DENVER (CN) — Six Wyoming sorority sisters looked to a 10th Circuit panel on Tuesday to reopen their lawsuit against Kappa Kappa Gamma, which they say wrongfully interpreted the sorority's definition of “woman” to allow in the organization’s first transgender member.
"The sorority avoided an honest conversation," said attorney May Mailman on Tuesday, on behalf of the sisters.
Kappa Kappa Gamma was founded in 1870 as a women-only fraternity, which survives today as, what the sisters describe as a "single-sex haven" across the nation's co-ed campuses.
In 2015, the Kappa Fraternity Council issued a position statement expanding membership to include “women and individuals who identify as women." In the fall of 2022, this allowed the organization to admit its first transgender sorority sister, University of Wyoming student Artemis Langford.
Jaylyn Westenbroek and five others sued Kappa Kappa Gamma and its president, claiming the leaders fixed the induction process to force them to accept Langford as a sister, while threatening to kick out anyone who opposed.
Chalking the case up to a dispute of rules best handled internally, U.S. District Judge Alan Johnson, a Ronald Reagan appointee, dismissed the case without prejudice on Aug. 25, 2023.
“Unadorned this case condenses to this: who decides whether Langford is a Kappa Kappa Gamma sister?” Johnson wrote, declining to answer both this and the larger question of how to define a “woman.”
The sorority sisters appealed.
U.S. Circuit Judge Carolyn McHugh questioned whether the appellate court had jurisdiction to hear the case since it had been dismissed without prejudice, and with instructions for refiling.
Mailman said Johnson killed the plaintiffs’ merits claims, rendering it impossible to bring a new case.
“We can write it better, prettier, but that doesn’t get us around this problem of the plaintiffs seeing a series of bad faith rule changes to force a desired outcome,” said Mailman, who is a senior fellow at the Independent Women's Law Center and a contributor to the Federalist Society.
Momentarily assuming the 10th Circuit had jurisdiction, McHugh, a Barack Obama appointee, asked Kappa Kappa Gamma attorney Natalie McLaughlin whether the organization did overreach in its interpretation of “woman.”
“The argument is you have the ability to interpret your bylaws, but here the argument is, you have expanded ‘woman’ to include a definition not included at the writing of the bylaws,” McHugh said. “What if the organization adopted an interpretation that included cisgender men?”
U.S. Circuit Judge Richard Federico, a Joe Biden appointee, wondered about the difference between interpreting membership eligibility to require certain GPAs, and interpreting the meaning of a “woman” to fundamentally alter the nature of the organization.
McLaughlin stood by Kappa Kappa Gamma leadership’s ability to interpret the bylaws within reason.
“The right to interpret bylaws is sacred as long as it’s not unreasonable and arbitrary,” said McLaughlin, who practices with Vorys Sater in Columbus, Ohio.
The panel, rounded out by Bill Clinton appointee U.S. Circuit Judge Michael Murphy, did not indicate when or how it would rule.
Dozens of members of the Independent Women’s Forum in flamboyant scarves, black sashes and red buttons packed into the courtroom. After, the women assembled on the steps of the Byron White U.S. Courthouse, waving signs that declared “sororities for women,” and “a Mr. is not a sister,” in support of the suing sorority sisters.
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