CHEYENNE — A lawsuit targeting Kappa Kappa Gamma and the first transgender woman to join its sorority ranks at the University of Wyoming could be the first of many.
Alturas Institute President David Adler, a constitutional scholar based in the Mountain West, told the Wyoming Tribune Eagle he sees the case “very much in the center of the culture wars in our nation, as states pass all kinds of laws that would regulate or perhaps diminish the rights of members of the LGBT community.”
“There’ll be many cases across the country in the coming years involving the rights of members of the LGBT community, so this is an ongoing issue,” he said. “This case has national implications. People across the nation will be watching it closely.”
The case Adler refers to was filed Monday in federal district court in Casper by seven anonymous members of the sorority, who are represented by Cheyenne attorneys Cassie Craven and John Knepper. They requested the court proceed anonymously due to the sensitive facts in the case, as well as “the strong likelihood that the nature of this lawsuit will result in threats and harassment from third-parties against individual students and their families.”
Their complaint was against KKG, President of the Fraternal Council Pat Rooney, Kappa Kappa Gamma Building Co., located in Laramie, and the transgender woman accepted into the organization last fall. Neither the attorneys nor the defendants provided comment to the WTE.
Plaintiffs also requested the court designate the transgender student “Terry Smith” in the case for similar privacy and safety reasons, and refer to her with “he/him” pronouns throughout the court documents.
Her initiation and the process by which she was voted into the sorority was the catalyst for legal action, following months of alleged back and forth with the national sorority’s Fraternity Council.
“The claim alleges that the leadership of Kappa Kappa Gamma Fraternity have breached their contract to provide a single-sex experience to its members,” a press release issued by the attorneys stated. “In addition, the Kappa Kappa Gamma leadership and staff have failed to address members’ concerns over violations of their own Charter, Bylaws and Standing Rules. This impacts not only the Wyoming chapter of Kappa, but the organization of a whole.
“Women are entitled to single-sex experiences and single-sex spaces. Women’s rights deserve protection.”
The attorneys pushed back against the notion that a transgender woman should be able to identify as a woman for the sake of ensuring a single-gender organization, as well as the sorority’s method for inclusion.
KKG published a “Guide for Supporting our LGBTQIA+ Members’’ in 2018, which addressed member selection for the sorority without citing any of the organization’s bylaws or other governing documents. It said the sorority is a “single-gender organization comprised of women and individuals who identify as women whose governing documents do not discriminate in membership selection except by requiring good scholarship and ethical character.”
The complaint argues the “commonly understood meaning of ‘single-gender organization’ is the same as ‘single-sex organization,’” and has to be either men or women.
“The Guide is an unlawful abandonment of the Sorority’s requirement of single-sex membership. Kappa Kappa Gamma’s founding principles and governance documents limit membership to women,” according to the lawsuit. “An adult human male does not become a woman just because he tells others that he has a female ‘gender identity’ and behaves in what he believes to be a stereotypically female manner.”
They asked the court to hold that the admission of “Terry Smith,” and any other man, as a member of the sorority is void, as well as declare that Rooney and members of the Fraternity Council violated their fiduciary duties to the sorority.
“Kappa’s bylaws and governing documents state that Kappa is a single-gender organization. Gender is not equivalent to biological sex, birth anatomy, or chromosomes. Rather, it is a broader construct encompassing identity,” the sorority’s legal counsel wrote to Knepper and Craven in response to a previous litigation threat. “A person’s gender identity is their subjective, deep sense of self as being a particular gender.
“As a single-gender organization, Kappa welcomes all women, including individuals who may have been born as males who identify as women.”
The sorority’s leaders are at risk for their stance. Plaintiffs have requested damages “reflecting the injuries the sorority has and will continue to suffer in its membership, including the closure of the sorority’s chapter at the University of Wyoming, loss of donations, decrease in alumnae support and participation, and permanent damage to the sorority’s reputation and mission.”
They’ve also sought direct relief for violating bylaws, standing rules and policies; pressuring students to endorse the initiation of the student; accepting an incorrect voting process; ignoring inappropriate and threatening behavior; and urging the plaintiffs to resign from the sorority if they disagreed.
Experts say the question of constitutional law doesn’t lie necessarily in the contract breaches alleged by the plaintiffs, but rather the path the court will take when it comes to KKG accepting transgender women as a part of its single-gender organization.
Constitutional scholar Adler said the fact that the Laramie chapter, backed by the national organization, has determined the transgender student is a woman for purposes of membership is key and makes the lawsuit an uphill battle.
The court would have to engage in what he described as a fact-finding mission to determine for itself that the student was not a woman.
He looked back on the Boy Scouts of America v. Dale case in 2000, when the Supreme Court majority determined that it was not the role of the court to determine how BSA best applied its own mission and purpose in order to refuse the admission of a gay scoutmaster. It was upheld that the organization had the right to reject and prohibit a gay scoutmaster based on freedom of association.
Adler said this First Amendment right could be used in this case to include a transgender woman because the Fraternal Council supported UW’s KKG Chapter accepting the student.
“Isn’t it interesting that the court and the Boy Scouts could defer to the organization’s right of determination of its own membership to promote what we would say would be a conservative cause,” he said. “And now a court has the opportunity to apply that same precedent, which would, in effect, promote a broader libertarian interest, that is the broader right of inclusion.”
He said this would “show how legal precedents can sometimes cut both ways in the culture wars in our nation.”
Georgia State University College of Law Professor Anthony Michael Kreis specializes in constitutional law, as well as studies the relationship between social change and the law. He said if the court didn’t accept the baseline premise that the organization believes transgender women are eligible for acceptance, it could trigger state action and infringe on the right to free association.
