In Doe v. Kappa Kappa Gamma Fraternity, decided last Thursday by Judge Alan Johnson (D. Wyo.), several members of the KKG sorority at the University of Wyoming (despite the corporate name, KKG is a sorority) sued the central KKG organization for breach of contract and related claims, arising out of KKG's decision to allow Terry Smith, a male-to-female transgender student, to become a member:
Plaintiffs ask this Court for declaratory judgments ordering: (1) that "men who identify as women" are ineligible for KKG membership, including voiding, ab initio, Smith's admission; (2) Defendants' violation of their obligations to the KKG organization; and (3) Defendants' violation of a campus housing contract. Plaintiffs also seek permanent injunctive relief invalidating Smith's membership and prohibiting men from admission to KKG, as well as monetary damages. {Plaintiffs do not allege claims against Defendant Smith, but [named Smith as a defendant because they] maintain that Smith is a required party under Fed. R. Civ. P. 19(a)(l)(B).}
At this stage, the preliminary question has been whether the Does could proceed pseudonymously, on the theory that "Plaintiffs argue that they have 'already faced threats, harassment, and safety concerns' from this litigation, including a 'social media maelstrom' often encircling matters of intense public scrutiny like transgender rights." No, said the court:
Proceeding anonymously is uncontemplated by the Federal Rules of Civil Procedure. See, e.g., Fed. R. Civ. P. 10(a) (requiring that a complaint's title "name all the parties"), 17(a)(l) (prescribing that "[a]n action must be prosecuted in the name of the real party in interest"). Nevertheless, the Tenth Circuit has recognized certain "exceptional cases" where parties may proceed anonymously. Exceptional circumstances exist: (1) in "'cases involving matters of a highly sensitive and personal nature;"' (2) in cases involving a "'real danger of physical harm;"' or (3) "'where the injury litigated against would be incurred as a result of the disclosure of the plaintiffs identity."' Femedeer v. Haun (10th Cir. 2000)….
I conclude that Plaintiffs do not meet the high pseudonymity bar reserved for exceptional cases. Two of Femedeer's "exceptional circumstances" warrant consideration, including whether this case involves "matters of a highly sensitive and personal nature" or a "real danger of physical harm."
I begin with the former, which, I find, is unmet. Pseudonymous litigation has been permitted under this exception where the issues involve, as examples, "birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families." … Preliminarily, Plaintiffs' names are not highly sensitive or personal. "Courts facing … actions for sexual … harassment … in university settings have generally required adult plaintiffs to proceed in their own names."
Plaintiffs are also adults. Notably, this is not a case solely between members of the same sorority, nor is it a sexual harassment action. Rather, it is a breach of fiduciary-duty and contract case against out-of-state Defendants; Plaintiffs also seek declaratory judgments, injunctive relief, and damages. Courts generally disallow parties to proceed anonymously in such cases, finding that the public's interest outweighs the movants' privacy interests…. Thus, Plaintiffs' names are relevant and warrant disclosure…. See Doe v. Regents of the Univ. of Colo. (D. Colo. 2022) (stressing "the public interest in knowing … the identities of the parties" that "far outweigh[ed] the claimed privacy interests"—given that the suit was "a matter of public concern [that was] being litigated in a public court, and the public ha[d] a strong interest in knowing how our court system is being used to resolve such a dispute [involving misconduct accusations of individuals at a public university] and who is involved in the case"); Doe v. U.S. Dep't of Justice (D. Colo. 1982) ("[L]awsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among the facts is the identity of the parties.")….
I turn to the crux of Plaintiffs' Motion: that denying anonymity will lead to threats, harassment, and safety risks. Plaintiffs point to a recent protestor's uninvited visit to the KKG house and threatening social media communications as examples. The standard, however, is a "real danger of physical harm"—and one Plaintiffs have not met.
