You’ve probably been reading about the tangle over a transgender player on the San Jose State University women’s volleyball team. Some competitors, former players, and even one of her teammates and a now-suspended San Jose State associate coach have tried to keep her from competing in this week’s Mountain West Conference tournament. They filed a lawsuit and sought an emergency injunction barring her from playing, but a federal judge Monday denied their request, and Tuesday an appeals court did the same. Here’s all the info about the controversy and the suit.
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It’s funded by the Independent Council on Women’s Sports, which describes its mission as “Elevating and empowering female athletes. Protecting safety, fairness and opportunity for girls and women.” But its mission is really anti-transgender.
The trans woman player is in her third season on the San Jose State Spartans team, but her presence became publicly controversial only this year. She has been outed by anti-trans media, first in April by a site called Reddux, but since she has not come out, The Advocate is not naming her, nor is it linking to any of those sites. Also, San Jose State has not confirmed that there is a trans woman on the volleyball team. Several women’s volleyball teams have forfeited games against the Spartans this season because they objected to competing against a trans player.
It's not clear if the outing influenced the lawsuit or if the plaintiffs may have been emboldened by Donald Trump’s attacks on trans woman athletes; he has promised to “just ban” them. On the campaign trail in Georgia in October, he mentioned a viral video, supposedly of the San Jose State trans player spiking the ball, saying, “I never saw a ball hit so hard.” Other Republican politicians have joined in the attacks, with several U.S. senators and representatives signing a letter to Mountain West's commissioner, Gloria Nevarez, seeking to have the trans woman barred from the team.
At any rate, the plaintiffs — athletes from other Mountain West teams, former Spartans players, current Spartans co-captain Brooke Slusser, and suspended associate head coach Melissa Batie-Smoose — filed the suit against the conference, Nevarez, and others in U.S. District Court in Colorado November 13 (the conference is headquartered in Colorado). They claimed that the presence of the trans player amounted to discrimination against cisgender women. Their suit also sought to have losses due to the forfeits wiped from those teams’ records.
They are represented by Indianapolis-based attorney William Bock, who has brought other cases against trans women in sports. In February, he resigned from the National Collegiate Athletic Association’s Council on Infractions, citing his objections to NCAA policies permitting trans women to play on women’s teams if they meet the standards set by each sport’s governing body.
Mariusz S. Jurgielewicz/shutterstock
In the district court, Judge S. Kato Crews, appointed by President Joe Biden, denied the emergency injunction request. He said the plaintiffs could have filed it much sooner, as they long had been aware of the trans player’s presence. “The Court finds the movants’ delay was not reasonable, there is no evidence to suggest they were precluded from seeking emergency relief earlier, and the rush to litigate these complex issues now over a mandatory injunction places a heavy lift on the MWC at the eleventh hour,” he wrote.
He also said the plaintiffs were unlikely to win the overall suit, as courts have established that Title IX of the Education Amendments of 1972, banning sex discrimination in education, and the Fourteenth Amendment to the U.S. Constitution, guaranteeing equal protection under the law, ban anti-trans discrimination. That is the Biden administration’s interpretation of Title IX as well, but the incoming Trump administration will undoubtedly have a different one.
Crews further looked to the Supreme Court’s ruling in Bostock v. Clayton County in 2020, which found that Title VII of the Civil Rights Act of 1964, in banning sex discrimination in employment, bans discrimination based on sexual orientation or gender identity. “Noting that Title VII prohibits employers from taking certain action ‘because of sex,’ [the Supreme Court] held ‘it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,’” he wrote.
While the Bostock ruling specifically addressed job discrimination, it has been cited regarding discrimination in other aspects of life, and on Biden's first day as president, he ordered all federal government departments to follow its findings.
A two-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed with Crews’s denial of the injunction, saying the plaintiffs had not shown they would suffer irreparable harm if it wasn’t granted. However, the 10th Circuit appeared more sympathetic to their arguments. “The appeals court said the plaintiffs’ ‘claims appear to present a substantial question and may have merit,’ but they have not made a clear case for emergency relief,” the Associated Press reports.
After Crews’s ruling, San Jose State issued this statement: “All San Jose 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.”
The Mountain West Conference expressed satisfaction with the ruling and said its policies align with those of the NCAA and USA Volleyball, the sport’s governing body. USA Volleyball requires trans women to have undergone at least a year of testosterone suppression before joining women’s teams. And San Jose State is in California, which has no law restricting trans girls and women in school sports.
San Jose State Athletics Director Jeff Konya addressed students Tuesday. The university “maintains an unwavering commitment to the participation, safety and privacy of all students at San Jose State and ensuring they are able to compete in an inclusive, fair and respectful environment,” he said, according to the AP.
He praised the volleyball team, saying, “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.”
Bock had a different take. “Plaintiffs look forward to ultimately receiving justice in this case when they prove these legal violations in court and to the day when men are no longer allowed to harm women and wreak havoc in women’s sport,” he said in a statement.
Artur Didyk/shutterstock
While the lawsuit may ultimately go to a full trial, right now the San Jose State team is concerned with the Mountain West tournament, which starts Wednesday in Las Vegas. San Jose State is scheduled to play Friday against Wednesday’s winner of a game between Boise State and Utah State, both of which forfeited games against San Jose State during the regular season. The two teams with the best regular season records — Colorado State, the first, and San Jose State, next — automatically go to the semifinals. The winners of the semifinals will play each other Saturday, and the winner of that match will go to the NCAA Division I tournament in December.
USA Today columnist Nancy Armour praised Crews for standing up to “transphobic hysteria.” She pointed out that the trans player has been on the team since 2022, and no one was harmed by her presence. And no one objected to her participation until this year.
“Whether that’s because no one realized she’s transgender [as some have claimed] or it was deemed inconsequential are two sides of the same coin,” Armour wrote. “So what changed? Other than teammate Brooke Slusser and the other grifters deciding that demonizing a young woman would get them a spot on Fox News?”
Lia Thomas, a trans woman who won a national championship while on the University of Pennsylvania’s women’s swim team, said she sympathized with the San Jose State player and related to feeling of being under a microscope. “It can be just extremely invasive and dehumanizing,” Thomas told ESPN. “And it’s in a way I think very few people ever experience. To have my own personal identity and personhood turned into a culture war talking point just totally takes all my humanity away. It can be very difficult to keep trying to persevere through that.”
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