The Mountain West Conference on Tuesday asked a federal court to leave its collegiate women’s volleyball championship alone, and accused several volleyball players who sued it of manufacturing their own emergency to remove a transgender player from the upcoming tournament.
Twelve women, including one associate coach and two former and nine current collegiate volleyball players, sued the Mountain West Conference, San Jose State University and others last week on claims that their constitutional rights were violated and that they’ve suffered discrimination based on their sex.
The women also asked the U.S. District Court for Colorado to block the Mountain West Conference from allowing a transgender player, Blaire Fleming, to play for San Jose State University in the Nov. 27 women’s volleyball championship tournament. They’ve challenged as discriminatory and contrived the MWC’s transgender participation policy, which forces teams to take a forfeit loss for backing out of games against any team with a transgender player.
The plaintiffs' coalition includes three University of Wyoming volleyball players, as well as players from San Jose, Boise State University, University of Nevada Reno and Utah State University.
In a Tuesday counterargument, the MWC says the women manufactured their own emergency to force the court into acting just days before the tournament, when they could have sued as early as late September.
“Less than two weeks before the beginning of the MWC Championship tournament (the plaintiffs) now attempt to seek ‘emergency’ relief and force this Court to decide important legal (issues) on a highly expedited timetable,” says the MWC’s response, penned by attorney Chad Williams of Davis Graham & Stubbs LLP. “(They) should not be granted such an extraordinary remedy based on the fabricated sense of urgency created by their decision to hold onto their grievances until the eve of this year’s conference tournament.”
Fleming is a top-scoring outside hitter whose team, SJSU, has qualified for the Mountain West Conference championship volleyball tournament, which starts Nov. 27 in in Las Vegas. SJSU has a 12-6 conference record, compared to UW's current record of 6-10.
Two of UW's losses stem from forfeiting games against SJSU.
Boise State University, Southern Utah University, University of Nevada Reno and Utah State University also have taken forfeit losses against San Jose.
The Four Factors
The Mountain West Conference calls the women’s request for a judicial block on its actions a “disfavored” injunction, meaning it would upset the status quo if the judge grants it and therefore falls under tougher legal standards.
If the judge agrees with that characterization, the women would need to show that they’re likely to win their lawsuit altogether, that they’ll suffer irreparable harm if Fleming is allowed to play at the championships and Mountain West’s policy is allowed to stand, that acting in their favor is the fair thing to do and that their request represents the public interest.
The MWC claims they’ve failed to show any of those factors.
Two Years, Though
One of the women’s main arguments is that the Mountain West Conference stealth-edited or contrived its transgender participation policy on Sept. 27 of this year, just as universities were starting to boycott games against San Jose.
For this claim the plaintiffs cite MWC website metadata, which make it appear a conference official was editing that part of the handbook that day, court documents allege.
The MWC says its policy is nothing new and was passed by athletic directors in August 2022.
It included with its filing a heavily redacted copy of the Aug. 23, 2022, virtual meeting minutes of its board of directors.
A note in those minutes says the board adopted a transgender athlete participation policy contingent upon athletic directors’ support. Another note, in brackets, says the athletic directors of the various schools did support the policy as written, confirming it as final.
The minutes as redacted do not reveal which university leaders voted in favor of the policy.
The MWC also filed a scan of an Aug. 25, 2022 email from MWC Deputy Commissioner Bret Gilliland to university leaders, announcing the new transgender participation policy – and a copy of its 2022-23 volleyball handbook, which includes the policy.
State Versus Private Group
The conference also objects to the women’s claims that it violated their constitutional rights or discriminated against them on the basis of sex — by arguing that it is not a state actor.
Under a federal lawsuit mechanism called “Section 1983,” people can sue state agencies or officials for violating their constitutional rights. The MWC is a private, multistate athletics group, whose members happen to be state universities (mostly).
Though its dues come from those state- and federally-funded universities, the MWC claims that is not enough to put it in the “state actor” category and open it to constitutional rights lawsuits.
MWC wages a similar argument against the women’s claims that it has subjected them to sex discrimination, in violation of the federal education law Title IX.
“The MWC dos not receive any federal funding,” says the conference’s filing, adding that Title IX only applies to federally funded groups. “The … Plaintiffs cite zero authority holding that a collegiate athletic conference is subject to Title IX. In fact, controlling caselaw reaches the opposite conclusion.”
And These Other Three Factors
In a much shorter and generalized subsection, the MWC says the women also fall short of the other three factors they may need to prove to keep Fleming out of the tournament.
“Even if the (women) did have a right to reorder the rankings at the end of the season, doing so would simply shift the alleged harm to the other teams and players,” says the filing. “All of the MWC’s member institutions have been aware of the (transgender participation policy) since 2022 and played under the rules of the policy for three seasons.”
Clair McFarland can be reached at clair@cowboystatedaily.com.
