A federal judge on Friday dismissed a group of sorority members’ lawsuit, which they waged against Kappa Kappa Gamma for admitting a transgender member into its Wyoming chapter - again.
U.S. District Court Judge Alan B. Johnson maintained the same stance he had the first time he dismissed this case in August 2023 - that case law prevents courts and governments generally from interfering in the inner associations of a private group like a sorority.
A group of seven (later six) women filed suit against Kappa Kappa Gamma in the spring of 2023, saying sorority leadership violated the group’s own bylaws to induct a transgender member in fall 2022 at its Wyoming-based chapter.
Johnson dismissed their case that August, citing case law giving private organizations the right to dictate the terms of their own membership.
“We dismissed that complaint without prejudice on the grounds that the sorority was free, as a private organization, to define the word ‘woman’ in its bylaws however it wanted,” wrote Johnson in a Friday order, “and therefore the sorority was not contractually obligated to reject transwomen members.”
The plaintiffs appealed at the time, but the 10th Circuit Court of Appeals said there was a chance Johnson’s order wasn’t final and therefore couldn’t be heard on appeal, yet.
Two of the original plaintiffs (and one new plaintiff) re-filed the complaint in June.
Most of the claims were similar, but the women brought “four slightly different claims,” wrote Johnson.
They brought a set of derivative claims against Kappa’s Fraternity Council – essentially claims that the council breached their duties to harm the organization itself. They also alleged that Kappa breached its contract with the women, and that the Fraternity Council induced members to join the organization on false claims that it was a group for women.
“Having considered the issues presented – again – we find that the majority of the claims must be dismissed on the grounds that this Court still may not interfere with Kappa’s contractually valid interpretation of its own Bylaws,” wrote Johnson.
Not A Biologist
The women failed to show how inducting a transgender member broke the organization’s bylaws, Johnson wrote. He added that though the group’s early and founding documents reference women, nothing in the bylaws requires Kappa to define the word women as including “only those individuals born with a certain set of reproductive organs.”
The women cited President Donald Trump’s executive order issued this year, saying adult human females are people “belonging, at conception, to the sex that produces the large reproductive cell.”
Johnson voiced confusion at this.
“We are not entirely sure what this definition means, not having a degree in biology,” wrote the judge.
Even so, that’s just the executive branch’s interpretation of the law – “not relevant in the world of private contracts, which is where we currently find ourselves.”
And when adopting the plaintiffs’ newer framing of the case and applying Ohio contract law, Johnson reached the same conclusion as he did two years ago: Kappa doesn’t have to exclude transgender members to keep faith with other members.
At the time the women joined the sorority, Kappa had already pronounced a “well-publicized intent … to include transgender women,” wrote Johnson.
Kappa issued a document to members called “bylaws and standing rules revision 2022” three years ago, which is not officially a bylaw, and which announced that the National Panhellenic Conference would define “woman” as a person who lives and self-identifies as a woman.
While that document is not a bylaw, Kappa’s bylaws don’t reference a ‘single-sex’ requirement. The sorority is under powerful private-group autonomy laws that include interpreting its own bylaw language, so “we have no authority to review the dispute.”
Courts do grant exceptions to that protection, in the case of fraud and overshooting corporate powers, for example.
Johnson found the women’s allegations that Kappa falls under those exceptions “conclusory and contradicted by their own evidence,” he wrote.
The sorority leaders didn’t commit fraud or exceed their powers as alleged, he added. Johnson also denied the plaintiffs’ claims that sorority leaders didn’t act in good faith, since they weren’t under a known duty “to publicly clarify every term in every policy before a new member joins.”
Other allegations such as breach of contract, undue influence, false representation, and retaliation also fail, Johnson wrote.
The retaliation claim invoked the Ohio Constitution, which only protects from retaliation victims of state actors, he noted.
Any attempt for the women to amend their claims in Johnson’s court would be “futile,” the judge concluded, dismissing the case. The judge dismissed it “with prejudice,” meaning they can’t re-file it in his court.
But doing so gives the women a clear basis for appealing the case to the 10th Circuit Court of Appeals. They did so after their initial 2023 court loss, but the 10th Circuit decline to hear the case, over doubt’s that Johnson’s 2023 dismissal was final.
June Complaint
The June complaint had alleged that the transgender inductee Artemis Langford was not inducted into Kappa during the 2022 inductee-vetting “rush week,” but that chapter leaders, with the approval of headquarters, later conducted an ill-noticed and spontaneous vote about whether to induct Langford.
Though sorority rules call for the use of a voting application that uses secret ballots, this election required the women to post their email addresses with their votes, says the amended complaint.
Leaders at the chapter based on the University of Wyoming campus also urged women against voting down Langford’s membership, telling them they’d be considered bigots and they could face expulsion or suspension from the sorority if they didn’t have a “personality” focused reason for not voting Langford into the sorority, the complaint says.
When two of the women asked about the student’s application, the membership chair “downplayed any possibility that the student would become a Kappa member, claiming there was a ‘99.9% chance’ that he would not be offered membership,” says the complaint.
The lawsuit complaint calls the inductee “he” while Johnson, in his various orders, has called the inductee “she,” as have sorority leaders in their filings.
The complaint says the membership chair of that era “intentionally provided limited notice of the only opportunity to meet the student as part of a plan hatched by national (sorority) representatives to ensure that Wyoming chapter members would not have a basis to vote against the student’s membership.”
Two of the women weren’t allowed to vote because they weren’t present at the Sept. 19, 2022, chapter meeting where the vote was held, though their complaint says they should have been allowed to vote anyway, under the sorority’s rules.
There were two votes. Some women who felt pressured changed their votes to yes on the second vote, the complaint alleges. When enough votes were secured for “the student’s membership,” the voting stops, it adds.
The student was admitted by a narrow margin, the complaint says.
“Nothing about this voting process on Sept. 20, 2022, was normal,” says the complaint. “This irregular process violated Kappa’s Standing Rules and Policies in multiple ways.”
The women allege that Kappa stands in violation of its own bylaws and founding documents, which refer to expectations and induction procedures for Kappa “women” and “ladies.”
Kappas’ first, 1871 bylaws said “any lady may become a candidate for membership” if she has good moral character and above-average talent, and who goes to a college or seminary.
The group’s articles of incorporation say the sorority’s purpose is “to unite women,” the complaint adds.
The Guidance
The organization in 2022 dispatched a frequently-asked question guidance document saying the sorority under National Panhellenic Conference rules could define “woman” for purposes of recruitment as someone who lives and self-identifies as a woman, and that Kappa was “comprised of women and individuals who identify as women.”
The guidance was provided to Kappa leaders less than 60 days before the sorority’s convention and didn’t alter the bylaws, the complaint alleges, adding that the document was never voted on.
Clair McFarland can be reached at clair@cowboystatedaily.com.
