NPC Files Amicus Curiae Brief in KKG Transgender Appeal 

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

On January 10, 2024, the National Panhellenic Conference (NPC) filed an amicus curiae brief in the U.S. Court of Appeals for the Tenth Circuit supporting Kappa Kappa Gamma (KKG) and urging the appellate court to affirm the dismissal of the underlying lawsuit against KKG.^[1] That suit had challenged the admission of a transgender female as a member of the KKG chapter at the University of Wyoming.

An amicus curiae brief is also known as a “friend of the court” brief. Anyone not a party to the case but who may have an interest in it may seek to file such a brief. In this case, the parties agreed on, and the court approved, the filing of amicus briefs.

The NPC Brief^[2] describes NPC as an umbrella group for twenty-six (26) national and international women’s-only social sororities. It impressively describes that “NPC sororities are located on more than 670 college and university campuses in all 50 states, with more than 340,000 current undergraduate members across 3,281 chapters.”^[3]

 The Brief highlights NPC’s concern that if the lower court’s decision dismissing the Complaint against Kappa Kappa Gamma were to be reversed, it could “strike at the core of sororities’ organizational independence and autonomy.”^[4] The Briefs warns that accepting Plaintiffs’ legal theories would “severely undermine sororities’ independence as private organizations and infringe on their members’ constitutional freedom of association.”^[5]

The NPC Brief makes three legal arguments providing substantial case law support for each:

1. The First Amendment’s freedom of association guarantees the fundamental rights of private organizations to establish their own membership criteria and to choose their own members.
2. Private organizations have a settled right to interpret their own bylaws and other governing documents and rules.
3. The Plaintiffs’ theory of liability would seriously undermine the organizational autonomy of NPC and its member sororities.

That last point is well captured in the Brief’s argument that:

NPC and its member organizations have played an important role in promoting the advancement and development of women in America. Sororities were arguably the very first “women’s groups,” originally founded over a century ago in the mid-1800s to provide women with a support system on college campuses that had only recently begun to admit women, and to provide women opportunities to advance themselves socially and academically in a world dominated by men. That tradition remains to this day, where sorority members encourage one another to become the best versions of themselves and to make the communities and the world a better place.^[6]

            It is that strong tradition, the Brief argues, which would be jeopardized if the Court concludes that KKG does not have the right to interpret its own governing documents and define its own membership, a decision that would expose NPC member sororities to the same result.

            Three groups have filed separate amicus briefs supporting the Plaintiffs-Appellants seeking to overturn the dismissal of the case against KKG: the Women’s Declaration International USA, Over 450 Kappa Kappa Gamma Alumni, and the Women’s Liberation Front. Several groups have joined in a second amicus brief supporting KKG: the Nathanial R. Jones Center for Race, Gender, and Social Justice; the National Center for Transgender Equality; the Women’s City Club of Greater Cincinnati; the American Civil Liberties Union of Ohio Foundation; and Jim Obergefell.^[7]

The Appellants now have until January 24, 2024, to file their optional reply brief, and then the appeal will be fully briefed. The case will then be assigned to a three-judge panel of the Court to conduct an oral argument and ultimately issue a decision. As such, a decision is not expected for at least a few months.

In the meantime, Kappa Kappa Gamma and its President, four Vice Presidents, Treasurer, and Panhellenic Delegate now face another lawsuit. On January 25, 2024, two former alumnae members of KKG, along with three other alumnae members filed suit in the U.S. District Court for the Southern District of Ohio, where KKG is incorporated and its headquarters located.^[8] The two former members had been terminated as members of KKG for activities related to supporting the original lawsuit now on appeal.

The new complaint, spread over 241 paragraphs, states ten (10) causes of action, including breach of fiduciary duties; violation of the Ohio Constitution’s freedom of speech protection; wrongful termination; and defamation. Many of the claims are like those made in the original case, but these are different plaintiffs and some significantly different claims.

[1] Brief of Nat’l Panhellenic Conf. as Amicus Curiae Supporting Defendants-Appellees, Westenbroek v. Kappa Kappa Gamma Fraternity, No. 23-8065 (10th Cir. Jan. 10, 2024) [hereinafter “NPC Brief”].

[2] The NPC brief was authored by counsel from the prominent Washington D.C. law firm of Arnold & Porter Kaye Scholer LLP.

[3] NPC Brief at 1.

[4] Id. at 2.

[5] Id.

[6] Id. at 17.

[7] It was Jim Obergefell’s case in the U.S. Supreme Court that established same sex marriage as a constitutional right. At the time of that case, Obergefell was a citizen of the City of Cincinnati, which may explain why the Nathaniel R. Jones Center (located at the University of Cincinnati College of Law), and the Women’s City Club of Greater Cincinnati joined in that amicus brief.

[8] Complaint, Levang v. Kappa Kappa Gamma Fraternity, No. 2:24-cv-00316-MHW-KAJ (S.D. Ohio Jan. 25, 2024).