The women suing the Mountain West Conference over its inclusion of a transgender player on the San Jose State University women’s volleyball team are asking a higher court to de-roster that player before the championship playoffs, which begin Wednesday.
They filed the emergency request Monday after a Colorado judge said Blaire Fleming, a San Jose outside hitter and top scorer in the conference, can play at the tournament.
Fleming is transgender, according to multiple sworn statements by SJSU team co-captain Brooke Slusser.
Slusser has joined with 10 other current and former collegiate volleyball players, and with a SJSU associate coach who spoke out against Fleming’s inclusion, in suing the Mountain West Conference. The 12 women – including three University of Wyoming volleyball players – are asking the court system to remove Fleming and to reverse the forfeit losses that five teams have taken in boycotting games against SJSU.
U.S. District Court Judge S. Kato Crews, of Colorado, declined to do that Monday and said the women are likely to lose their lawsuit altogether.
They are now appealing to the 10th Circuit Court of Appeals.
“We respectfully disagree with the decision of the Colorado District Court and have filed an emergency appeal with the Tenth Circuit Court of Appeals," wrote the women's attorney, Bill Bock, in a Tuesday email to Cowboy State Daily. "It is shameful that the administrators at the Mountain West Conference and the NCAA are unwilling to do their jobs which is solely to protect fair competition and the safety of athletes who compete in college sports. However, because Mountain West Conference Commissioner Gloria Nevarez and NCAA President Charlie Baker won’t do their jobs and are apparently afraid to stand up for the rights of women student-athletes, we are forced to ask the federal courts to do their jobs for them.”
Bock's appellate filing says Crews "clearly erred in holding that (federal education law) Title IX protects men who identify as transgender just as much if not more than biological women."
The filing says males may have five times the testosterone of women and a capacity to strike the ball with 82% more impact.
“Title IX is clear,” says the filing. “It forbids treating women worse than men.”
Viewpoint Discrimination
Much of this lawsuit hinges on a transgender participation policy the Mountain West Conference adopted internally in August of 2022, then made public Sept. 27 of this year just as universities started boycotting games against SJSU.
The boycotts followed news reports, beginning this spring, that Fleming is transgender.
The policy forces schools that refuse to play a team with a transgender player to take those cancellations as forfeit losses – rather than mere cancellations for safety reasons. It also says universities don’t have to identify their transgender players to other schools.
Bock’s filing argues that the policy violates the First Amendment by singling out a specific kind of boycott for punishment. That’s viewpoint discrimination, the filing alleges.
Crews had struck down the women’s request to de-roster Fleming in part because by his reckoning, the women delayed too long in filing their lawsuit. The transgender participation policy became public Sept. 27; the women didn’t sue until Nov. 13 – two weeks before the championship tournament.
They were trying to make him shake up the team standings and tournament on the “eleventh hour,” Crews wrote in his order. He noted that the universities themselves did not ask MWC to reverse its transgender participation policy so they wouldn't suffer losses.
The women's actions shouldn't be seen as needless delay due to any failure to protest on the part of their schools, their filing counters.
Suing For Discrimination When It’s Not The Government
The women argue in their appeal filing that, contrary to MWC's arguments, they can sue the Mountain West Conference for discrimination even though MWC is not a “state actor.” That’s because MWC is “pervasively entwined in a symbiotic relationship” with public schools that are arms of their respective states, says the women’s filing.
MWC also exerts control over the state- and federally-funded schools, the plaintiffs note.
SJSU is seeded no. 2 heading into Wednesday's tournament, after top-ranking team Colorado State University.
Clair McFarland can be reached at clair@cowboystatedaily.com.
