Kappa Kappa Gamma Sued Over Transgender Member

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

In late March of this year, seven Jane Does “on behalf of themselves and derivatively on behalf of Kappa Kappa Gamma Fraternity,”^[1] filed suit in federal court in Wyoming against the Kappa Kappa Gamma Fraternity, the President of the Fraternity Council, the Kappa Kappa Gamma Building Co.—a Wyoming non-profit corporation—and Terry Smith (a pseudonym). The basis of the suit is that Smith is a transgender woman and the Plaintiffs refuse to accept that possibility, arguing that “a woman is an adult human female. An adult human male is not a woman, no matter how he chooses to describe himself.”

The 178-paragraph, 69-page Complaint, with numerous additional attachments, including copies of the Fraternity’s Bylaws, essentially argues that in admitting Smith to membership, Kappa Kappa Gamma has lost its status as a single-sex women’s organization. The suit has four causes of action. The first is a derivative claim, whereby the individual plaintiffs are actually bringing the suit on behalf of the Fraternity, claiming that “they are enforcing a corporate right just as shareholders may do in for-profit corporations.” The second cause of action alleges breach of contract, specifically referring to the individual plaintiffs’ housing contracts. The third cause of action is a tortious interference with a contract claim arguing that Kappa Kappa Gamma interfered with the plaintiffs’ contracts with the house corporation that owned the house where the plaintiffs were to live in. The fourth cause of action is labeled “direct cause of action” claiming the plaintiffs experienced a “loss of privacy, frustration of contractual expectations, and emotional distress” as a result of the Fraternity’s alleged conduct.

As to the Plaintiffs’ right to proceed anonymously as “Jane Does 1 through Jane Does 7,” the judge made short work of that, ruling within ten (10) days of the Complaint being filed that plaintiffs were required to file an amended complaint, substituting their real names for the Jane Does. In a 10-page order, Judge Alan B. Johnson of the U.S. District Court concluded that “Plaintiffs do not meet the high pseudonymity bar reserved for exceptional cases.” The Court quotes a U.S. First Circuit Court of Appeals decision to help explain his decision:

Litigation by pseudonym should occur only in “exceptional cases.” Lawsuits in federal court frequently invade customary notions of privacy and—in the bargain—threaten parties’ reputation. The allegations are often serious (at least to the parties) and motivated adversaries do not lack for procedural weapons. Facing the court of public of opinion under these conditions is sometimes stressful—but that is the nature of adversarial litigation.^[2]

The Plaintiffs have since filed their Amended Complaint, revealing both their own identities and that of the transgender woman whose membership is at the center of this lawsuit.

On Tuesday, June 22, 2023, the Defendants filed their Motions to Dismiss, moves that came as no surprise to many in this industry. The grounds for seeking dismissal include lack of (personal and subject matter) jurisdiction, as well as a failure to state a claim upon which relief can be granted. The Sorority Defendants’ Motion to Dismiss describes Plaintiffs’ Amended Complaint as “rife with false, inflammatory allegations that do not relate to the claims plaintiffs’ assert,”^[3] and further states that, putting aside the plaintiffs’ statements of “opinion and irrelevant allegations,” there is no viable claim set forth. Instead, as the individual member Defendant’s separate Motion to Dismiss asserts, Plaintiffs “bring college gossip before [the] Court and rehash stale boogeyman stories used to vilify the LGBTQ+ community for ages.”^[4]

Additionally, the Motions to Dismiss points out that no Kappa Kappa Gamma bylaw defines who qualifies as a “woman,” and the Sorority has allowed transgender women to qualify for membership since 2015, long before these particular Plaintiffs ever sought membership.

Kappa Kappa Gamma is far from the only organization of women that now accept, as candidates for membership or admission, transgender women who may have been assigned male at birth but now identify as female. That includes prominent women’s universities who emphasize that in doing so they remain women’s universities. That is also the case of other National Panhellenic Conference (NPC) members who remain women’s fraternities or sororities.

[1] Westenbroek v. Kappa Kappa Gamma Fraternity, No. 23-cv-51-ABJ (D. Wy. Mar. 27, 2023).

[2] Order Denying Plaintiffs’ Motion to Proceed Anonymously, Westenbroek, April 6, 2023 (ECF 3).

[3] Motion to Dismiss of Kappa Kappa Gamma et al, Westenbroek, June 20, 2023 (ECF 20).

[4] Motion to Dismiss of Artemis Langford, Westenbroek, June 20, 2023 (ECF 23).