personally would not be bothered by a pre-operative trans woman in the spa, but respected that others might be. Alice said it would depend on the company's policy. Kim Yuska said she would not want to share the space with a trans woman who had not had surgery, though she also said that if a trans woman were post-surgical, she would not pay attention because she goes for herself, not to look at others.

Those responses are not surprising. But I notice what sits underneath them. The discomfort is real for some people, and I do not dismiss it. What I do question is whether personal discomfort, however genuine, is a sufficient legal basis for excluding a class of women from women's spaces. The spa is not arguing that a trans woman has done anything wrong. It is arguing that her body, as it is, disqualifies her. That is a significant thing to ask the Supreme Court to endorse.

What a ruling either way would mean

Bursch said it himself: when the Supreme Court rules, it rules everywhere in the country. A ruling in the spa's favour would not just affect Olympus Spa in Lynnwood and Tacoma. It would give any business in the United States a legal basis to exclude trans women from women's spaces whenever nudity is involved. Gyms. Swimming pools. Changing rooms. Communal showers. Every space where women take their clothes off could, in principle, close its doors to trans women on anatomical grounds.

A ruling against the spa would confirm what the lower courts have found: that excluding a trans woman from women's facilities because she is pre-operative is discrimination. It would not force anyone to look at anyone. It would not remove anyone's right to privacy. It would simply say that the woman who called the spa in January 2020 to ask about a body scrub is a woman, and that she deserved an answer that reflected that.

She wanted what every woman wants occasionally: to be looked after, to be clean, to prepare for something. She is still waiting to find out whether the law agrees she is allowed.

If there is a news story you would like me to cover then just let Sammy know.

Dr Helen Webberley is a Gender Specialist, Medical Educator, and advocate for trans people and their families.