Three University of Wyoming volleyball players and a handful of other women who sued the Mountain West Conference over a transgender player’s inclusion on a women’s volleyball team last November are now asking a Colorado federal judge to recuse himself.
The women say that by requiring them to call a female-identifying transgender person “she,” U.S. District Court Judge Kato Crews has shown that he’s already made up his mind about their case.
The women’s lawsuit revolves around whether the Mountain West Conference (MWC) and San Jose State University (SJSU) were right to let a transgender player compete on the school’s women’s volleyball team last fall.
Blaire Fleming’s inclusion on the SJSU team prompted teams to boycott and forfeit games with the Spartans and ended with SJSU taking second place at the conference tournament.
It also sparked a lawsuit in the U.S. District Court for Colorado, where three University of Wyoming players, other female student-athletes from around the conference and a female SJSU coach sued. They allege that Fleming’s inclusion on the SJSU team runs afoul of Title IX of the federal education laws — which forbid sex discrimination – and the equal protection clause.
“This case concerns whether Blaire Fleming is a man or a woman,” wrote William Bock III, attorney for the women suing in a Tuesday challenge to Crews’ adoption of a transgender-pronoun usage rule for court proceedings.
The motion also asks Crews to recuse himself from the case.
“An impartial forum cannot exist where the Court has so forcefully signaled the Courts’ personal views on sex and gender identity that the Court is willing to use its contempt power to enforce those views,” wrote Bock.
He was referring to a court standard Crews adopted Dec. 9 for all civil actions pending in his court.
The rule commands people to use others’ preferred pronouns or risk being charged with contempt, says the motion. Three other judges adopted the standard at that time as well.
Bock theorized that a passive-voice provision in that rule may extend part of it to witnesses, reporters, spectators and others – not just attorneys and case parties.
Bock’s motion refers to Fleming as “he,” while an earlier order by Crews uses female pronouns for the player.
The motion reasons that if Crews is going to call Fleming “she” and “her” while requiring others to do the same, then Crews must have made up his mind about the key issue in the case.
First Amendment
Bock’s motion also says the pronoun rule violates free-speech rights by limiting what people can say based on their viewpoint and the content of their speech; by being too vague to understand, and by placing a prior restraint on speech.
While the rule seeks to create a courtroom where everyone involved in a case feels “welcome and respected,” Bock’s motion alleges that’s not enough to save it from being found in violation of the First Amendment.
Court is often an adversarial, rather than a welcoming place, he added.
“‘Welcome’ and ‘respect’ could likely never be (an excuse for a new rule) in the context of court proceedings,” wrote Bock. “Does a criminal defendant standing trial feel welcomed by the Court? Does a corporate executive subpoenaed to testify against a colleague feel welcome and respected?”
Bock drew an analogy in his motion, asking how pro-choice plaintiffs would feel if a judge required them to use the terms “baby” and “human being” instead of fetus. Then he theorized that they’d feel their case was pre-judged.
Oppose
A note Bock attached beneath his motion says Wesley Powell and Helen White, attorneys for the groups the women are suing, told Bock they didn’t have a position on his motion to rescind the court rule.
But those attorneys do oppose Bock’s motion for Crews to recuse himself, says the filing.
Neither Powell nor White responded by publication time to Thursday emails requesting comment. They had not filed an opposition in the case as of Friday afternoon.
Clair McFarland can be reached at clair@cowboystatedaily.com.
