The application of anti-discrimination statutes was “only incidentally burdened” by the spa’s religious expression, according to Judge Margaret McKeown, who was nominated by President Bill Clinton.
McKeown added, “We are mindful of the issues and opinions brought up by the spa.”
The spa may be able to contest the enforcement action in various ways. However, the First Amendment cannot provide such remedy, regardless of its other options.
Judge McKeown also made analogies between the spa’s policy and civil rights-era racial discrimination.
“It’s not really ‘biological women are welcome,'” she said. It implies that women who are not biological are not welcome.
Judge Kenneth Lee, who was selected by President Donald Trump, delivered a scathing criticism in a dissenting decision.
