KKG won the right to admit a transgender member. But is this a trans-rights victory?

Sep. 2—CHEYENNE — A Georgetown law professor said Kappa Kappa Gamma's right to admit a transgender woman certainly benefited a transgender individual but said she didn't consider this an expansion of transgender people's rights.

U.S. District Judge Alan B. Johnson ruled on Aug. 25 that KKG had a right under the First Amendment's freedom of expressive association to admit Artemis Langford, a transgender woman, into the sorority's University of Wyoming chapter. In his order, Johnson referred to the U.S. Supreme Court's landmark case, Boy Scouts of America v. Dale, where the court held that the private organization had a right to dismiss a gay scoutmaster because his membership conflicted with the organization's values.

"Defining 'woman' is Kappa Kappa Gamma's bedrock right as a private, voluntary organization — and one this Court may not invade," Johnson wrote. "Dale's takeaway for the Court: the government may not defy the internal decision-making of a private organization, including the criteria governing that entity's membership."

Georgetown Law Professor Naomi Mezey, co-director of the university's Gender Justice Initiative, said this was a "big win" for Langford and other transgender women who wished to join KKG at the University of Wyoming. However, she doesn't consider the decision an expanded right for transgender individuals to join other college sororities or fraternities and other programs that may not accept them.

"It's an opinion that's not so protective of trans men or trans women as much as it's protective of an organization's own decisions," Mezey said. "Nothing about the judge's opinion is about transgender rights in and of themselves."

This same ruling, Mezey said, could, in fact, be used to revoke the admission of a transgender member into another chapter of Kappa Kappa Gamma, following the same precedent that each private organization had a right to choose who they wish to associate with.

"Now there's some question about whether the entire Kappa Kappa Gamma national sorority is taking this position," Mezey said. "It seems as if they certainly are welcoming trans women into the sorority, but they also do allow individual chapters to particulate their own interpretations, as well."

Since KKG's founding in 1870, the sorority had consistently proclaimed it was an association for women. In 2018, KKG expanded its definition to include the admission of transgender women. When the plaintiffs in the federal case claimed a transgender woman is not a "woman," Johnson replied that "the Court will not define 'woman' today," according to court documents.

"One of the things I think the court is very clear about is they've never defined 'woman' and, up until very recently, they never thought to define 'woman,'" Mezey said. "A voluntary women's association should get to decide how it defines 'woman,' and that's a core part of this expressive association principle."

The other core part of this order that Mezey said was worth noting was the relationship between a national organization and its individual chapters. The UW chapter, it seemed to the law professor, was in sync with the national organization's inclusion of transgender women.

There were two layers of applying expressive association in this case by the court, Mezey said, at both the national level and the autonomy of its individual chapters. The harder question to answer, Mezey said, was how to apply this fundamental principle in relationship between the national organization and its chapter.

But even in this context, the courts are resistant to interfering in this relationship. Through both the 2000 Supreme Court ruling and Johnson's Aug. 25 decision, the courts in these cases signified their resistance to cross a boundary that would impede on the policymaking of private organizations.

"They don't want to get involved in fights within voluntary communities," the professor said.

This reflection was echoed in Johnson's order. The judge wrote, at the beginning of the 41-page court document, "This case condenses to this: who decides whether Langford is a Kappa Kappa Gamma sister?... not the six plaintiffs. Not KKG's Fraternity Council. Not even this federal Court."

What others are saying

Sara Burlingame, executive director of Wyoming Equality, a group that advocates for LGBTQ+ rights, said Johnson's recognition of a private organization's right to accept a transgender person into their community was a reflection of Wyoming's values. The former state legislator regarded the decision as a win for the trans community.

"It was a real win for decency," Burlingame said. "I hope folks see this is a win for business. This is a win for the Wyoming value of independence and keeping the state from overreach."

Langford's attorney, Rachel Berkness, remarked on Johnson's use of her client's preferred pronouns and said while this might not have been a case to expand transgender rights, this was still a smaller victory for the trans community.

Cassie Craven and John Knepper, the plaintiffs' legal counsel in the court case, did not respond to requests for comment on the outcome of the case.

State Sen. Wendy Schuler, R-Evanston, who has fought against the inclusion of transgender women in high school and college sports, told the Wyoming Tribune Eagle in an email she was "disappointed with the federal judge's decision."

"I would guess that the sorority sisters at (KKG) at UW didn't see this coming, and probably feel like they don't have a 'safe haven' anymore," Schuler wrote. "Some of the sorority sisters there may be OK with this latest decision, but there will be others who will not and their rights are just as important."

Hannah Shields is the Wyoming Tribune Eagle's state government reporter. She can be reached at 307-633-3167 or hshields@wyomingnews.com. You can follow her on X @happyfeet004.