Kappa Kappa Gamma Case Continues

Timothy M. Burke, Fraternal Law Partners, tburke@manleyburke.com

Haellie M. Gordon, Fraternal Law Partners, hgordon@manleyburke.com

On September 14, 2026, the United States Court of Appeals for the Tenth Circuit, sitting in Denver, Colorado and consisting of a three-judge panel, heard oral arguments on the appeal brought by various members of Kappa Kappa Gamma (“Plaintiffs-Appellants”) challenging the decision of Kappa Kappa Gamma’s chapter at the University of Wyoming to admit a transgender member. This case is already three and a half years old and is before the Tenth Circuit for the second time. Additionally, a second suit was previously filed in Ohio, the corporate home of Kappa Kappa Gamma (“Kappa”), which was later transferred to a Federal District Court in Wyoming.

Angela Lavin of the Cleveland, Ohio law firm, Wegman Hessler Valure, argued for Plaintiffs-Appellants. Natalie McLaughlin from the Columbus office of Vorys, Sater, Seymour and Pease LLP argued the case on behalf of Kappa and the other related Defendants-Appellees.

As is usual in federal appeals, each side was limited to 15 minutes for their arguments before the Tenth Circuit. Both sides were permitted some additional time to field questions from the three-judge panel.

The fact that Kappa was headquartered in Ohio was important as the Tenth Circuit was clear in indicating that Ohio law was going to be applied when it came to interpreting the ability, or lack thereof, of the Kappa Fraternity Council (“Council”) to interpret undefined terms in Kappa’s governing documents. “Woman” was an undefined term and the Council exercised authority specifically granted to it in the Standing Rules of the Fraternity to interpret “the Fraternity Bylaws and Standing Rules.” The Council interpreted the term “woman” to include all people who identify as women.

Even Plaintiffs-Appellants’ counsel appeared to concede that Kappa’s governing documents gave the Council the ability to interpret undefined terms but argued that the Council could not use that right to make a fundamental change in the nature of the organization.

McLaughlin, on behalf of Kappa, made it clear to the three-judge panel that Plaintiffs-Appellants, if they did not like what the Council had done, had the ability to attempt to change the Council’s determination by proposing amendments to the Rules and Bylaws or electing a new Council, either of which could occur at one of Kappa’s conventions.

Questions from the three-judge panel directed at both counsels most frequently dealt with Ohio rules that make it clear that courts generally will not interfere with the business judgements of a corporate board, describing that rule alternatively as the Ohio non-interference or business judgement rule.

McLaughlin’s toughest question was with regard to Plaintiffs-Appellants’ fraudulent inducement claim. More specifically, one of the judges asked if Plaintiffs-Appellants could not claim that it was a bait and switch to invite women to join Kappa without telling them that “biological men” might also be invited to membership. Lavin’s most difficult challenge appeared to be one judge’s suggestion that the Council’s interpretation of the meaning of the term “woman” to include transgender women was reasonable. The judge went on to agree that Plaintiffs-Appellants’ interpretation of the term “woman” was also reasonable, but it was up to the Council to decide which interpretation to apply.

The argument before the Tenth Circuit drew significant interest. Toby Eveland, managing partner of Manley Burke’s Chicago office, who attended the argument, observed, “The courtroom was packed and the judges were well-prepared with plenty of thoughtful questions for both sides.” Hundreds of people listened to the argument on livestream. Fox News covered it in advance. Following the argument, Plaintiffs-Appellants and their supporters held a press conference/demonstration outside of the Byron White United States Courthouse, which was scheduled to run for two hours with 15 speakers led by Riley Gaines, a Fox News contributor and the host of The Riley Gaines Show.

Predicting what the court will decide is something most lawyers will hesitate to do, but a hint might come from one reporter’s interpretation. On behalf of The Center Square, which describes itself as “America’s Nonpartisan accountability newswire built for taxpayers,” Joelle Webb wrote in her article on the argument that “the main premise of the defendant’s argument was that the counsel (sic Council) did not violate their contract because they are vested with the authority to interpret and implement the organization’s bylaws. All three federal judges appeared to agree with this claim…”^[1]

It is impossible to predict when the Tenth Circuit will issue a decision. It is not likely to be issued for several months.

An audio recording of the argument is available on the Tenth Circuit’s web site at http://www.ca10.uscourts.gov/oralargument/search.

[1] The Center Square, Sorority tells federal judge that allowing biological man violates their rights (Sept. 14, 2026) https://www.thecentersquare.com/colorado/article_7e3d36b9-cd86-43f8-bc60-05d8fc6a673a.html