The Volokh Conspiracy
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Court Rejects Lawsuit by Sorority Members Against Sorority for Admitting Transgender Member
The sorority, the court held, had a First Amendment freedom of expressive association right to choose which students to admit (logic that suggests that a sorority would equally be free to exclude transgender members).
From Westenbroek v. Kappa Kappa Gamma Fraternity, decided today by Judge Alan Johnson (D. Wyo.) (the defendant is, for historical reasons, labeled a "fraternity," but today it would be described as a sorority):
Embittered by their chapter's admission of Artemis Langford, a transgender woman, six KKG sisters at the University of Wyoming sue their national sorority and its president. Plaintiffs, framing the case as one of first impression, ask the Court to, inter alia, void their sorority sister's admission, find that KKG's President violated her fiduciary obligations by betraying KKG's bylaws, and prevent other transgender women from joining KKG nationwide. A "woman", say Plaintiffs, is not a transgender woman.
Unadorned, this case condenses to this: who decides whether Langford is a Kappa Kappa Gamma sister? Though given the opportunity to vote this past fall, not the six Plaintiffs. Not KKG's Fraternity Council. Not even this federal Court. The University of Wyoming chapter voted to admit—and, more broadly, a sorority of hundreds of thousands approved—Langford. With its inquiry beginning and ending there, the Court will not define "woman" today. The delegate of a private, voluntary organization interpreted "woman", otherwise undefined in the non-profit's bylaws, expansively; this Judge may not invade Kappa Kappa Gamma's freedom of expressive association and inject the circumscribed definition Plaintiffs urge. Holding that Plaintiffs fail to plausibly allege their derivative, breach of contract, tortious interference, and direct claims, the Court dismisses, without prejudice, Plaintiffs' causes of action….
[Plaintiffs'] derivative claim condenses to this: from 1870 to 2018, KKG defined "woman" to exclude transgender women; any new definition may not be enacted, ultra vires, without a KKG bylaw amendment. Expectedly, Defendants counter: private organizations may interpret their own governing documents and define "woman" as including transgender women.
Defendants are correct. Defining "woman" is Kappa Kappa Gamma's bedrock right as a private, voluntary organization—and one this Court may not invade….
First, Ohio law is highly deferential to associational interpretation. "As a general rule, Ohio courts are unwilling to interfere with the management and internal affairs of a voluntary association." More specifically:
[T]hose who become members of non-profit corporations are presumed to have joined them with knowledge of their nature and the law applicable to them, and to have consented to be bound by the principles and rules of government, or the policy which they have adopted, or may adopt … [T]he member has, by voluntarily becoming a member of the order, chosen his forum for the redress of his grievances, and unless there has been some palpable violation of the constitution or laws of the corporation whereby he has been deprived of valuable rights, the civil courts will not interfere.
I turn to guidance from the United States Supreme Court. In Boy Scouts of Am. v. Dale (2000), the Court held that the application of New Jersey's nondiscrimination law, requiring the Boy Scouts to appoint James Dale, an openly gay man as a scoutmaster, ran "afoul of the Scouts' freedom of expressive association." The Court found that a state compelling the Scouts to include Dale would "interfere with the Boy Scouts' choice not to propound a point of view contrary to its beliefs." "[T]he First Amendment simply does not require that every member of a group agree on every issue in order for the group's policy to be 'expressive association.' The Boy Scouts takes an official position … and that is sufficient for First Amendment purposes." Chief Justice Rehnquist concluded:
'While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.'
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.
{Advanced by Defendants, Bostock v. Clayton County (2020), by contrast, is inapposite today. There, the Court held that "it is impossible to discriminate against a person for being … transgender without discriminating against that individual based on sex" because "to discriminate on th[is] ground[] requires an employer to intentionally treat individual employees differently because of their sex." Justice Gorsuch concluded that Title VII "prohibit[s] [employers] from firing employees on the basis of … transgender status." Both sides misapply Bostock. Defendants say that if the Supreme Court interpreted "discrimination because of sex" as protecting transgender individuals, so too may Kappa interpret its bylaws "to be similarly inclusive." Plaintiffs respond that the law's ordinary meaning at enactment (i.e., KKG's definition of "woman" in 1870) "usually governs." Neither argument assists the Court today. Had the UW chapter or KKG denied Langford admission because she was transgender, Bostock, though addressing employer discrimination, would certainly amplify. On the other hand, Bostock concerned the Court's statutory interpretation of Title VII and not a private organization's internal bylaws.}
Voluntary organizations beget benefits and drawbacks. KKG provides community on campus and a professional network for life. Forty-four women in Laramie seemingly prioritized those benefits when they rushed. Membership, on the other hand, relinquishes a dose of personal autonomy. That organization may say or publish something anathema to one or a faction of members. Take the 2018 Guide, speech that Plaintiffs undoubtedly disagree with. Just as the Boy Scouts were "an expressive association" entitled to First Amendment protection, so too is Kappa Kappa Gamma. See Dale ("It seems indisputable that an association that seeks to transmit such a system of values engages in expressive activity."). The law, or this Court, may not interfere with—whether promoting or discouraging—that speech. Dale controls today, interestingly with the shoe on the other foot. Whether excluding gay scoutmasters in Dale or including transgender women in Kappa, this Judge may not invade Kappa's sacrosanct, associational right to engage in protected speech. KKG's "official position" of admitting transgender women, even if decreed by a mere "delegate", is speech which this Court may not impinge.
Plaintiffs respond that Kappa's freedom of expressive association does not insulate the organization from amendment of its own bylaws. I disagree, especially where Plaintiffs cannot point the Court to the bylaw that defines "woman" the way they wish.
Of course, an organization binds itself via its bylaws. Those bylaws state that a new Kappa "shall be a woman". The parties diverge from there. Whereas Plaintiffs circumscribe "woman", their delegate augmented the same. In the Court's view, that is a lawful interpretation—explicitly authorized per the sorority's Standing Rules—of an otherwise-silent bylaw. See ECF No. 6-1, at 119 ("The administrative duties of Fraternity Council shall include … [i]nterpreting the Fraternity Bylaws and Standing Rules[.]"). Plaintiffs' plea that the Court interpret "woman" as it was in 1870 clashes with this and other Courts' deference to organizational autonomy, or the notion that organizations deserve considerable latitude to interpret their own bylaws. For instance, the Powell court in Ohio spotlighted an exception to courts' general unwillingness to interfere with a voluntary association when "there has been some palpable violation of the constitution or laws of the corporation whereby [the member] has been deprived of valuable rights." Plaintiffs make no such showing. Instead, they ask this Court to overrule one interpretation and inject another. The Court refuses to do so….
In summary, the delegate of a private, voluntary organization, in pursuit of "inclusiv[ity]", broadened its interpretation of "woman". The Court will not interfere with its result, nor invade the organization's freedom of expressive association.
The court also concluded that KKG didn't breach any contract with plaintiffs: "Giving effect to the membership contract before the Court, KKG undertook no contractual obligation to reject transgender women."
KKG is represented by Brian W. Dressel and Natalie Marie McLaughlin (Vorys Sater Seymour and Pease LLP) and by Scott P. Klosterman.
