“We are not unmindful of the concerns and beliefs raised by the Spa,” wrote Judge M. Margaret McKeown for the 2–1 majority. “Indeed, the Spa may have other avenues to challenge the enforcement action. But whatever recourse it may have, that relief cannot come from the First Amendment.”
I wonder what those avenues might be. This looks like a relatively extreme case, with a nude spa being required to allow a person with a penis into the women’s area, but I still can’t think of how that requirement might be unconstitutional.
Perhaps to make the division specifically on secondary sex characteristics? Like, a “with penis” and “without penis” side?
It says in the article they were fine with people who had had bottom surgery using the women’s side. And I’m not sure if that would run afoul of any anti discrimination laws? Idk, it’s a weird case.
How about a “can’t differentiate between sex and nudity” side and a “just wanna get our sweat on” side?
To be fair, that would require 3 sides, as you need to split the “can’t differentiate between sex and nudity” side by gender still.
