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 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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