Plaintiffs have not shown that they are in real danger of physical harm. Despite the undoubtedly frightening presence of an uninvited visitor to one's home, it seems to this Court that the protester, in fact, supported Plaintiffs' views on transgender rights. Plaintiffs certainly expose themselves to criticism, ostracism, and vitriol by suing in federal court. However, such "subjective, psychogenic harms" plainly fall short of this exceptional circumstance. See Oklahoma v. Biden (W.D. Okla. 2022) (holding that possible criticism for refusing to take the COVID-19 vaccine did not warrant anonymity). Embarrassment from exposure of one's sex offender status was also insufficient in Femedeer. Similarly, here, broadcasting of Plaintiffs' views regarding the legitimacy of their fellow sorority member, or their alleged "psychological distress," both fall short. Oklahoma ("In any event, being subject to criticism in the public sphere, even if intense, does not pose a risk of mental harm sufficient to support anonymity."). Of-age Plaintiffs bring any social media backlash, or celebrity, on themselves.
I end by taking a step back. The First Circuit recently opined:
Litigation by pseudonym should occur only in 'exceptional cases.' Lawsuits in federal courts frequently invade customary notions of privacy and—in the bargain—threaten parties' reputations. The allegations are often serious (at least to the parties) and motivated adversaries do not lack for procedural weapons. Facing the court of public opinion under these conditions is sometimes stressful—but that is the nature of adversarial litigation.
Roe v. Heil (D. Colo. 2011) ("[T]hose using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials.").
The bottom line is this. Lawsuits are public events, and the public, especially here, has an important interest in access to legal proceedings. Plaintiffs may not levy serious accusations without standing behind them. Our system of dispute resolution does not allow Plaintiffs to cower behind an anonymity shield, especially one that is so rarely bestowed in this District or Circuit. Defendants do not have the option of proceeding pseudonymously. {Plaintiffs' motion for Defendant Smith's anonymity is belied by their own Complaint, which reveals Smith's real name in an unredacted email by Plaintiffs' counsel. The Court also notes that numerous media outlets have reported Smith's real name. See Raiser (10th Cir. 2005) (noting that when a party's name was already in the public domain, a request to proceed anonymously was "equivalent to asking us to put jack back in the box").} Defendant Smith, for example, stands publicly accused of concerning misconduct. Plaintiffs must so too endure the scrutiny that accompanies public lawsuits.
At the end of the day, I find that Plaintiffs have not demonstrated that this is one of those few exceptional cases involving highly sensitive or personal matters or a real danger of physical harm. Furthermore, after weighing Plaintiffs' alleged privacy rights against the public interest favoring openness, this case, at present, does not warrant pseudonymity.
The following day, plaintiffs asked for reconsideration "in light of developments since the filing of the Complaint ten days ago"; that motion is still pending:
The Court held that Plaintiffs "have not shown that they are in real danger of physical harm." 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. But the experience of the past ten days is instructive.
Last night, on April 6, 2023, Riley Gaines was speaking about the need for protected spaces for women on a university campus in California, and she was assaulted by individuals asserting that "trans-women are women." Ms. Gaines was barricaded in a room for three hours; she was physically assaulted as she was escorted out of the event by law enforcement, all the while being screamed at and called a "fucking transphobic bitch" by biological men.
On April 2, 2023, Representative Karlee Provenza CD-Laramie), who serves as the sitting House member for the district of the University of Wyoming where the Plaintiffs are currently located, posted an ANTIFA referenced meme that received national attention. See Exhibit 1. The meme depicts a woman holding an assault rifle with a scope and the words, "Auntie Fa Says protect trans folks against fascists & bigots!" Rep. Provenza has been publicly censured by the House Leadership. At the same time, the Speaker of the House noted that Rep. Provenza has received death threats as a result of her post on social media. {The statement by Rep. Provenza stated that she intended to convey the need for the 2nd Amendment to protect individuals and minority "communities." Rep. Provenza is a personal acquaintance of Smith, and it remains unclear whether Rep. Provenza considers Plaintiffs to be some of the 'bigots' who are attacking the transgender community and whose actions must be met with firearms.}
Also of note, after this case was filed, undersigned counsel were informed by university officials that the Church Elder who recently hosted a table in the University of Wyoming Student Union related to Terry Smith has also received death threats.
