If you follow the courts, you will certainly have come across Olympus Spa v. Armstrong. On March 12, the Court of Appeals for the Ninth Circuit denied rehearing en banc in this case, which began in 2020 when a transgender woman in Washington State alleged that a traditional Korean spa, which requires patrons to be entirely naked, refused her (or is it him?) entry because she (he?) had not yet undergone so-called gender-affirming surgery. Cases about the rights of transgender people are increasingly on courts’ dockets, with tricky legal issues far from sorted out, but what brought Olympus Spa to wide attention is the explosive and deliberately vulgar dissent by Judge Lawrence VanDyke and the formal castigation of the judge by a very large number of his colleagues.
Many experts in the law have weighed in on the controversy, but one thing missing is linguistically informed commentary on the vulgarity. The present piece, which is necessarily – but, I hope, not gratuitously – filled with language not often found in these pages, is an attempt to fill that gap.
Here are the opening two paragraphs of VanDyke’s dissent:
This is a case about swinging dicks. 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 Ninth Circuit.
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.
In response, no fewer than 27 judges issued a statement in which they write, “The American legal system… is not a place for vulgar barroom talk” and use such other phrases as “coarse language and invective,” “crude and vitriolic language” and “ordinary principles of dignity and civility.” A second statement, signed by seven of these same judges begins with the words, “The lead dissent’s crass language.”
VanDyke, however, has dug in his heels. He writes, “My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words” and “The fact that so many on our court want to pretend that this case is about anything other than swinging dicks is the very reason the shocking language is necessary.” Closing by invoking the Book of Matthew, he “coarsely but respectfully dissent[s].”
Unsurprisingly, some pundits have expressed outrage that VanDyke would have said such things while others have praised him for doing so. An especially interesting article, to my mind, comes from the pen of Michael A. Fragoso, who concludes that VanDyke’s “ironical approach” to jurisprudence – not only in Olympus Spa but throughout his career – is “uniquely postmodern.” I also appreciate the words of Josh Blackman:
The problem with speech codes is that they prohibit people from talking about the actual world. Using euphemisms signals that society is unwilling to address problems. And this asymmetry only goes one way. Liberals can speak, conservatives cannot.
Still, it may be that VanDyke’s linguistic experiment goes too far and will cause real harm to the judiciary, even as it highlights the idea, increasingly popular in some circles, that so much of language is dangerous. My intention in what follows is to add modestly to the discussion of linguistic unseemliness by considering which other words and phrases VanDyke or any other judge or public figure might choose instead of “swinging dicks” and what the effect of using any of these might be.
First, however, here is what I will not do. While admitting to deep discomfort that so many Americans appear not to be bothered that biological men are now often permitted in – and are in some cases pushed into – women’s bathrooms, prisons, schools and nude spas, I am not a lawyer and will thus not comment on the legal issues in Olympus Spa, which hinge largely on the applicability of the First Amendment to the case and, perhaps, on whether the phrase “gender expression or identity” in the Revised Code of Washington “serves as a proxy for sexual orientation,” as Judge Kenneth K. Lee claims in his dissent. And aside from saying simply that I, too, feel that VanDyke ought not to have been so harsh about his colleagues, I will also not dilate on the complaint of these colleagues that, besides using vulgar language, he demeans those who disagree with him by writing such sentences as this: “Sometimes, it feels like the supposed adults in the room have collectively lost their minds.”
So, what of the vulgarity? A striking linguistic feature of the opinions is that not a single judge who chides VanDyke uses the collocation “swinging dicks” even as a quotation. They speak of the unseemliness without being willing to spell out what exactly the unseemliness is.
On the assumption – which some may dispute – that the case is in fact in the first place about an anatomical part that some might refer to as a dick, the question arises how a judge who wished to highlight this from the start might have written a seemly opening sentence. Should he or she use a direct word (an obvious candidate is “penis”)? Or are there any euphemisms or examples of slang – see here and here for lists compiled by linguists – that are neither extremely vulgar (e.g., “male member”) nor risible (e.g., “willy” and “pajama python”)?
To be clear: VanDyke could have written something still more unseemly. In a post on his blog “Original Jurisdiction,” David Lat imagines that another conservative judge, not wishing to be outdone, might begin an opinion with “This is a case about huge, throbbing cocks.” I expect we can all agree that this would have caused even more of an uproar: “cock” is generally regarded as a more offensive word than “dick,” and when it comes to spas, I imagine “swinging” to be less threatening than “huge, throbbing.”
But what would have been a less vulgar gambit – or, indeed, one that is not vulgar at all?
Suppose VanDyke had begun with “This is a case about penises.” I don’t suppose that this sentence would have been met with disgust, but it would have provoked a smirk, and for two reasons, one having to do with meaning and the other with form.
Let’s take meaning first: the plural “penises” is vastly less common than the singular (as the Google Books Ngram Viewer confirms) because penis-havers have but one penis, and a plurality of penises thus conjures up images that many of us find surprising. As for form, people get flummoxed when asked to pluralize English nouns that end in “-is”: most can manage “axes,” “bases” and the like, but “poleis” causes problems, “geneses” sounds peculiar, no one really wants to say either “aegises” or “aegides” – and “penises” and “penes” are both ridiculous. The same holds for “phallus” and its plurals, by the way: the singular “phallus” is much more common than “phalluses,” which sounds odd and which is, in turn, much more than common than the pretentious “phalloi.”
