Attorneys disagree over appeal of UW transgender sorority case

CHEYENNE — Recent filings by lawyers for both Kappa Kappa Gamma and the six University of Wyoming sorority sisters who filed a lawsuit against it disagree over whether a district court order can be appealed.

U.S. District Judge Alan B. Johnson dismissed the sorority sisters’ case without prejudice on Aug. 25, giving them an option to refile it. In the ruling, he said that KKG could admit members in accordance with its own membership policy under the First Amendment’s freedom of expressive association.

The judge advised the plaintiffs in a footnote that, if they decided to appeal, they should “devote more than 6% of their complaint to their legal claims” and “provide more factual detail.”

Attorneys for the sorority sisters filed to move the case to the 10th Circuit U.S. Court of Appeals on Sept. 25, and Artemis Langford, the transgender sorority sister the lawsuit was originally filed against, was dropped from the case.

The new appeal was filed against KKG, the president of KKG and KKG Building Co.

“This case is about crucial promises made to women and the plain meaning of contract terms,” Sylvia Mailman, one of the plaintiffs’ attorneys, wrote to the Wyoming Tribune Eagle last month. “It’s about decisions being made on high, without authority, to strip women of the female only spaces they are owed.”

Attorneys for KKG filed a motion to dismiss the appeal on Oct. 9, arguing the district court order was “not appealable.” The defendants’ attorneys argued the district court dismissed the plaintiffs’ first amended complaint, but not the case as a whole.

“Under this Court’s precedent, a dismissal without prejudice that does not dismiss the entire case is not a final appealable order,” KKG’s attorneys wrote in their motion to dismiss.

The defense attorneys referenced Eastom v. City of Tulsa in their argument, which held “(a) decision is final when it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”

The UW sorority sisters’ attorneys filed a 12-page response to the motion to dismiss on Monday, where they claimed the district court’s decision, which disposed of the entire case, was final, and thus appealable.

The UW sorority sisters’ attorneys filed a 12-page response to the motion to dismiss on Monday.

“The decision of the district court is final and appealable because it dismisses all of Plaintiffs’ claims and does so on legal grounds that Plaintiffs cannot cure with an amended complaint,” the sorority sisters’ attorneys wrote in their response.

In response to the cases referenced in the motion to dismiss, the sorority sisters’ attorneys argued “(d)ismissal of a complaint without prejudice does not mean the decision is ‘non-final under section 1291,’” according to court documents.

They also acknowledged the judge’s footnote, which was echoed in the motion to dismiss the appeal, but pointed out the footnote failed to suggest “any amendment that could bring Plaintiffs’ case to life.”

In part of their filed response, attorneys further argued the plaintiffs felt a need to appeal the decision on behalf of creating a “female only space” for all “Kappa women across the nation.”

“Plaintiffs bring this appeal because they must,” the argument read. The opposing motions will be referred to a panel of judges that will be assigned to consider the merits of the appeal. Both sides now must file briefs on the merits, with the appellants’ motion due within 40 days.

This story was published on October 25, 2023.