Granted, it’s hardly the core problem of dealing with discrimination against transgender people, but it is one of the great many collateral issues that would obviously arise from the dogmatic assertion that transgender women were women, end of discussion.
The lawsuit against the national Kappa Kappa Gamma sorority, its national council president and Smith claims national sorority officials pressured the local chapter to violate sorority rules, including those for voting to induct new members.
The lawsuit asks for a judge to declare Smith’s sorority membership void and to award unspecified damages. The damages should reflect the local chapter’s decline in financial stability and donations because of Smith’s induction last fall, the lawsuit alleges.
Smith, a pseudonym, was inducted into the sorority as a transgender woman, and according to the national sorority, it does not discriminate on the basis of gender identity. Some sorority members were not so sanguine.
Smith has spent much time at the sorority house, however, including for a slumber party she allegedly did not leave until two hours after promised. The next morning, Smith became “sexually aroused” while watching other pledges change their clothes, the lawsuit alleges.
Smith, who identifies with female pronouns on Twitter, wears women’s clothing “only occasionally,” has not undergone medical gender transition and identifies as male on a Washington State driver’s license even though she legally could have identified on it as female or “X” gender, the lawsuit alleges.
“An adult human male does not become a woman just because he tells others that he has a female ‘gender identity’ and behaves in what he believes to be a stereotypically female manner,” the lawsuit says.
It’s a legitimate question whether a sorority, a space for women only, should include transgender women, and if so, what criteria should be required before doing so. But does it matter who the seven sisters are who are suing to get an answer to the question? Judge Alan Johnson has now denied their motion to proceed pseudonymously. Twice.
I yearn for the day where litigants seek their courts unburdened by the mere possibility of physical reprisal. That hope may be quixotic today. The digital age is one of comprehensive access, whether via electronic case files, search engines, or Twitter updates. Gone are the days where motions and orders collected dust in the anachronistic file rooms below this courthouse. Litigants’ privacy expectations have too changed. Federal lawsuits are, more and more, above-the-fold news. Add in salacious claims against one, who Plaintiffs concede, stands in the public forum and the media spotlight bums brighter. “But the threat of significant media attention—however exacerbated by the modem era—alone does not entitle a plaintiff to the exceptional remedy of anonymity under [Fed. R. Civ. P.] 10.” Rapp v. Fowler (S.D.N.Y. 2021).
Recognizing that the issue in the case strikes at a culture war core, if not core discrimination issue, Judge Johnson bemoans that it will likely be subject to viral interest. But so what, he concludes.
However, Plaintiffs’ conclusory fears of unspecified retaliation, sans any particularized facts, are insufficient to meet the exceptional circumstance of pseudonymity….
By contrast, Plaintiffs present little to demonstrate that they, themselves, are in “real, imminent personal danger.” For example, it is unclear if Plaintiffs have, in fact, faced threats or harassment. Compare ECF No. 4, 13 (“To the extent that this Court requires concrete evidence of threats of violence directed against each individual Plaintiff, this is impossible: no one knows their identities.”), with ECF No. 2,16 (“The young people who are parties to this litigation have already faced threats, harassment, and safety concerns.”) (seemingly referring to Smith, rather than Plaintiffs). The tragic, yet distant, events in Nashville, or a politician’s ill-advised innuendos, are irrelevant. Nor am I convinced that this is such an unusual case that Plaintiffs’ collective safety cannot be entrusted in the first instance to the University of Wyoming Police Department. Plaintiffs counter that my prior ruling “eliminated protection for all litigants.” I disagree. Plaintiffs’ reliance on the public’s “intense interest” in this case is a double-edged sword. On one hand, they argue that the case presents a groundbreaking issue of first impression with national implications. But, on the other, they say that same generalized scrutiny precipitates security risks and warrants their anonymity. Plaintiffs cannot have it both ways.
The plaintiffs argue that they fear harms ranging from reputational to physical retaliation. The court founds no basis in law to recognize the harms deriving from being named and tainted as fascists or nazis or transphobes. As for physical harm, the court found examples elsewhere or the almost certain fears expressed to show that harm is “imminent.” Judge Johnson rejected fears of physical harm as speculative as the plaintiffs have yet to be personally beaten or killed for their efforts.
This Court exists to serve the public. There is a universal public interest in access to Plaintiffs’ identities—one that is “presumptively paramount[] against those [interests] advanced by [Plaintiffs].”
Yet again, the generic “presumptive public right to know” has trumped the concerns of plaintiffs who raise a significant issue. Oddly, there is absolutely nothing about the identity of the plaintiffs that has any bearing whatsoever on the core issue presented. Who cares who they are? Does it have any relevance to any issue presented in the case? And yet, the generic presumption prevails over their fears of harm.
Plaintiffs have chosen to level accusations of impropriety against Defendants. They must now shoulder the burden of those accusations and walk in the public eye. Balancing the public interest against Plaintiffs’ showings of personal physical harm, I arrive where I landed last week: this is not one of those few exceptional cases involving a real danger of physical harm.
Given the controversial nature of the issue, the virality of internet exposure and the extremes to which activists will go to do harm to anyone challenging their cause, harm, whether reputational or physical, to the seven sisters seems almost assured. Must they wait until one of the plaintiffs is shot before Judge Johnson will find merit in their need for psudeonymity?
