Although a handful of women now suing the Mountain West Conference claim its rule on transgender sports participation was invented seven weeks ago to shut down a multi-school boycott of a team with a transgender player, the conference told Cowboy State Daily on Thursday that the rule was adopted two years ago and “has not changed.”
The Mountain West Conference did not go into greater detail about the policy nor give Cowboy State Daily a copy of the meeting minutes from the policy’s genesis as requested.
“The Mountain West Conference prioritizes the best interests of our student-athletes and takes great care to adhere to NCAA and MW policies,” says a Thursday email from the conference. “While we are unable to comment on the pending litigation of this particular situation, we take seriously all concerns of student-athlete welfare and fairness."
The transgender participation policy says any Mountain West Conference team that cancels a game against a team with a transgender player must take a forfeit loss – as opposed to a mere cancellation as when teams have a safety concern like inclement weather. It also says that institutions with a transgender student-athlete don’t have to inform other institutions that it is rostering a transgender student-athlete.
A lawsuit 12 people – including three University of Wyoming women’s volleyball players – filed Wednesday claims that a MWC official contrived and/or stealth-edited the policy on Sept. 27, just as the second of five universities announced its cancellation of a game against San Jose State University.
Sept. 27 was also the date on which Mountain West Conference Deputy Commissioner Bret Gilliland sent a letter to conference schools, pointing them to the policy and saying it was passed in August of 2022.
Five teams now have announced forfeitures of games against SJSU after news broke that one of the California team’s best players, outside hitter Blaire Fleming, is transgender.
Buckle Up
Wednesday’s lawsuit unfurls a multi-state saga of female student-athletes debating whether to face off with Fleming, Fleming’s associate coach reporting alleged underhanded activity by Fleming, and of Fleming’s own teammates raising safety and privacy concerns at their own university.
The lawsuit complaint also asks a federal judge in Colorado, where the suit is filed, to declare Fleming ineligible to play under Title IX, block SJSU from bringing Fleming to the Nov. 27-30 MWC tournament in Las Vegas, and to bar MWC from using its transgender participation policy to heap losses on the boycotting teams.
The women suing are University of Wyoming volleyball players Macey Boggs, Sierra Grizzle and Jordan Sandy; Boise State University players Katelyn and Kiersten Van Kirk; Utah State University co-captain Kaylie Ray; University of Nevada, Reno, players Nicanora Clarke and Sia Liilii; current and former SJSU players Brooke Slusser, Alyssa Sugai and Elle Patterson; and SJSU associate head coach Melissa Batie-Smoose.
They’re suing the MWC and its commissioner Gloria Nevarez, the board that oversees SJSU, SJSU’s senior associate athletic director for student-athlete wellness and leadership, Laura Alexander; SJSU’s senior director of media relations Michelle McDonald Smith; and SJSU head women’s volleyball coach Todd Kress.
The 132-page lawsuit complaint opens with dissertations on MWC rule formation practices and on the physical athletic advantages men pose over women.
Then it tilts into the inner workings of the San Jose team.
Giving Up The Sport
Former SJSU coach Trent Kersten recruited Fleming ahead of the 2022 season from Coastal Carolina University; Fleming was given a full scholarship, Independent Council on Women’s Sports (ICONS) attorney Bill Bock wrote in the complaint. Bock is also representing the plaintiffs.
Alyssa Sugai transferred to SJSU as a walk-on in 2021. By the spring of 2022, Sugai was considering transferring to another school so she could win a scholarship. Her coaches, including Kersten knew it was a financial hardship for her to pay full tuition as a walk-on, Bock wrote.
But she banked on getting a scholarship, worked hard, and hoped for lots of playing time in 2022, the complaint says. That was also when coaches introduced Fleming to the team.
“No member of the SJSU coaching staff or athletic department… informed Sugai that Fleming was a trans-identifying male at the initial team meetings in July 2022 or any time while she was on the SJSU team roster,” Bock wrote.
Sugai and Fleming both played right-side hitter at that time. They competed for the starting position, but Fleming always outperformed Sugai, no matter how many hours Sugai added to her workout, the complaint says.