So perhaps VanDyke might have written instead, “This is a case about the penis” (with a generalizing definite article) or – arguably even more apt – “This is a case about a penis.” Apt because, to quote Lat, “there’s only one transgender woman whom we know of, Haven Wilvich, who has expressed interest in going to Olympus Spa… So unless Wilvich has some highly unusual anatomy, there’s at most one ‘swinging dick’ here.”
But to return to plurals: how about “This is a case about swinging penises”? The adjective would have been gratuitous since, as Legal Style Blog archly asks (amplified by Lat), “Where in the record did it say that the phalluses in question were sufficiently endowed to be swinging?” Whatever the case may be, this alternative sentence would, I expect, likewise have led to the charge of “vulgar barroom talk” despite the fact that there is nothing inherently vulgar about the adjective. While the phrase “swinging penises” is uncommon – Google Ngram draws a blank – when I type it into a search engine (NSFW), I am taken to gay porn sites.
By contrast, “swinging dicks” is a known phrase, though the usual meaning of “swinging dick” is, to quote the Oxford English Dictionary, “A man; spec. (more fully big swinging dick) a successful, arrogant, ambitious, or aggressively bold man (also occasionally used of a woman).” Popularized by Michael Lewis in his 1989 book about Wall Street, Liar’s Poker, the locution “Big Swinging Dick(s)” (typically capitalized) has been used most famously to describe the top bond traders in the 1980s at what was then Salomon Brothers. In any case, it is common enough that (no doubt to the surprise of some readers) the OED has an entry for the phrase, which is apparently first attested in 1957. I note, however, that as early as 1684, the author of the drama Sodom, often considered to be the Earl of Rochester, spoke of a penis as “a brave Romantick swinging Prick.”
Now, it is striking that nearly no judge who opined in Olympus Spa uses the word “penis,” even as a singular. Only VanDyke does so: along with a quotation from a 2010 opinion that contains the word, he mentions a man who “allegedly expos[ed] his erect penis in the female spa area” of a Korean spa in Los Angeles.
How is it possible that the opinions in a case that may be fundamentally about penises, and at the very least greatly concerns them, barely uses the word “penis” (and avoids “phallus” entirely)?
The answer is simple: the word that judges like to use is “genitalia,” of which there are 30 examples in the 105 pages here, none of them in a quotation (unlike both examples of “genitals”) and the majority preceded by the descriptor “male.” Consider, for example, these sentences from the dissent of Judge Daniel P. Collins (italics in original):
Olympus Spa simply does not care whether a person seeking admittance is transgender; it cares only whether the person has male genitalia. If the person lacks male genitalia, the person will be admitted regardless of whether that person was born without male genitalia or had them removed. A transgender person who was born with female genitalia will be admitted, even though that person identifies as a male, and a transgender person who was born with male genitalia will be admitted if that person has had those genitalia removed. Because the only factor at play is the possession of male genitalia, there is no sense in which a person’s “transgender” status can be said to be a “substantial factor” in Olympus Spa’s admissions policy… For the same reason, Olympus Spa’s exclusively genitalia-based line – which rests on the unique privacy, modesty, and even potentially safety concerns associated with having male genitalia in its all-nude space – cannot be said to be a pretext or proxy for transgender discrimination.
(What about someone born with female genitalia who has undergone phalloplasty? Collins does not say.)
But “genitalia” fudges the issue. On the plus side, the naturally plural word – it comes from the neuter plural of the Latin adjective genitālis, “concerned with procreation or reproduction” – includes scrotums (or, if you prefer, scrota), which often swing, as well as penises. And, unlike a plural like “penises,” the word doesn’t sound funny. But there’s a strong minus, too: the word also encompasses vaginas.
In a context such as Olympus Spa, this is a minus because “genitalia” is aseptic (as is “genitals”). Undoubtedly, the penis and the vagina are alike in being generative organs. But, crucially, most people now and at all times in the historical past have viewed them as different in kind rather than like. To my knowledge, no language has separate words for “male ear” and “female ear” or for “male toe” and “female toe.” But to my knowledge, every language has separate basic words for “male genitalia” and “female genitalia.” The overuse of the word “genitalia,” which so often needs to be characterized as specifically male or specifically female, is an effort, whether conscious or not, to conceal this fundamental truth.
Put simply, the words “penis” and “vagina” carry an important societal weight absent from “genitalia.” It is difficult for most people to speak of a penis and a vagina as pretty much interchangeable. But when speaking of male genitalia and female genitalia, as many of us regularly do, we are using language to blur an essential difference. This blurring downplays the mismatch of having the male variety in an otherwise female context, and vice versa. It is in effect the opposite of what VanDyke does, which is to use language to emphasize the essential difference.
In short, then, I conclude the following. 1) Even without the addition of “swinging,” Judge VanDyke is making a (possibly ill-advised) point with the vulgarity “dicks” that he could not have made with anything like the same force by instead using “penises.” 2) He could, however, have gestured to the point, without quite making it, by using the singular “penis” – as I suggest jurists start to do more often. 3) Be that as it may, his colleagues on the Ninth Circuit are hiding behind language when they avoid even “penis” and use, again and again, the flaccid term “genitalia.” And so, is it any surprise that, as VanDyke suggests in his first footnote, quoting Mencken, his dissent in Olympus Spa gives it to them “good and hard?”
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