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“Must they wait until one of the plaintiffs is shot before Judge Johnson will find merit in their need for psudeonymity?”
I read the orders–the answer is no. But they must show some concrete threat, not something that amounts to “everyone knows we’re going to be harmed in some way.” The law requires lawsuits to be public, except in the rarest of cases, and for obvious reasons. The orders address those reasons. Litigants also have the right to know who’s suing who. Proceeding anonymously might be the rarest of legal critters. According to long-settled law, their argument isn’t just weak, it’s meritless.
That’s just the physical threat argument. Claims of emotional or reputational harm, whether merely possible or even likely, are non-starters. No amount of name-calling or its like will satisfy the necessary showing. Whether it’s considered waiver or self-infliction, there’s an easy solution: don’t sue.
Litigants knowing who’s suing who is not the same as litigants’ names being required in all publicly available filings. In my opinion, in a substantial majority of cases, there’s no need for litigants’ names to be known to the public if they would prefer to remain anonymous. We live in the internet age. I find parties in lawsuits online all the time. I never harass or plot to assault them, and almost never actually contact them, I do it out of a personal tendency to want to see that people are doing alright, but that’s not a universal disposition.
“…there’s an easy solution: don’t sue.”
In other words, name them publicly so they can be intimidated into withdrawing their lawsuit. Somehow that does not seem to be the way the justice system is supposed to work. If Oliver Brown had been intimidated into withdrawing his lawsuit against the Topeka Board of Education, by your logic that would have been ok. Does that still seem like a good idea?
Something everyone needs to relearn is that their words have to have limits. Liberals just shrugged when their words caused a disturbed man to show up at Justice Kavanaugh’s home armed and ready to kill him. The hard right similarly shrugged when their words caused rioters to break into the Capitol on 1/6. If people don’t dial it down, violence will continue to escalate and the next thing you know we are headed to a Yugoslavia style break up. Talking heads already talk about a “national divorce” as if it is just a matter of time.
Intimidated by words? Yes–I’m a lawyer and it’s the law. It’s not a philosophical question. Your second paragraph has nothing to do with the issue–this is a lawsuit, and it’s covered by very certain rules.
Perhaps “intimidated” is the wrong word. How about harassed, cancelled, tainted in perpetuity, smeared? Even if no one lays a hand on them physically, will their names not be present on the internet in perpetuity as transphobes to be despised and shunned? Is that the price of raising a legitimate legal issue nowadays, especially when their identities (which obviously will be known to the defendant even if pseudonymous) are irrelevant to the issue?
The mob is real and they can inflict very real damage to a college students’ future.
Again, that’s not the issue presented. The issue is whether the judge got it right. Based on decades of precedent from the Supreme Court and every circuit, he did. It’s not a hard legal decision, but he surveyed the law and explained the rationale.
But philosophically, yes, that sometimes is the price. Who should get the benefit of proceeding “John Doe?” Should it be limited to college students? Wouldn’t most litigants prefer to be anonymous? It wouldn’t take much to plead that there’s a threat a litigant could be cancelled. Should there be a few hundred thousand cases filed by pseudonym every year?
Whether they are permitted to proceed pseudonymously is, in any case, irrelevant. Unless each of the suing sorority sisters can obtain placement in witness protection, their identity will become public. And, because they are transgressing a core religious principle of our modern era, they will inevitably be harassed, doxxed, and hacked. Their reputations will be sullied and their futures tainted with the permanent stain of “intolerance”. It is possible that they will grow through this experience – that which doesn’t destroy you utterly can make you stronger in unexpected ways – but life will never be easy for them. Or they can withdraw the suit and proceed to nonjudicial approaches, including those well within the law (leaving the sorority, for example) as well as those well outside. The law will have failed them, and could never have done otherwise.
And that may be the greatest gift of all: the stern lesson that the law provides no recourse from a mob.
Perhaps it would be better for all parties involved if these extremely fringe dustups were not conflated with the real issues at stake for transgendered humans.
PS – I don’t understand why no ADULT HUMAN MALE has yet to sue for membership in a sorority. I’m old enough to remember a time when women still had to force their way into yacht and golf club membership.
Maybe this is fringe for you, transphobic fascist, but don’t erase other people’s existence.
These extremely fringe dustups are the natural consequence of how the real issues are being framed and advanced by advocates. Perhaps it would be better if they tried liberating sex and women from gender instead of subordinating them to it.
Not your best work Jake
While I get your broader point, aren’t fraternity/sorority membership lists at university chapters published online? If these seven girls had been allowed to proceed pseudonymously, it seems very likely that activists would have targeted the entire Wyoming chapter of KKG for that year or two for reputational attacks, and likely physical attacks against the sorority house as well. They may have even attempted to get the national KKG to censure the local chapter. Activists often have an unquenching thirst for blood, and when they can’t find the precise target for it, they’ll cast a wider net to collectively punish all who might be affiliated, so perhaps Judge Johnson wanted to contain the damage to these seven rather than the sorority chapter as a whole.
The “transgender” persons are willing to come out to push their bow-to-the-hat-on-the-pole campaign in public. It’s unrealistic to think it can be defeated anonymously from the shadows. The pole is always going to be set up in public, and when you don’t bow, everyone will see. That’s the whole point.