Contrary to the suggestion in the Court's order on April 6, 2023, death threats and safety concerns in this matter go both ways. Doc. 3 at 8 (stating "[i]t seems to this Court that the protester, in fact, supported Plaintiffs' views on transgender rights").
The original request made to this Court contemplated relief for both the male (selfidentified transgendered individual) referred to as "Terry Smith" and the Plaintiff Jane Does. Various publications then chose to identify Smith by name. A March 30, 2023, article in the Branding Iron [the University of Wyoming student newspaper] reported that Smith has "faced statewide and national backlash" since induction.
The Sorority members have been told to not wear their sorority letters around campus for their own safety and the UW law enforcement presence has increased to keep them safe. But the Plaintiffs have a vulnerability that extends beyond the individual above and almost all of the plaintiffs in the cases cited by the Court: everyone knows where they live. Their only current protection is that the general public does not know which of the forty or so residents they are. If the Court's standard for anonymity is that Plaintiffs must wait for personalized death threats and harassment before they can become anonymous, then the Court has eliminated protection for all litigants.
The Court's opinion also states social media attacks are the sort of "criticism, ostracism, and vitriol" that should be expected, and Plaintiffs have brought "any social media backlash, or celebrity, on themselves." It is unclear whether this means that Internet death threats are not to be taken seriously or that the Plaintiffs are like the sexual assault victim who "asked for it." These women are understandably concerned about their lives and their safety. Everyone already knows where they live on campus. The present climate regarding transgender issues, particularly in the wake of the Nashville school shooting and attempted Colorado shooting, both with transgender individuals, remains real and present.
The Court's opinion noted that "numerous media outlets have reported Smith's real name." Plaintiffs would also add that some of these media outlets have exaggerated the allegations in the verified Complaint. Defendant Smith deserves kindness, not anger and harassment. Although some of Smith's behavior is troubling, the Plaintiffs want him treated with respect. {Nor should a missed redaction in 235 pages of attachments be seen to reflect hidden motive. Usually, such oversights are resolved with a call from the clerk's office so a corrected version can be provided.} This was the basis for the request for his anonymity.
As to anonymity, however, the Plaintiffs are not similarly situated. Smith has put his own name out in the public forum; the Plaintiffs have not. In the past ten days, Smith has engaged with the press and consented to the revelation of his identity. A call between undersigned counsel and the Branding Iron publication at UW revealed that Smith consented to his identification in the March 30, 2023 story. In addition, the first news article in early October about Mr. Smith's membership in Kappa Kappa Gamma was created with his involvement. The girls, as Plaintiffs, have not done so. Moreover, without their consent their sorority house down to the house number was doxed online.
Some of the women in this matter sleep with bars over their doors. To say that Plaintiffs "cower behind an anonymity shield" is untrue and does not reflect this Court's usual temperate approach to difficult issues. The Complaint was verified, as it must be. While the Federal Rules of Civil Procedure contains the presumption that, "Every action shall be prosecuted in the name of the real party in interest," exigent circumstances warrant the request that the Jane Does at least, remain confidential to the public.
Here's what I wrote about risk-of-physical-harm arguments for pseudonymity in my The Law of Pseudonymous Litigationarticle (see the article for citations, of which there are very many):
Courts generally allow pseudonymity if there is "reasonable[]" "fear[]" of "retaliatory physical … harm to the requesting party or even more critically, to innocent non-parties," which may be considered in light of "the anonymous party's vulnerability to such retaliation." Express threats of violence would likely qualify, as would specific past incidents of violence or vandalism. Lack of such express threats or incidents—or at least lack of highly plausible predictions of possible future violence—will usually count against pseudonymity.
