Aside from the question of whether the six sisters could sue pseudonymously, the substantive issue raised in Westenbroek v. Kappa Kappa Gamma Fraternity was whether it violated the rights of sorority sisters when the University of Wyoming chapter admitted a transgender woman as a member.

District Judge Alan Johnson disposed of the case swiftly.

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.

A sorority (or fraternity) is a voluntary membership organization, and therefore has the authority to define woman any way it pleases and admit whomever it chooses. While the issues of having a “women” only space, of losing the privacy of bathrooms shared with a person with a penis and of feeling threatened by that person’s leer, the choice was up to the sorority by whatever mechanism the sorority chose to decide who would be invited to be a KKG and who would not.

The logic seems unassailable.

But the inquiry raises other concerns not so easily dismissed. What if the same person, a transgender women, rushed KKG and was rejected, and thereupon sued for sex discrimination under Title IX. Bear in mind, sororities are an adjunct to educational institutions, being formally recognized, participating in Hellenic Councils and financed to some extent through the university. which is subject to Title IX if it accepted federal funding. As I queried on the social media site formerly known as the twitters, would the same decision be rendered?

Court holds that definition of "woman" is left to the discretion of a voluntary membership organization.

Would court have held the same had the sorority been sued by transgender woman for refusing to admit her? https://t.co/2rmPrjcWG6

— Scott Greenfield (@ScottGreenfield) August 26, 2023

In the replies and a quote twit, some people replied that the outcome would have been the same based upon the Supreme Court’s decision in Boy Scouts v. Dale, where the Court held that, as a private not-for-profit organization, the Boy Scouts’ right to expressive organization under the First Amendment was violated by New Jersey’s public accommodations law. Accordingly, the Boy Scouts were not required to accept Dale, a gay activist, as an assistant scoutmaster.

In Yeaw v. Boy Scouts of America, a 1997 case before the California Supreme Court, a girl sought to be a boy scout and the court held that the Boy Scouts were not a “business” and were permitted to exclude women from its ranks.

Neither of these cases, however, invoked the prohibition against sex discrimination of Title IX. Of course, they also were decided decades ago, and, well, times have changed as have the sensibilities of the judiciary and the understanding of what Title IX prohibits and its reach into areas of expressive association that were previously considered beyond the statute’s grasp.

A more salient factor in any analysis of whether university adjunct programs like sororities and fraternities can discriminate against transgender students is that Title IX expressly carves out an exception for certain organizations, lest there be any question of whether they were covered.

Title IX does not apply to the membership practices of the Young Men’s Christian Association, Young Women’s Christian Association, Girl Scouts, Boy Scouts, and Camp Fire Girls. 20 U.S.C. § 1681(a)(6)(B); 34 C.F.R. § 106.14(b). All other programs and activities these organizations are governed by Title IX if they receive any Federal financial assistance.

That sororities weren’t included in the carve out could be a taken as a clear sign that Congress intended they be covered, or that it was so far-fetched at the time of passage that anyone would question their right to be single-sex organizations. On the one hand, Congress certainly knew sororities and fraternities existed, and so could have easily stuck them into the carve out. On the other hand, “sex” as written in 1972 meant the uncontroversial binary of male and female, and who could have guessed that in 2020, Justice Gorsuch would write the quasi-coherent Bostock decision and muddy everything up?

The argument that it violated the rights of sorority sisters to admit a transgender woman raises some issues for those who were already members, relied upon its single-sex membership and made their choices based upon that reliance. For people who shrug off the sense that there is any difference between transgender women and biological women, there is merely life experience and a penis in the way.

But the Boy Scout cases don’t really provide much of an answer if the suit comes from the other direction. For those who would elevate the rights of a transgender woman above the rights of any other women, the answer may be obvious. For women who seek privacy and an environment free of male inclusion, it may be less obvious. Either way, the issue hardly appears clear or resolved. Yet another open question in the morphing universe of gender.