The coach made Fleming the starting right-side hitter that September since Fleming was more physical than Sugai.
Sugai didn’t receive the scholarship offer that year. She considered seeking a scholarship from another school, but she’d lost out on too much playing time due to Fleming’s success, says the complaint.
Depressed and defeated, she gave up playing volleyball after that season, says Sugai’s account.
One year later, Sugai heard a rumor on campus that Fleming was transgender. She became angry as she reflected on her feelings of inadequacy and regret, says the complaint.
Sugai’s account also says the San Jose women would fully disrobe in front of Fleming in the locker room, while not knowing Fleming was transgender.
A Scholarship Down
Kress and Batie-Smoose went to coach SJSU after the 2022 season. They then recruited freshman Elle Patterson to play outside hitter for the 2023 season on a full scholarship, says the complaint.
Batie-Smoose had no idea during that time that Fleming was transgender, the complaint continues, adding that Batie-Smoose observed during one game: “Wow! She went up to block a ball and she jumps like a Dude and hangs like a Dude! Crazy!”
Kress told Patterson in 2023 that Patterson would not be receiving a full scholarship that year but would after that, says the suit. Patterson decided to stay at SJSU anyway to receive scholarships in the subsequent years. She received much more playing time than Fleming in 2023 because Fleming was reported to have a hand injury, the complaint says. But Fleming won the scholarship after that anyway, the document adds.
Roomies
Brooke Slusser, now SJSU co-captain, transferred from the University of Alabama to San Jose in 2023, and shared a home with four other volleyball team members; one of those was Fleming.
At no point did Kress or anyone else let her know Fleming was male, the complaint says.
Kress or the athletic department would also assign Slusser to room with Fleming on road trips, at Fleming’s request, Bock wrote.
“Due to her personal convictions and religious beliefs, Slusser would not have roomed with Fleming or changed clothes in front of Fleming if Slusser had known Fleming was male,” the suit adds.
Slusser heard the transgender rumor around the same time Sugai did, in 2023, when two students referred to Fleming as a “guy.”
Slusser considered this through the rest of that year. In April of 2024, she noticed an online news story that called Fleming a male.
Fleming and another student invited Slusser out for ice cream that day.
Fleming told Slusser that Fleming was born male, the complaint says.
Slusser asked why Fleming hadn’t said anything before. Fleming said there never seemed to be a good time to bring it up, and Fleming feared losing Slusser’s friendship over it, Bock related from that conversation.
The complaint says Slusser responded that she didn’t want Fleming to be bullied, but she was uncomfortable with Fleming continuing to play for the team because of the safety and fairness risks.
Gather ‘Round
That was also the month SJSU officials, including Kress and Director of Media Relations Michelle Smith McDonald, convened a meeting with the volleyball players. They told the women not to talk about Fleming’s sex with anyone outside the team, and that things could go badly for team members if they spoke publicly about it, the complaint says.
They couldn’t speak out about their thoughts regarding this situation.
“Criticism of Fleming or his participation on the SJSU Team would indicate bigotry and harm their reputation,” Bock related from that conversation, “and could subject them to discipline or loss of their scholarship and could be considered a violation of school policies or state law.
But Slusser did bring her concerns to Kress, along with fellow co-captain Brooke Bryant.
That angered Kress, the complaint alleges.
Faster Now
As the 2024 season opened, Fleming’s play was on fire, the suit says. The player was hitting with more force than in 2023 and harder than Batie-Smoose had ever seen a woman hit the ball, it adds.
Bock wrote that Slusser and her teammates have been worried about getting hit in the head with one of Fleming’s spikes.
At a Sept. 7 game against the University of Delaware, a SJSU freshman set up Fleming for a spike, and Fleming “smashed the ball into the face of a woman on the University of Delaware team’s back line, knocking (her) to the ground,” Bock wrote.
The freshman came to Slusser days later, in tears, asking whether she’d done the right thing to set the ball for Fleming, the suit adds.
The Rule
On Sept. 13, the Mountain West Conference published its handbook for the year. The plaintiffs do not believe the current transgender participation policy was in the publication at that time.
On Sept. 14, Southern Utah University withdrew from a scheduled match against SJSU.
