KAPPA KAPPA GAMMA PREVAILS, AGAIN  

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

The litigation over Kappa Kappa Gamma’s (Kappa) decision to admit a transgender student identifying as female into its University of Wyoming chapter, is still not over. Kappa has prevailed for the second time in the U.S. District Court for Wyoming,^[1] but another appeal has already been filed.

The legal controversy has a complicated procedural history. The Wyoming District Court first dismissed the case in 2023. Plaintiffs appealed that decision to the Tenth Circuit Court of Appeals, which also dismissed the case upon finding that the lower court’s order was not final, thereby returning it to the District Court. In the meantime, another lawsuit raising substantially similar claims was filed in the U.S. District Court in Columbus, Ohio, Kappa’s state of incorporation. That case was ultimately consolidated back to the Wyoming District Court. There, Plaintiffs filed a Second Amended Complaint, to which the Kappa defendants responded with a renewed Motion to Dismiss. That is where things stood when, on August 22, 2025, the District Court issued a new dismissal—this time with prejudice.

As the judge explained in the most recent decision, the first time around:

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, and therefore the sorority was not contractually obligated to reject transwomen members.            

                                    […]

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.^[2]

Later, the Court noted:

When we ruled on this issue two years ago, we held that we could not impinge on Kappa’s First Amendment right of expressive association to include transgender women…The law of the case doctrine dictates we apply the same holding here, but even if that were not the case, we reach the same conclusion, independently, on the grounds that Ohio contract law allows Kappa to define “women” to include individuals who identify as women.^[3]

Plaintiffs attempted to rely on President Trump’s Executive Order 14168, which declared that “women…shall mean adult…human females” and “female…means a person belonging, at conception, to the sex that produces the large reproductive cell.” The Court declined to give much weight to that effort, remarking:

We are not entirely sure what this definition means, not having a degree in biology. But even assuming this definition aligned with Plaintiffs’, it only applies to the Executive Branch’s interpretation of federal laws and administration policy. It is not relevant in the world of private contracts, which is where we currently find ourselves.^[4]

Approaching the end of its 35-page decision, the Court emphasized that “Kappa has interpreted this term (woman) in accordance with its own governing documents.” Again applying Ohio law, the Court noted that Ohio precedent makes courts “unwilling to interfere with the management and internal affairs of a voluntary association.” As a result, “the matter is not one open to judicial discretion.”^[5]

Finally, the Court observed that Plaintiffs, in spite of their complaints, do in fact have a potential remedy, but not through the courts:

The reality is that Plaintiffs do have a remedy here—they are simply choosing not to use it. Plaintiffs could advocate for a new amendment to the Bylaws, defining the word “woman” as they wish, which would restrain Kappa from choosing between various reasonable definitions of the term.^[6]

In other words, the Court pointed Plaintiffs to Kappa’s Biennial Convention as the forum in which to pursue their proposed definition.

On September 17, 2025, Plaintiffs filed their notice of appeal to the Tenth Circuit Court of Appeals. The case will now return to the same appellate court that previously declined to hear it, and the Tenth Circuit will be asked once again to decide whether the District Court’s ruling should stand.

[1] Holtmeier v. Kappa Kappa Gamma Fraternity, No. 23-CV-51, 2025 WL 2684859 (D. Wyom. Aug. 22, 2025).

[2] Id. at *2.                                                              

[3] Id. at *9. Note that the Court applied Ohio law because Kappa is an Ohio corporation.

[4] Id.

[5] Id. at *12.

[6] Id. at *13.