Risk of harm in a foreign country or from a foreign government would also qualify. "[R]easonable[] … fears" of other kinds of "extraordinary retaliation," such as "deportation, arrest, and imprisonment" in a foreign country, may also qualify, though perhaps mere deportation might not. So might "harassment or other form of retaliation" against a prisoner by guards.
Courts also generally require that the risk of threatened violence flow from the revelation of the party's name in the litigation, not from other factors (such as the party already being known to the people who might want to attack him). And of course, the risk must come from the public revelation: If the risk is that, for instance, the defendant will retaliate against the plaintiff, that can't be avoided by pseudonymity, because the defendant would need to know the plaintiff's identity in order to defend the case even if the plaintiff is allowed to sue pseudonymously (unless perhaps the case involves purely legal questions).
On the other hand, occasionally courts are more open to speculation about possible violent retaliation; consider this, for instance, from a case where a student sued his university based on what he said was an unfair investigation of domestic violence claims levied by a classmate:
The court thinks that Doe's identification may put him at risk for physical or mental harm by persons who know that he has been found responsible for domestic violence against Roe. Moreover, his identification has the potential to lead persons—especially those who are associated with Doe and Roe or know of Doe and Roe—to identify Roe as his accuser and identify other students who were involved in the investigative process. It is also likely that identification of Roe could result in her facing a risk of harm.
Likewise, one court has allowed such speculation in allowing a police officer accused of misconduct to sue pseudonymously for libel, though that was reversed on appeal, and another appellate court had taken the opposite view. As with many such tests that turn on speculation and predictions, much depends on the instincts of each judge, and the judge's reactions to the factual allegations.
And here's what I wrote about the broader argument that cases involving controversial beliefs on religious and political matters should be litigated pseudonymously:
[a.] Religious Beliefs
An oft-quoted 1981 Fifth Circuit decision, Doe v. Stegall, allowed plaintiffs to pseudonymously challenge public school prayers, partly on the grounds that "the Does complain of public manifestations of religious belief; religion is perhaps the quintessentially private matter…. [T]he Does have, by filing suit, made revelations about their personal beliefs and practices that are shown to have invited an opprobrium analogous to the infamy associated with criminal behavior." Some other cases have likewise allowed Establishment Clause challenges to religiously controversial policies to proceed pseudonymously, especially where there was a risk of public hostility to child plaintiffs, though others have disagreed. Stegall relied on the threat of "violent reprisals," not just social opprobrium, but other courts haven't cited such threats of physical harm.
Yet courts have nearly uniformly refused to let plaintiffs be pseudonymous simply to avoid revealing their membership in minority religions, such as Judaism and Islam, with only one clear exception that I have seen. Indeed, were it otherwise, religious discrimination lawsuits brought by religious minorities could nearly always be litigated pseudonymously. It thus appears that mere disclosure of religious beliefs is not sufficient to justify pseudonymity—there must be a combination of both the plaintiff's religious beliefs and expected public hostility to the specific remedy that the plaintiff is seeking.
[b.] Political Beliefs
Likewise, a recent case rejected pseudonymity where plaintiff argued that his challenge to Twitter policies might draw attacks on his children from "unbalanced people in the world" who "hate President Trump supporters." On the other hand, some other cases allowed challenges to vaccine mandates to proceed pseudonymously, because of concern about public hostility to such challenges. And another case allowed pseudonymity based on the speaker's perceived political views: a case where university students sued over having been disciplined for engaging in actions that were supposedly "racist, anti-Semitic, homophobic, sexist, and hostile to people with disabilities"; query whether this may have stemmed from the more general trend of allowing challenges to university discipline to be pseudonymous, as a means of protecting the accused students' reputations.
Some other cases that have allowed pseudonymity in politically controversial contexts have focused on the claims being legal rather than factual challenges, so that naming the parties was seen as less likely to be valuable. And even in such controversial contexts, pseudonymity is not always allowed.
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