Thirteen days later, “the MWC Commissioner’s staff made under-the-radar, non-publicized changes to the MWC Handbook that added – or altered – a MWC transgender participation policy,” the suit alleges.
Metadata associated with the online handbook shows the rule was inserted into it around noon that day, the complaint adds.
The University of Wyoming’s delegate to the MWC board is UW President Edward Seidel. Asked Thursday via his spokesman to comment on whether he remembers the passage of the policy in August of 2022 (the genesis date MWC claims) or any time after, Seidel declined to comment.
The UW spokesman cited the pending litigation.
Joining Riley Gaines On Stuff
Slusser petitioned a federal court Sept. 23 to let her sue the NCAA along with Riley Gaines and other women’s-rights activists. She brought allegations of unfairness over Fleming’s inclusion to the suit.
“Up to that time,” wrote Bock, “some members of the public had been harshly critical of the girls on the SJSU Team who were perceived to be intentionally benefitting from the powerful attacks of Fleming which other women’s teams could not hope to match.”
But, the attorney continued, “the online critics of Slusser and her teammates did not know that the girls on the SJSU team were fighting their own behind-the-scenes battle for women’s rights.”
Things grew tense on the San Jose campus after that, says Bock’s filing.
The complaint claims that Kress has stopped speaking to Slusser, has stopped coaching her and has sought to denigrate her while speaking with the other players; that he’s spoken to a lawyer about getting Slusser off the team; that he’s told others he’s filed Title IX complaints against her; and that he’s failed to protect Slusser from potential physical threats.
Kress did not respond to a Thursday email request for comment.
SJSU sent a statement to Cowboy State Daily Thursday saying the school has not been officially served with the lawsuit and won’t comment at this time.
Meanwhile, In Utah
Utah State University team co-captain Kaylie Ray and her teammates heard that Southern Utah University had backed out of its SJSU game early in the 2024 season.
Ray and many of her teammates worried about concussions and injuries, the complaint says.
Next, the women heard that Boise State University was cancelling its game against SJSU.
UW would later announce the forfeiture of its first SJSU match on Oct. 1.
The complaint claims that the Utah State head women’s volleyball coach stated flatly and emphatically, “I don’t know how you guys feel about this, but we will be playing against San Jose State; Blaire is not that talented.”
Utah State head coach Rob Neilson told Cowboy State Daily on Thursday that the legal complaint’s characterization of that meeting is not correct, that he never tried to force his players’ will on this issue – and that doing so would “go against everything I stand for as a coach.”
Rather, Neilson told the team he was happy to speak with any player that felt strongly about the subject, according to his Thursday email. He mentioned that the San Jose players and Fleming were probably “going through it the hardest,” after the national controversy broke.
He reminded the team they’d played Fleming four times in the 2022 and 2023 seasons, with a record of 3-1 including the 2022 championship match – and no player was hurt in any of those matches.
“So yes, my position at the time was, that if it were up to me, we would play, and win, as we had in the past two seasons,” wrote Neilson in his email.
He also told the team that Fleming was not the most physically gifted player in the conference. Fleming jumps high and hits hard, but isn’t that efficient and was only hitting .190 in conference play. The most skilled players in the conference are hitting well above .250, he added.
Without counting its forfeit wins, San Jose would have a 5-5 conference record, “so they are a good team, but not dominant,” Neilson wrote.
It was after extensive conversation with administration, staff and the school president that the players voted – not unanimously – to forfeit the match, he said in the email.
Neilson applauds and supports their stance, he wrote.
The coach added that the players took another vote on their own, which was unanimous this time, that they’ll take on San Jose at the MWC tournament if they get a chance. They are “uninterested in giving up additional opportunities to play only to further reiterate our position on the (transgender play) rule,” he wrote. “We made our stance clear on the NCAA rule, now it’s time to win a championship.”
‘It Will Not Be Good For Her’
Still undefeated at the time, the players of San Jose went to Fort Collins, Colorado, on Oct. 2, to face off with Colorado State University (CSU) in what would become their first loss of the season.
That night Slusser’s teammate received an Instagram message in which a new contact wrote “please distance yourself from brooke. tomorrow at the game, it will not be good for her.”
