The federal judge who refused to define the word “woman” in court was wrong, six women claim in their lawsuit appeal against the sorority that inducted a transgender member at its University of Wyoming chapter.
Kappa Kappa Gamma’s UW chapter inducted its first transgender member, Artemis Langford, in 2022. The following March, seven sorority sisters (that number is down to six in current litigation) sued the sorority, saying it breached its own governing rules by departing from the true definition of “woman.”
U.S. District Court Judge Alan B. Johnson dismissed their lawsuit in August, saying it’s the policy of Ohio courts, where Kappa is incorporated, not to interfere with private organizations and that Kappa has a First Amendment right to interpret its governing documents however it wishes.
The women are challenging Johnson’s dismissal in the 10th Circuit Court of Appeals.
They argue that Johnson got it wrong: that courts will interfere with Ohio organizations if the organizations betray their own contracts; and that Kappa only has a First Amendment right to be free from state interference with its known purpose – not from its own betrayal of that purpose.
“The question at the heart of this case is the definition of ‘woman,’ a term that Kappa has used since 1870 to prescribe membership, in Kappa’s governing documents,” reads the appeal argument, filed Monday in the 10th Circuit. “Using any conceivable tool of contractual interpretation, the term refers to biological females. And yet, the district court avoided this inevitable conclusion by applying the wrong law and ignoring the factual assertions in the complaint.”
The argument points to case law directing courts to read language as "plain" and as it would have been interpreted at the time of a contract's composition.
The For-Your-Own-Good Claim
Among his other dismissals in August, Johnson dismissed the women’s derivative claim against the sorority. That’s a civil claim by which members of an organization can sue their own group on allegations that the group is hurting itself. It’s an attempt to save an organization from itself.
The women’s argument points to their original allegations that Kappa leaders broke from normal anonymous-voting practices, excluded some sisters from the vote, and threatened people with the label of “bigot” when it came time to vote on whether to admit Langford.
When the women or their parents objected, Kappa allegedly met their qualms “with hostility and retaliation,” says Monday’s filing.
“Kappa disregarded its bylaws and other governing documents to admit Langford, a biological male, into the sorority,” the argument adds.
But In 2015 …
In prior court filings before Johnson, Kappa argued back that it had a right to interpret its own rules, while the women didn’t have a right to be in a sorority. The sorority also pointed to 2015 and later public statements in which Kappa vowed to start accepting people “who identify as women.”
The suing sisters countered again, saying “off-the-cuff” mission statements don’t alter an organization’s governing documents. They call the governing documents “contracts” between the group and its members.
“Ohio law is clear that organizations that choose to avail themselves of the corporate form must accept the responsibilities that accompany that form, including the duty to abide by the terms of their articles of incorporation, bylaws and other governing documents,” says the women’s appeal argument.
The argument points to cases in which Ohio courts interfered with organizations that broke their own rules.
A Survivor In There
In his August ruling, Johnson also dismissed the women’s direct claims against Kappa, saying that while they were able to show that sorority President Mary Pat Rooney’s actions caused injury in Wyoming, they didn’t allege personal injuries unique to themselves.
Johnson rebuked the women for devoting much of their complaint to Langford’s allegedly unsettling behaviors within the sorority house, rather than listing more direct claims against the sorority.
The judge wrote that any injury from Langford’s admission into the sorority “inured to all KKG members alike, whether in Laramie or beyond.”
The women protest this in their Monday argument, saying their complaint does demonstrate that the sorority’s actions harmed them.
“Plaintiffs allege personal injuries stemming from the strange and sexualized behavior of the biological male – Langford – that Kappa admitted into the sorority house that were different from the injuries to the sorority as a whole,” says the argument. “Specifically, Langford’s unwanted staring, photographing, and videotaping of the Plaintiffs, as well as his asking questions about sex and displaying a visible erection while in the house, invaded Plaintiffs’ privacy and caused emotional distress in a personalized and unique way.”
One of the plaintiffs is a sexual assault survivor, the argument adds.
First Amendment Rights
Johnson had ruled that the landmark case Boy Scouts of America v. Dale was controlling in the Kappa case.
In Boy Scouts, the private organization fought against appointing a gay scoutmaster, despite a New Jersey anti-discrimination law requiring them to.
The U.S. Supreme Court ultimately ruled that the Boy Scouts of America was free of the state law’s requirement, because private organizations have a First Amendment right to dictate the terms of their own membership.
From this and a similar case, Johnson concluded that Kappa can define the word “woman” however it wants to as part of its expressive association right.
The women are claiming Johnson was wrong to apply these two cases to insulate Kappa, since they both used the First Amendment to protect groups from meddlesome state laws, not from their own internal deviations.
“There is no state actor here, and no authority supports the court’s novel conclusion that the First Amendment protects a private organization from a private lawsuit when it contravenes its own voluntarily chosen and private obligations as provided in its corporate bylaws,” reads the argument.
The women say their lawsuit attempts to correct Kappa’s betrayal of its own governing rules, not Kappa’s resistance to any state law that would impose membership requirements.
‘She’ Vs. ‘He’
Like the lawsuit complaint by attorneys Cassie Craven and John Knepper, this appeal argument by Sylvia May Mailman, Gene Schaerr, Craven and Knepper uses the pronoun “he” for Langford.
Johnson had used “she” for Langford in his order dismissing the lawsuit.
The Kappa attorneys and Langford’s attorney called the inductee “she” in legal documents.
Langford’s attorney in a June 21 filing accused the plaintiffs of “fling(ing) dehumanizing mud” at Langford with the male pronouns, and rebuked the plaintiffs’ verbiage as outside courtroom decorum.
Clair McFarland can be reached at clair@cowboystatedaily.com.
