by Maggie Mullen, WyoFile

An Ohio court transferred a lawsuit Thursday to Wyoming’s U.S. District Court because of its similarity to a high-profile case involving Kappa Kappa Gamma at the University of Wyoming and its admission of a transgender woman.  

“This case is about whether Kappa Kappa Gamma (“Kappa”) may allow transgender women to join its sisterhood,” U.S. District Court for the Southern District of Ohio Judge Michael H. Watson wrote in his decision. 

The same issue is the subject of another case in another federal district court, Watson wrote, and “because they are duplicative, these two cases should not proceed simultaneously, for a plethora of prudential reasons.”

More specifically, Watson pointed to the “first-to-file rule,” which calls for the court in which the first suit was filed to oversee subsequent cases, too. 

The initial suit began in April 2023 when six members of Kappa Kappa Gamma at the University of Wyoming filed a lawsuit in the U.S. District Court for the District of Wyoming against the sorority for admitting Artemis Langford, a transgender woman. 

The lawsuit was dismissed. The suing sorority sisters’ appeal was also unsuccessful. In the midst of that legal battle, Patsy Levang and Cheryl Tuck-Smith, two Kappa Kappa Gamma alumni, filed a separate complaint in the U.S. District Court for the Southern District of Ohio against the organization after they were expelled from it.

The Kappa Kappa Gamma house is pictured on a fall day in 2023. (Madelyn Beck/WyoFile)

Levang and Tuck-Smith openly opposed Kappa’s trans-inclusive policy and supported the plaintiffs in the Wyoming case, including publishing an op-ed in the National Review. That violated the organization’s media policy, according to the sorority’s court filings. 

Kappa Kappa Gamma also claimed that Tuck-Smith violated a separate policy when she used the organization’s membership list to contact other alumni about the ongoing litigation. 

Ultimately, the organization’s fraternity council — which functions as a board of directors — voted to terminate both Levang and Tuck-Smith’s membership. 

In their complaint, however, Levang and Tuck-Smith argue the termination was retaliatory. 

They also claim that Kappa Kappa Gamma “is bound to defend the single-sex nature” of the organization, and by including transgender women it has “improperly attempted to broaden its membership criteria,” among other things. 

“This case raises issues about whether a private, non-profit organization can disregard its mission and fiduciary duties, disavow its governing rules and bylaws, ignore its legal and ethical obligations, deceive and silence its members, and retaliate against those members who object to this conduct,” the complaint states. 

The case is now in the hands of U.S. District Court Alan B. Johnson, who dismissed the Wyoming complaint last year. 

How did we get here?

The plaintiffs in the Wyoming case — Jaylyn Westenbroek, Hannah Holtmeier, Allison Coghan, Grace Choate, Madeline Ramar and Megan Kosar — accused the sorority of breaking its bylaws, breaching housing contracts and misleading sisters when it admitted Langford by vote of its members. 

In August 2023, Johnson dismissed the Wyoming case, ruling that the plaintiffs failed to adequately state a claim against Langford or her sorority, and that the government cannot interfere with how a private, voluntary organization determines its membership. 

Johnson ruled “without prejudice,” giving the plaintiffs the option to refile an amended complaint. He also gave them advice on how to do so.

“If Plaintiffs wish to amend their complaint, the Court advises Plaintiffs that they devote more than 6% of their complaint to their legal claims against Defendants,” Johnson wrote regarding their 72-page complaint. 

Instead of refiling, the plaintiffs hired two high-powered attorneys to appeal the dismissal to the 10th Circuit Court of Appeals. 

In June, the appellate court dismissed the plaintiffs’ appeal, ruling that it did not have jurisdiction over the case since the lower court had not issued a final order. 

The court also told the sorority sisters they could either seek a final judgement from the district court, or amend their complaint as Johnson suggested. In the six months since then, the plaintiffs have done neither and the case remains pending. 

First-to-file rule

When actions involving nearly identical parties and issues have been filed in two different district courts, Watson wrote in his decision, the court in which the first suit was filed should generally proceed to judgment.

“And, as a corollary, the court in which the later suit was filed should generally transfer, stay or dismiss,” he wrote. 

Furthermore, Watson wrote, to not apply the first-to-file rule “would be to condone forum-shopping.

“The Court does not accuse Plaintiffs of forum-shopping or bad faith, to be clear. But allowing Plaintiffs to proceed simultaneously on the same core claims in two fora, as Plaintiffs here seek to do, encourages forum-shopping.”

May Mailman, attorney for six students suing the Kappa Kappa Gamma sorority for admitting a transgender woman to its University of Wyoming chapter, exits the 10th Circuit Court of Appeals in Denver after giving oral arguments in the case. She’s followed by plaintiff Hannah Holtmeier. (Tennessee Watson/WyoFile)

The status of the case in Wyoming makes that point clear, Watson wrote, since “six months have passed since the Tenth Circuit instructed the Westenbroek plaintiffs to either amend their complaint or move for a dismissal without prejudice. 

“They have not done so. Why not?”

Watson wrote that someone in the position of the plaintiffs might respond with another question. 

“Why would we proceed in a forum that dismissed our claim already when instead we can wait and see whether the Southern District of Ohio will be more receptive?”

Alongside Johnson, the case was assigned to Magistrate Judge Scott P. Klosterman. However, the case was reassigned to U.S. Magistrate Judge Stephanie A. Hambrick after Klosterman recused himself for previously serving as an attorney for the defense in the Wyoming case.

This article was originally published by WyoFile and is republished here with permission. WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.

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