The definition of a “woman” will be a central debate in arguments on Tuesday before the Tenth Circuit Court of Appeals in a lawsuit brought by six sorority sisters who are challenging the decision by the leaders of a Kappa Kappa Gamma chapter to accept a biological male as a member.

The women allege that a transgender member of Kappa Kappa Gamma’s University of Wyoming chapter, Artemis Langford, invaded their privacy and “caused emotional distress” by engaging in “inappropriate and odd behavior” in their house — including photographing them without their consent, asking questions about sex and their genitalia, and displaying erections while staring at the women. 

The Kappa sisters are appealing a district court’s dismissal of the lawsuit last year. The lower court held that the leaders of the sorority had a right to define “woman” expansively to include transgender women. “Defining ‘woman’ is Kappa Kappa Gamma’s bedrock right as a private, voluntary organization and one this Court may not invade,” a federal district judge, Alan Johnson, wrote in the lower court’s order. 

“This is probably the most important controversy affecting college Greek life in general and especially sororities going forward,” a senior research fellow at the Heritage Foundation, Jay Richards, tells the Sun. “The trial before the Tenth Circuit is between members of the Kappa Kappa Gamma chapter at the University of Wyoming and the chapter itself, and I think honestly this indicates the problem,” he says, adding that it’s “outrageous” that the chapter has forced the sisters to include a “man among its members.”

“I think if the courts don’t step in and move in the right direction here we’re going to essentially see some sororities effectively destroying themselves in order to comply with the bizarre canons of gender ideology,” he says. 

Though organizations have First Amendment rights to interpret their policies, they also have contractual obligations to their members, he says, adding that sororities were founded “precisely to create private membership organizations for women at a time when male fraternities already existed.”

Ahead of oral arguments on Tuesday, the Independent Women’s Law Center Director and lead counsel representing the sorority sisters, May Mailman, tells the Sun that Kappa’s directors have a “simple duty” to respect the organization’s bylaws. 

“They utterly failed to do so by ending the sorority’s women-only membership and threatening existing members to accept the unlawful change or else lose their own membership,” she says. “If this fight were about any other common term, the violation would be obvious. Gender ideology is not a reason to upend simple legal principles, and we look forward to making our case to the Tenth Circuit.”

The women argue that admitting a biological male violates the sorority’s bylaws, which state that “a new member shall be a woman.”

Kappa was founded in 1870 as a “single-sex haven for collegiate women” in an attempt “to provide women the benefits of Greek-letter societies then reserved for men,” the brief says, noting that Kappa’s bylaws requiring members to be women “explicitly enshrine the sorority’s legal right to have sex-based membership practices under Title IX.” 

Kappa, in a response brief, argues that it has a right to interpret its own governing documents. 

“The Bylaws do not define ‘woman’ based on sex assigned at birth, chromosomal makeup, or any other genetic criteria,” the brief notes, adding that the bylaws don’t define the term “woman” at all and thus the Fraternity Council has authority to interpret it. “Since 2015, the Fraternity Council has interpreted the term ‘woman’ to include individuals who identify as women.” 

Kappa’s brief argues that a court should “not interfere” in a sorority’s decisions and determine membership status. 

“Appellants assume that the term ‘woman’ can only refer to an individual who is a ‘biological female.’ Although that is one interpretation of the term, it is not the only reasonable one,” the brief notes, adding that the sorority sisters “fixate” on the 1870s despite not knowing what “Kappa’s founders would have thought about transgender women.” 

The Sun was not able to reach attorneys representing Kappa Kappa Gamma.