DENVER (CN) — Sorority sisters from the University of Wyoming can't bring an appeal in their lawsuit against Kappa Kappa Gamma for admitting the organization’s first transgender woman, the 10th Circuit ruled Wednesday, because the lower court has yet to issue a final appealable judgment.
"In essence, appellees argue that because the district court expressly denied their request to dismiss the claims with prejudice, and further because the district court offered guidance to appellants regarding how to amend the complaint, there is no final, appealable order,” U.S. Circuit Judge Carolyn McHugh wrote in an eight-page opinion.
Kappa Kappa Gamma was founded in 1870 as a women-only fraternity. It survives today as what the sisters call a "single-sex haven" across the nation's co-ed campuses.
In 2015, the Kappa Fraternity Council issued a position statement expanding membership to include “women and individuals who identify as women." In the fall of 2022, this allowed the organization to admit its first transgender sorority sister, University of Wyoming student Artemis Langford.
Jaylyn Westenbroek and five others sued Kappa Kappa Gamma and its president, claiming the leaders fixed the induction process to force them to accept Langford as a sister, while threatening to kick out anyone who opposed.
Chalking up the case to a dispute of rules best handled internally, U.S. District Judge Alan Johnson, a Ronald Reagan appointee, dismissed the case without prejudice on Aug. 25, 2023. Johnson’s opinion also included revision tips read as an invitation to file a second amended complaint.
The sorority sisters appealed.
Neither the 10th Circuit nor the lower court reached the question of whether the inclusion of a transgender woman is permissible without altering the organization’s bylaws.
Still, McHugh laid out the sisters’ options, "in the district court, appellants may stand on their existing complaint and seek a dismissal with prejudice so that they may perfect an appeal, or they may amend the complaint and pursue further proceedings in the district court."
Bill Clinton appointee U.S. Circuit Judge Michael Murphy and Joe Biden appointee U.S. Circuit Judge Richard Federico signed onto the opinion alongside McHugh, a Barack Obama appointee.
Westenbroek is represented by attorney May Mailman, director of the Independent Women’s Law Center. Reached for comment, Mailman said she disagreed with the court's finding.
“The Tenth Circuit desperately wanted to avoid the obvious, that Kappa’s directors acted in bad faith when they forced the Wyoming chapter to initiate a male. We disagree the court lacked appellate jurisdiction,” Mailman said in a statement. “As we explained in our brief, appellate courts consider district court decisions that go to the merits of the case, which the Wyoming decision certainly did.”
Attorney Natalie McLaughlin, of the Columbus, Ohio, firm Vorys Sater, represented Kappa Kappa Gamma, and declined to speak with Courthouse News. Kappa Kappa Gamma did not immediately respond to a request for comment.
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