A screenshot of the warning is in the court file with the complaint.
The message worried the women on the team. Extra police presence was called to the game.
Batie-Smoose soon realized that Fleming was missing from the hotel.
“In violation of team rules Fleming had snuck out of the team hotel,” the lawsuit continues.
At the CSU game the next day, Fleming’s play was erratic. The player didn’t block as directed.
Batie-Smoose told Kress it looked like Fleming was trying to throw the game.
Fleming had more errors than anyone on the court and would gently tap the ball to the opposite hitter on the CSU team. The hitter then would spike the ball at Slusser, the complaint says.
On at least one occasion after one of these exchanges, the CSU player blew a kiss toward Fleming, wrote Bock.
The CSU player did not respond by publication time to a Facebook message request for comment.
A Confession
Back in San Jose, a player confessed to her teammates that she, Fleming, and one more athlete had snuck out of the hotel to meet with the CSU player, and that Fleming had agreed to leave the center court open so the CSU player could “blast” Slusser in the face with the ball, according to the lawsuit complaint.
At her teammates’ urging, the player then took her confession, tearfully, to the team coaches, Bock added.
Kress told Batie-Smoose he didn’t believe the woman’s story, and thought she made it up to avoid getting in trouble for sneaking out, according to Batie-Smoose’s account.
Neither of the players who allegedly snuck out with Fleming responded by publication time to requests for comment. Fleming has not responded to multiple prior requests for comment and could not be reached Friday.
Batie-Smoose’s account in the complaint says after she filed a Title IX complaint about this incident, she was suspended.
‘Littered With Lies’
In a Nov. 2 ESPN story, Kress told the outlet that Batie-Smoose’s claims about the cross-team collusion were “littered with lies.”
Kress confirmed that a SJSU player and CSU player met Oct. 2, but said “no scouting report was shared” to throw the game.
“We didn’t do our scouting report, and no one had their hands on our scouting report until the day of the match,” he told ESPN. The game film didn’t reveal any foul play to him either, and he had heard the players joking about arranging themselves for “freer swings,” he added.
"Both (student-athletes) said that they were shocked that anybody thought anything of it, because it was totally a joke," Kress said. "They were just talking and venting because, you know, they were frustrated with the situation."
That One Team That Went Rogue
As the Oct. 25 scheduled match between the University of Nevada, Reno (UNR), and SJSU approached, nearly all the UNR women decided they would not play.
Their school told the media they were going to play SJSU.
But 16 out of the 17 women’s volleyball team members had voted not to play the California team.
A UNR official told the team that Fleming’s testosterone levels were being tested every week, and that transwomen were at a disadvantage because estrogen makes them tired, says the complaint.
When the official left, the women laughed among themselves that maybe that’s why they’re tired – because of all the estrogen in their bodies, the suit says. But they walked away feeling discouraged despite sharing a laugh, Bock added.
On Oct. 17, the majority of the team dispatched a public statement saying they wouldn’t play and would demand their right to safety and fair competition be upheld. Among all universities’ cancellation statements, theirs marked the first that officially cited a reason why.
UNR released its own statement saying it didn’t back the players on their decision, and that the school would adhere to state laws protecting people from gender identity discrimination.
On Oct. 24, the UNR women played Fresno State, a match that preceded their scheduled game with SJSU.
After the game, two buses waited. One would take them to San Jose and their scheduled upcoming match; the other would take them home to Reno. It was their choice which to board, says the suit.
One student-athlete chose the bus bound for San Jose. The others all chose home, essentially boycotting the game.
Ultimately, someone told the lone player to get on the bus for home, since they couldn’t play San Jose with just one player, says the complaint.
Going To The Playoffs
San Jose State University is scheduled to play the championship tournament in Las Vegas beginning Nov. 27.
The California team is ranked second in the Mountain West Conference, with an 11-5 record for conference play including its forfeiture wins. CSU is ranked first at 12-3.
Wyoming is ranked seventh, with a conference record of 6-9, which includes its two forfeiture losses.
Clair McFarland can be reached at clair@cowboystatedaily.com.