He said it is early in the pleading stage, though, and it’s not known what the true facts are.
“It’s the kind of case that, if handled insensitively by a court, will be ripe for a tremendous amount of damage, and could open up a can of constitutional litigation worms that I don’t think any court would really wish upon itself, unless it was really out to make a statement,” Kreis said. “And there are courts that are like that, to be sure.”
He noted there were courts in Texas that were “eager to engage in these cultural wars, and wish them on.”
“This is endemic of a broader social struggle, in terms of rights of LGBTQ people, and the allegations of privacy violations and the kind of burdens that are imposed by third parties by accommodating trans people. And so that is a broader national fight that is resonating in this complaint,” he said. “But it seems to me, to be blunt, this complaint is essentially a grievance from a handful of members of a sorority who just don’t like the fact that they were on the losing end of a majority decision to admit a trans person.”
However, the professor said there could be standing when it comes to contract law if there are multiple allegations of breaches because the environment was unsafe, or there was harassment, intimidation and humiliation.
This still brings into question if the actions are offensive because the person is transgender and would have been tolerated from a cisgender member of the sorority, according to Kreis.
“In evaluating this claim, the court will have to assess whether there was an environment that was objectively harassing, that was objectively offensive, that objectively impaired the contractual relationship,” he explained. “Or whether this is just part of a broader, antagonistic relationship that this group of people had with this one particular member of the sorority house.”
There were many reasons broken down in the clients’ statement of facts for the lawsuit, spanning from the voting process not being confidential, as is required, to the plaintiffs demonstrating “the disruptive effect of a man on the sorority experience.”
Harassment, intimidation and retribution were words used by the attorneys in personal anecdotes from the sorority members’ interactions with “Smith,” and for voting against “Smith” becoming a member.
They voiced concern for her behavior before she was accepted into the sorority, and described in detail the student’s height, weight, GPA and dressing pattern.
“Other than occasionally wearing women’s clothing, Mr. Smith makes little effort to resemble a woman,” the complaint stated. “He has not undergone treatments to create a more feminine appearance, such as female hormones, feminization surgery, or laser hair removal. Plaintiffs often see Mr. Smith with facial hair one would expect on a man who either did not shave that morning or whose facial hair has regrown by the evening.”
Allegations were made that the trans student had a Tinder profile that expressed an interest in women, watched women change and interact in the house, asked inappropriate and sexual questions, as well as took pictures of sorority members without their consent.
“Mr. Smith has, while watching members enter the sorority house, had an erection visible through his leggings,” according to reports from two witnesses. “Other times, he has had a pillow in his lap.”
It is interactions such as these that they claim have damaged their sorority experience and lowered both recruitment numbers and the number of women who wish to live in the house — which could make a viable case for monetary damages. Adler said the immediate resolution would be for the sorority chapter to allow all current members living in the house to withdraw or even return their rent payment, because they feel the housing contract was violated.
There is no guarantee which direction the court could go, but Kreis said LGBTQ+ rights organizations will have to take this very seriously.
“While this is one case, there could be a proliferation of similar cases that could do a lot of harm to trans rights, even though it exists outside of the constitutional law space,” he said. “It would be a mistake for trans rights activists and LGBTQ rights activists to ignore this or dismiss it because it is a contract-based claim.”
The lawsuit is not addressing anti-transgender laws, but it’s part of a growing trend of litigation. Many organizations across the nation have been gearing up or are already in the midst of fighting transgender student-athletes and gender-affirming care bans, and further attempts to limit LGBTQ+ rights.
It’s a local battle, too.
Wyoming Equality has expressed its intent to file a lawsuit against the state for the approval of Enrolled Act 92, which will go into effect July 1. The bill was passed by the Wyoming Legislature during its recent general session and bans transgender girls from competing in high school sanctioned sports. In case there is a stay on the law, an independent commission will be put in place to judge the eligibility of female athletes in interscholastic activities.
The American Civil Liberties Union of Wyoming also opposed the law and commented on the KKG lawsuit filed Monday.
“All young people should have the freedom to live their lives openly and honestly in a supportive community,” said ACLU of Wyoming Advocacy Director Antonio Serrano. “Transgender women are no different, and deserve the same dignity and respect as every other student.”
The Pew Research Center reported in September 2022 on how Americans view policy proposals on transgender and gender identity issues, covering possible restrictions on transgender athletes in sports or gender identity in school curriculum.
Responses showed a divide among the population. Nearly 64% of Americans were said to favor policies protecting transgender individuals from discrimination in jobs, housing and public spaces, but 58% said they would “favor or strongly favor policies that require transgender athletes to compete on teams that match the sex they were assigned at birth.”
Forty-one percent also said they would somewhat favor policies requiring citizens to use bathrooms that match the sex they were assigned at birth and not gender identity, or would favor or strongly favor making it illegal for public school districts to teach about gender identity in elementary schools.
Kreis said parts of the country are in a “moment of moral panic as a consequence of the tremendous amount of progress on the LGBTQ+ rights front.” He believes there are those who are trying to utilize that progress and foment backlash as a politically expedient way to gain power and said it’s easier when there is a vulnerable group without a large voting base.
He considers the Wyoming lawsuit an outgrowth of the larger conversation and deeper tensions in society.
“Typically the law often reflects our own prejudices and mirrors a lot of the things that we experience in society and political circles,” he said. “But it’s also a tremendous tool to push back against those kinds of prejudice, and to affirm some basic principles of constitutional values.”