Tenth Circuit judges to decide if KKG case is appealable, right to interpret own bylaws

May 14—DENVER — A panel of three judges on the U.S. 10th Circuit Court of Appeals heard oral arguments Tuesday in the ongoing lawsuit against Kappa Kappa Gamma, and will decide whether the national fraternity retains the right to interpret its own bylaws.

The case of six sorority sisters suing their parent organization grabbed national attention last March when the University of Wyoming chapter admitted its first transgender member, Artemis Langford.

U.S. District Judge Alan B. Johnson dismissed the lawsuit in August, ruling that the volunteer organization retained the right to interpret its own bylaws. The lawsuit was dismissed without prejudice, leaving the plaintiffs an option to refile.

However, Johnson advised the plaintiffs in a footnote to "devote more than 6% of their complaint to their legal claims" and "not copy and paste their complaint," according to court documents. The case was appealed by the six UW sorority sisters to the U.S. 10th Circuit Court of Appeals in late September.

Federal court judges on Tuesday raised several questions about the case, including whether it was dismissed on proper grounds for appeal, whether that court had jurisdiction over its appeal and if KKG retained the right to interpret the definition of "woman" in accordance with its own bylaws.

Questions of jurisdiction

"The issue in this appeal is actually quite narrow," said May Mailman, attorney for the six sorority sisters. "The question before the district court and this court is not the interpretation of 'woman.' The question is whether plaintiffs plausibly allege a breach of fiduciary duty. And we do."

Mailman argued the district court failed to address the merits of the case, which laid grounds for the sorority sisters to appeal. She said the KKG directors "unilaterally changed the nature of the organization by adding a category of members" and did so "in bad faith."

The appellant attorney didn't get far in her arguments, however, before Judge Carolyn McHugh interjected.

"Let me interrupt — I have a preliminary question as to whether we have jurisdiction to hear this case at all," McHugh said.

The judge said there needed to be a final decision from the district court before the panel "could exercise subject matter jurisdiction." McHugh referred to Johnson's directions in the footnote in his dismissal of the case, advising the plaintiffs to rewrite their arguments before they refiled the lawsuit.

"It seems to me (the district court's decision) was not final," McHugh said.

In October, the defendants in the case — KKG, KKG President Pat Rooney, and KKG Building Co. — filed a motion to dismiss the appeal, with this argument of jurisdiction as one of its primary reasons. The filed motion from the defendants' attorneys stated the district court dismissed the plaintiffs' first amended complaint, but not the case as a whole.

"Under this Court's precedent, a dismissal without prejudice that does not dismiss the entire case is not a final appealable order," KKG's attorneys wrote in their motion to dismiss.

Mailman responded on Tuesday that "a promise had been broken," and the district court refused to rule on that broken promise.

Senior Judge Michael Murphy pushed on whether there were claims that could have been amended in a new filing with the district court, indicating both the tort and/or the contract claim.

"Can you (amend it)? Are you authorized to do that by the order of the district court judge?" Murphy said.

Mailman said the plaintiffs could certainly ask the district court for permission to refile. However, she said all the claims "boiled down to whether that promise was broken."

Can KKG expand its definition of 'woman'?

Natalie McLaughlin, the defense attorney for KKG and Rooney, argued before judges that, under Ohio law, where KKG is based, the KKG council was allowed to interpret its own bylaws as a volunteer organization, consistent with its governing documents.

In 2018, the national organization expanded its membership to include transgender women.

KKG stated in a brief filed in January with the appeals court that the organization never defined the term "woman" in its bylaws.

The only exception under this law is if that interpretation is deemed as "unreasonable and arbitrary" by a court, McLaughlin said.

"That term 'woman' is not a term with a singular definition," McLaughlin said Tuesday. "The issue here is whether the fraternity council has the right to interpret the term 'woman.'"

McHugh asked if this argument would still be upheld if it were changed by the KKG council to include cisgender men.

"Would your same argument fly, that it's simply an interpretation?" McHugh said. "And they have the absolute right to interpret it any way they want?"

McLaughlin responded that the only time a court can step in, under Ohio law, is when an organization's interpretation is proven both unreasonable and arbitrary.

"That particular interpretation is not before the court today," McLaughlin said.

Judge Richard Frederico said the argument from the appellants is that this is not about "interpretation," but "legislation," since the organization added language to include individuals who identify as a woman.

