The right to free association in America has been eroding for decades.

It began, as so many bad things do, as a drive to make things better, not worse. The inverse of free association is the right to exclude others, and the problems we have had with that are well understood.

I have always been uncomfortable with anti-discrimination measures that circumvent our constitutional rights to discriminate. Not all discrimination is invidious, and while invidious discrimination itself is ethically and morally wrong, it also is at least to some degree subjective.

And, of course, outlawing people from being jerks is both a fool’s errand and the road to oppression. Forcing people to associate, even when they likely should, is still forcing people.

WASHINGTON: A Korean women's spa has been forced to erase all references to "biological women" from its policies after a trans-identified male filed a human rights complaint against them.

Haven Wilvich claimed the female-only space was discriminatory.https://t.co/yuKLOY01HX

— REDUXX (@ReduxxMag) June 7, 2023

The legal justification for “public accommodation” laws, however, is not uncompelling. Some services such as lodging are harder to access than others. While people who bake cakes are rarely in short supply, hotel rooms in some areas might be. Denying people access to things like accommodations based upon immutable characteristics such as race can cripple the ability of people to just live their lives.

Hence the creation of protected classes, about which we have spoken a lot lately due to measures that are expanding the definition to include a wider and wider range of people. We invented the concept of protected classes for an obvious and good reason: invidious racial discrimination was producing great individual and societal harm, so we banned it.

The deficiencies of the current regime of nondiscrimination law are becoming clear: by forcing “tolerance”/association for whomever the powers that be decides needs protection the meaning of private spaces and freedom of association have become not just blurred, but utterly arbitrary.

Some forms of discrimination simply make sense. The opposite of discriminate is indiscriminate, and indiscriminate is synonymous with having bad judgment. When we invite people to parties, we choose whom we will invite. We are discriminate with whom we choose to associate and should be. Practically speaking Americans decided to suppress racial discrimination; and practically speaking we are creating a regime where we require people to be indiscriminate.

The story that kicked off my ruminations on this matter is a great example of the problem because the case seems so clear-cut to me. On its face, the matter at issue demonstrates the problem we face with all assertions of protected class status.

A Seattle court has ruled that a female-only nude spa lacks the “constitutional right” to bar males from their facilities. The decision comes after the spa sued the Washington State Human Rights Commission (WSHRC), which had forced them to change their sex-exclusive policy due to the complaint of a transgender patron.

In May of 2020, a trans-identified male submitted a complaint to the WSHRC alleging discrimination on the basis of his gender identity.

Haven Wilvich had sought a membership at the Olympus Spa in January of 2020, but had been denied on the basis that he had not undergone “gender reassignment” surgeries and his penis was fully intact.

In the complaint, Wilvich alleged his application to use the facilities at the spa had been rejected after staff told him that “transgender women without surgery are not welcome because it could make other customers and staff uncomfortable.”

The Olympus Spa, which has locations in Lynnwood and Tacoma, is a Korean-style health and wellness facility. The spa requires nudity in some of the areas, and, as such, has been reserved for female clientele.

The particular transgender person involved is a rather nasty piece of work. He is a misogynist of the first order, believing himself to be a better and more worthy woman than any biological female because he is choosing to do the work, so to speak, rather than simply having been born into the status.

For my purposes, though, he could be the biggest sweetheart in the world, and it wouldn’t matter.

What does matter is that Haven was being discriminated against due to an immutable characteristic–he has a penis–and the law apparently says that this is illegal.

Certain kinds of sex discrimination are not against the law–single-sex spaces are not always illegal–but due to changes in the understanding of sex its definition has changed to “whatever I say I am, I am.”

Given this new definition, Haven is a woman, and this spa is for women. Hence this spa is for Haven. The original discrimination based on sex was legal, but now discriminating based on biology is not.

Men were excluded from the Olympus Spa because women didn’t want to be nude around people with penises (men). But now you can be a woman with a penis, hence excluding penises is illegal.

The ruling makes sense, legally. Which is of course the problem. Once you give up the principle of free association–the ability to discriminate as you choose–then whoever is in power gets to decide who can and cannot be discriminated against. It becomes a tug of war.

Ask Jack Baker, owner of the Masterpiece Cake Shop, who has been suffering harassment forever because he refuses to bake cakes for gay weddings based on his religious beliefs. His life has been upended because others want to force him to do something he refuses to do. It is all about power. Millions of dollars are spent to fight this seemingly ridiculous and unnecessary battle.

The foundation upon which the protected class legislation is built is fundamentally flawed because it turns the concept of rights into an assignment of privileges. The state gets to decide with whom you associate and with whom you can choose not to.

The judgments the state makes may be better or worse than your own–discrimination based solely upon race seems ridiculous to me, although as a practical matter, it is common and done by people of all races all the time whether legal or not–but the move to outlaw it has opened a huge can of worms.

Undoubtedly we can argue about whether transgender people should be included under the protected class laws in these cases, and it will vary by state or locality in the long run until the Supreme Court makes a definitive determination, but the only reason this is an issue at all is that we went down this path of eliminating the concept of rights.

Rights in modern America are actually treated as privileges granted by the state. This is the idea that underlies “disinformation” censorship and “hate speech” legislation. We actually have no rights anymore–we have grants of privilege from the state. Rights are inviolable, privileges are negotiated.

Eliminating state-based segregation as a matter of constitutional law should have been easy: it was the denial of basic rights to American citizens. Eliminating private discrimination should have been a matter of persuasion and social pressure, not law.

Yet here we are, fighting over penises in women’s spas. When everything is a clash of sheer power, expect the Leftist penis to win.