The six students who sued a University of Wyoming sorority for admitting a transgender woman cannot appeal a judge’s decision to dismiss the case. That’s according to attorneys for Kappa Kappa Gamma, who filed a motion to dismiss in a federal appeals court this week.
Meanwhile, the plaintiffs appear to be anticipating a long legal battle. According to court documents, they’ve hired two high-powered attorneys, including one who clerked for Supreme Court Justices Antonin Scalia and Warren Burger, and another who worked as a legal advisor for former President Donald Trump.
In August, U.S. District Court Judge Alan B. Johnson ruled against the plaintiffs — Jaylyn Westernbroek, Hannah Holtmeier, Allison Coghan, Grace Choate, Madeline Ramar and Megan Kosar. The sorority sisters, who originally sought to sue anonymously, asked the court in March to void Artemis Langford’s membership in the group on the basis of her transgender identity.
In 2022, Langford was admitted by a vote of the local chapter’s membership, which the plaintiffs argued broke the organization’s bylaws and breached housing contracts. They asked the court to prohibit “any other man” from joining the sorority and for monetary and punitive damages.
Johnson, however, ruled in August that a court cannot interfere with how the sorority determines its membership since it’s a private, voluntary organization. He also concluded the plaintiffs failed to adequately state a claim against Langford and the sorority.
Because the ruling was “without prejudice,” plaintiffs were given the option to refile.
“If plaintiffs wish to amend their complaint, the court advises that they devote more than 6% of their complaint to their legal claims against defendants,” Johnson wrote.
“Finally, if provided another opportunity to clarify unclear language within an amended complaint, Plaintiffs should not copy and paste their complaint in lieu of elaboration or legal research that assists the Court in disentangling their claims,” he added.
The plaintiffs did not refile the lawsuit. Instead, they filed a notice of appeal last month in the 10th Circuit Court of Appeals in Denver. In that notice, plaintiffs said they would not pursue any claims against Langford.
An actual appeal had not been filed by press time.
The lawsuit sparked considerable national debate. But Johnson treated the controversial case as a legal issue, several attorneys told WyoFile last month.
Cassie Craven, one of the original attorneys for the plaintiffs, sought to cast the court’s decision in another light.
“The judge converted this into a political issue,” Craven said in her most recent appearance on Fox News. Sylvia May Mailman, one of the new attorneys for the plaintiffs, also weighed in following the dismissal.
Johnson “dealt a blow to sororities, women’s privacy, and the English language,” Mailman said in an Independent Women’s Forum post online.
Independent Women’s Forum is a DC-based, right-wing policy group. Its affiliate organization, Independent Women’s Voice, lobbied against the Equal Rights Amendment, the Equality Act and the Paycheck Fairness Act. More recently, the policy group came into the spotlight for crafting the model legislation known as the Women’s Bill of Rights, which provides a legal definition of a woman and a man that excludes transgender and nonbinary people.
Mailman is a senior legal fellow for the two organizations’ legal advocacy arm, Independent Women’s Law Center. A Harvard Law School graduate, Mailman was most recently deputy solicitor general in Ohio. Before that, she served as counsel in the Trump administration from 2019 to 2021.
“My responsibilities included defining the appropriate, and often limited, reach of agency authority” in health care, immigration, education and women’s issues, Mailman told a subcommittee for a U.S. House Judiciary Committee in July. The subcommittee was holding a hearing on gender-affirming care.
Gene Schaerr is the other attorney plaintiffs have recently hired. After graduating from Yale Law School in 1985, Schaerr clerked for Supreme Court Justices Warren Burger and Antonin Scalia. He also clerked for then- Judge Kenneth Starr — known best for his time as the independent counsel that investigated former President Bill Clinton — in the U.S. Court of Appeals for the D.C. Circuit. From 1991 to 1993, Schaerr served as associate counsel to President George Bush.
He has extensive experience in state and federal appellate courts, including in the 10th Circuit where he represented Utah when its ban on same-sex marriage was challenged.
Experience aside, the sorority sisters’ new attorneys may have an unappealable ruling on their hands.
“Appellants appeal a district court order that is not appealable,” lawyers for the sorority stated in their motion to dismiss.
The argument is straightforward, but hinges on a procedural requirement of the federal appellate courts. It comes down to how exactly Johnson ruled against the plaintiffs.
Johnson granted an order to dismiss without prejudice, “even offering thoughts on how Appellants might amend the operative complaint, and only dismissed the First Amendment Complaint, not the case as a whole,” the motion to dismiss the appeal states.
“Under this Court’s precedent, a dismissal without prejudice that does not dismiss the entire case is not a final appealable order,” attorneys for Kappa Kappa Gamma argued.
Ryan Semarad, a Casper-based trial attorney with appellate experience, said the appeals court doesn’t “like to issue rulings on shifting ground.
“So if the underlying order is just a temporary thing or it’s conditional, and not final, they don’t want to intervene,” Semarad said. “They’re going to say, ‘No. No, that case isn’t done yet.’”
The sorority sisters must file a response by Oct. 24. Langford, meanwhile, remains a member of the sorority.