UPDATE: Appeals Court Also Refuses To Kick Trans Player Off Volleyball Team
When a Colorado judge declined to de-roster a transgender player from Wednesday’s Mountain West Conference women’s volleyball championship tournament, a handful of volleyball players asked an appeals court to do it instead.
The 10th Circuit Court of Appeals declined Tuesday to disqualify San Jose State University outside hitter Blaire Fleming, who is widely reported to be transgender, and declined to reverse six forfeit losses some conference teams have taken by boycotting matches against San Jose State.
The ruling upholds an earlier Monday ruling by U.S. District Court Judge S. Kato Crews.
Crews concluded that the 12 women suing the Mountain West Conference waited too long to ask for an injunction and could have sued earlier if they were truly suffering harm.
The 10th Circuit agreed, saying the women could have sued as early as late September, when the Mountain West Conference started punishing their teams with forfeit losses.
But the 10th Circuit’s order indicates that Crews’ other main conclusion — that the women don’t stand much chance of winning their lawsuit at all — is not entirely on point.
“Plaintiffs’ claims appear to present a substantial question and may have merit,” reads the Tuesday order by 10th Circuit Judges Nancy Moritz and Carlos Lucero. “But plaintiffs have not established clear entitlement to relief, and however potentially meritorious, their showing does not rise to the clear level of entitlement under the appropriate standards (for us to de-roster Fleming).”
The women’s attorney, Bill Bock, said they will not appeal the 10th Circuit’s denial to the U.S. Supreme Court.
That is “not a realistic option at this point, just given the timeframe,” said Bock. “So at this point in terms of trying to influence the fairness of the Mountain West Conference tournament, I don’t think there’s anything else that can be done in the courts system.”
Their request to have Fleming made ineligible was first denied Monday. The appeals court upheld that Tuesday, and the tournament starts Wednesday, with San Jose State University going in as the second-seeded team.
Bock was encouraged, however, by the 10th Circuit’s indication that the case poses a “substantial legal question.”
“We think that when this case is ultimately heard on a less expedited timeframe, that we’ll be successful,” he said.
Let’s Play
San Jose State University’s media team sent a campus message from Athletics Director Jeff Konya in a Tuesday email to Cowboy State Daily.
“The team looks forward to starting Mountain West Conference tournament competition on Friday,” says the statement, which vows “an unwavering commitment to the participation, safety and privacy of all students at San José State and ensuring they are able to compete in an inclusive, fair and respectful environment.”
The statement says the school’s athletics administration and staff, and student-athletes, “have navigated this unprecedented situation with Spartan resilience. The fact that they have come to this point of the season as a team standing together on the volleyball court is a testament to their strength and passion for their sport.”
Clair McFarland can be reached at clair@cowboystatedaily.com.
