The sorority that six women sued over its Wyoming chapter’s induction of a transgender member is asking an appeals court not to hear the case, claiming the women can’t appeal it.
U.S. District Court Judge Alan B. Johnson on Aug. 25 dismissed the most recent version of six women’s legal complaint, saying it’s beyond the federal court to police a private organization’s interpretation of the word “woman.”
The complaint had accused the Kappa Kappa Gamma sorority of misapplying its own bylaws and altering its processes to get a transgender member into the University of Wyoming chapter of the sorority last autumn.
The women appealed Johnson’s dismissal to the 10th Circuit Court of Appeals last month.
Kappa Kappa Gamma filed a motion to dismiss on Monday, alleging that because Johnson left the women a way to re-file their suit in his court with tighter claims, the women have no grounds to ask the higher court to intervene.
“Under this Court’s precedent, a dismissal without prejudice (meaning, not a final dismissal) that does not dismiss the entire case is not a final appealable order,” Kappa argued in its Monday motion.
In past cases the 10th Circuit Court has asked whether plaintiffs have been effectively excluded from pursuing justice in the lower, District Court level, before taking on appeals, Kappa’s motion says.
Johnson didn’t exclude the women from re-filing. He told them they could amend their complaint to focus more on the sorority, and less on the effects of the transgender member’s presence upon them and the sorority.
The Tenth Circuit has not yet responded to Kappa’s motion to dismiss.
The Bomb Squad
The women have hired highly-accomplished appeals attorneys Gene C. Schaerr and Sylvia May Mailman.
A Yale Law School alumnus, Schaerr clerked for U.S. Supreme Court Justices Warren Burger and Antonin Scalia and in the D.C. Appellate Circuit for then-Judge Kenneth Starr.
Mailman, whose law degree is from Harvard, was a former legal advisor to President Donald Trump and now specializes in women’s rights as a Senior Fellow at Independent Women’s Law Center.
Clair McFarland can be reached at clair@cowboystatedaily.com.