"When you're adding language 'and those who identify as women,' you're creating a new category (of membership) altogether," Frederico said.

McLaughlin said the argument was whether the KKG council had the right to interpret its own bylaws — not whether that change was announced in the best form.

"We cannot expect a volunteer board to communicate their interpretations as precisely as a legislator drafts a statute," McLaughlin said.

Reactions from both sides

Independent Women's Forum held a "Save the Sisterhood" demonstration after the oral arguments were heard Tuesday in front of the Byron White U.S. Courthouse.

Mailman, who is director of the Independent Women's Law Center, told the crowd of 50 onlookers, many of them members of the media, that the court found "small reasons" to avoid addressing the case.

"All of us have something we could and would rather be doing than policing the Kappa directors' unlawful insertion of men into a women's-only story," Mailman said. "A root canal would be more pleasurable."

Mailman added it was "obvious" the appellate judges knew the KKG council tried to "secretly and dishonestly" change their bylaws to include transgender women.

"They're trying to avoid that because, somehow, there have been pressures in society that have minimized the importance of women and women's spaces," Mailman said.

Women's Declaration International (WDI) USA President Kara Dansky also spoke at the news conference, arguing the fight against the admission of transgender women into female-only spaces is a nonpartisan issue.

"We are leftists, we are feminists. We are lesbians, bisexuals and straight women," said Dansky, who identified herself as a leftist Democrat. "We fight for all women and girls as a sex class."

WDI submitted an amicus brief in support of the six sorority sisters in the case.

Former KKG President Patsy Levang also spoke at the demonstration, saying she was "kicked out" from her position after she spoke up "on behalf of the women in Wyoming."

"This is the civil rights issue of our lifetime," Levang said. "The debunking of what a 'woman' is has never been questioned, and we cannot go forward, willy nilly defining woman as anything that gets defined by a political agenda."

Wyoming Equality, a Cheyenne-based nonprofit organization that advocates for LGBTQ+ rights, sent out a news release the day before the oral arguments, siding with Johnson's dismissal of the case. Director Sara Burlingame, a former Wyoming lawmaker, said she was "optimistic" the 10th Circuit judges would agree with the district court's decision.

"I believe the handful of activists that are convening to create a spectacle beforehand will make it clearer than we ever could: they are here to bully and intimidate," Burlingame said in the release. "The rule of law is our best defense against the tyranny of a mob."

This confidence was shared by the KKG defendants. In an emailed statement, the organization said it will continue defending itself against the plaintiffs who "use the judicial system to take away a private organization's fundamental rights and cause lasting damage to individuals and to our membership."

"We are confident the federal court will uphold the decisive ruling of a federal judge in Wyoming and bring a swift resolution to this matter," KKG representatives stated.

Wyoming sues Biden over Title IX

On the same day as the 10th Circuit arguments, Gov. Mark Gordon announced in a news release that Wyoming had joined other states and private coalitions in a lawsuit against the Biden administration over its new Title IX rule. The U.S. Department of Education released a final version of its new Title IX regulations, the government's response to sex discrimination and sexual harassment, on April 19.

"Wyoming will fight the Biden administration's attempt to rewrite Title IX. The state adamantly upholds its core principles of fairness, privacy and the sanctity of women's sports, opposing any imposition of ambiguous standards that threaten these ideals," Gordon said in the release. "This is yet another instance of federal overreach, seeking to impose a new interpretation on a longstanding law."

The new regulations are set to go into effect on Aug. 1, giving federally funded public K-12 schools, colleges and universities the ability to alter their Title IX policies. These new regulations now include harassment based on sexual orientation and gender identity.

"In Wyoming, we protect our girls. We will never allow outrageous political agendas to get in the way of that," State Superintendent of Public Instruction Megan Degenfelder said in the release. "Not in bathrooms, not in education, not in sports. Period."

The lawsuit, led by Kansas Attorney General Kris Kobach, alleges the change "violates the First Amendment rights of educators, school employees and fellow students, as well as private organizations, who have sincerely held religious beliefs that would prevent them from complying with the rule," according to the release. It also raised concerns about a college's ability to handle sexual harassment accusations.

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Hannah Shields is the Wyoming Tribune Eagle's state government reporter. She can be reached at 307-633-3167 or hshields@wyomingnews.com. You can follow her on X @happyfeet004.