Kappa Kappa Gamma argues court has no jurisdiction to determine if males can be sorority sisters

Attorneys for six Kappa Kappa Gamma sorority sisters argued before the US Court of Appeals for the Tenth District on Tuesday, with the judges questioning attorneys on both sides as to whether there was jurisdiction to bring the case before the court. The case centers around the inclusion of a trans-identified male in the sorority’s University of Wyoming chapter. 

May Mailman, arguing for the sorority sisters, told the judges in her opening, "the issue in this appeal is actually quite narrow. This case is at a motion to dismiss. 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." 

"The plaintiffs allege that the directors of Kappa Kappa Gamma unilaterally changed the nature of the organization by adding a category of members. Most importantly, the complaint alleges that the directors did this in bad faith. The complaint alleges that the directors dodged an honest conversation with the members by burying language in areas unlikely to be policed as a change to membership. And when the women in the Wyoming chapter faced harm from the change being implemented, they again avoided a good-faith conversation and applied pressure to ensure unquestioned acceptance." 

Judges in the court questioned "whether [they] have jurisdiction to hear this case at all," noting instruction given by the district court "on how you could fix your complaint and refile." 

"We could follow that, that footnote and write it better," Mailman said. "The problem is we couldn't write it to get around the determination on the merits. So, we could write a cleaner and prettier and nicer just not to fix the problem that exists here." 

"And so that's what I really want to address is what is that merits determination that we really can't get around. And here, the district court, instead of assessing the elements of a breach of fiduciary duty claim, said that he was unable to review that claim because of noninterference principles. But the problem is, there is no noninterference principle that forbids courts from looking into bad faith breaches of fiduciary duty." 

Mailman was also asked about arguments that the vote to include trans-identified male Artemis Langford was supposed to be anonymous but was not. Mailman said there wasn't a "good faith engagement" from the sorority despite letters about the voting process change, and that there was an "antagonistic nature" behind the sorority's actions to make the votes public. 

Natalie McLaughlin, attorney for the sorority, said the "district court correctly dismissed [the] lawsuit recognizing the right of an Ohio voluntary organization to not have a federal court interfere in its governance." 

As to whether the court had jurisdiction in this case, McLaughlin told the judges, "We believe they do not have jurisdiction." 

In regards to the allowance of a biological male into the female group, McLaughlin said that the word "woman" is undefined in the sorority's bylaws, and the fraternity council has the "duty" to interpret the terms in the bylaws "and that is what occurred here."  

"And so, the term women is undefined in the bylaws, and that term women is not subject to a singular definition. And everyone in this large and diverse organization of over 210,000 individuals does not interpret that term, women, in the same way. And Kappa's fraternity counsel are the volunteers of this organization who were elected to serve as the board and given that duty in the standing rules to interpret the terms and what appellants have asked the court to do is to elevate their interpretation above that of fraternity counsel. But what this Court should do is defer to fraternity counsel's interpretation because that is what is required both by Kappa's governing documents and Ohio law," McLaughlin said. 

One judge pressed, "What if the interpretation of women was that it included cisgender men? Would your same argument fly that it's simply an interpretation and they have absolute right to interpret it any way they want?" 

McLaughlin responded that particular issue was not before the court, but if it was the interpretation would have to be weighed as to whether it was "unreasonable and arbitrary." 

Members of the University of Wyoming Kappa Kappa Gamma sorority chapter spoke out on Tuesday after appealing their case to the US Court of Appeals for the Tenth District on Tuesday.  

"We were gaslighted into thinking we were the problem and we just needed to sit down and shut up. All women should have the right to speak up for their own safe spaces and not be threatened by outside voices," lead plaintiff Jaylyn Westenbroek, a former member of the sorority, said.  

Fellow Kappa Kappa Gamma sister Hannah Holtmeier said, "I can attest to the toll it takes on young women. Mentally knowing that at any point I could walk into the bathroom or step out of the shower to a 6 foot 2, 260-pound man was terrifying."