A Colorado-based federal judge declined Monday to remove a transgender player from the upcoming Mountain West Conference women’s volleyball championship playoffs, and didn’t reverse the six forfeit losses teams have taken by boycotting matches against that player this season.
U.S. District Court Judge S. Kato Crews, of Colorado, issued a 28-page order Monday denying the injunction request of 11 current and former women’s volleyball players, and one associate coach who was suspended after speaking out against San Jose State University having a transgender player on its roster.
The plaintiffs had asked Crews to remove the player, Blaire Fleming, from the championship tournament, which begins Wednesday.
San Jose State University is seeded No. 2 in the Mountain West Conference going into the tournament with a 12-6 conference record.
The plaintiffs also asked the judge to reverse the six losses other teams have taken by forfeiting games against SJSU, after news broke this year that Fleming is transgender; and to rescind a Mountain West Conference rule characterizing those cancellations as forfeit losses.
Crews said he would do none of those things.
“On balance, the equities favor the MWC’s interest in conducting and proceeding with the tournament as planned,” wrote Crews, adding that the women suing “have failed to meet their burden to show irreparable harm, a likelihood of success on the merits, or that the balance of harms or equities is in their favor.”
Crews’ primary issue with their request is that it came Nov. 15, or 12 days before the tournament. Too late, by the judge’s standards.
“The tournament is set to begin in mere days, and it has been scheduled to occur for 10 months,” he wrote.
The rule requiring teams to take a forfeit loss for boycotting play against a transgender player has been in place since 2022 as an internal rule, the judge concluded from the case evidence. It was made public Sept. 27, 2024, he added.
None of the universities that have taken losses disputed the rule for those two years, the judge wrote. Also, none of the plaintiffs sued when news of Fleming’s transgender status first broke in the spring 2024, or first became a controversy in September.
“Delay in seeking (injunctive) relief cuts against finding (these women have suffered) irreparable injury,” Crews wrote. “And that’s a problem for the movants here. The Court finds their delay in filing this action and seeking emergency relief related to the MWC Tournament weakens their arguments.”
Unlikely To Succeed
Crews refuted other parts of the plaintiffs’ request, saying the women aren’t likely to succeed in showing the Mountain West Conference subjected them to sex discrimination.
He deferred to the U.S. Supreme Court’s finding in the 2020 case Bostock v. Clayton County. In that one, the high court concluded that under a federal employment law, Title VII, employers who discriminate against gay or transgender employees are committing sex discrimination.
Courts have disagreed and vacillated on whether that ruling naturally applies to the ban on sex discrimination found in a federal education law, Title IX.
Citing other courts and the appellate circuit that oversees his court, Crews concludes that it does.
The plaintiffs’ “Title IX theory raised in this case directly conflicts with Title IX’s prohibition on discrimination against trans individuals,” wrote Crews, adding there’s an “inextricable relationship between transgender status and sex.”
And The Boycott
Lastly, Crews said the women are unlikely to succeed on their claims that MWC violated their First Amendment right to protest.
He noted that the universities that took forfeit losses did so without protest, except for Utah State University, which joined the women’s lawsuit as an intervenor last week.
California School Delighted
Both San Jose State University and California State University (whose board oversees SJSU) sent statements Monday to Cowboy State Daily applauding the court’s decision.
“San José State University will continue to support its student-athletes and reject discrimination in all forms,” says SJSU’s statement. “All San José State University student-athletes are eligible to participate in their sports under NCAA and Mountain West Conference rules. We are gratified that the Court rejected an eleventh-hour attempt to change those rules. Our team looks forward to competing in the Mountain West volleyball tournament this week.”
CSU’s statement says the school “fully supports its student-athletes and their right to play and compete in the sports they love, and “does not tolerate discrimination of any kind, on or off the court.
“We applaud the Court’s decision,” the statement continues, “and will be cheering on the San José State University volleyball team as they continue to compete for a championship in the Mountain West Conference tournament.”
The plaintiffs’ attorney Bill Bock did not immediately respond to requests for comment.
Clair McFarland can be reached at clair@cowboystatedaily.com.
