Women’s volleyball players urge judge to block transgender athlete from upcoming competition

DENVER (CN) — Twelve women’s volleyball players asked a federal judge on Thursday to grant an emergency motion to block a transgender athlete from playing in next week’s Mountain West Conference Volleyball Championship in Las Vegas.

“The evidence points in a single direction: allowing males to play women’s volleyball violates women’s Title IX rights,” the athlete plaintiffs’ attorney William Bock argued Thursday.

San Jose State University recruited Blaire Fleming from Coastal Carolina University’s NCAA Division I team in 2022 with the offer of a full scholarship. Fleming, a transgender woman, played with permission from her athletic director and the Mountain West Conference, though her teammates say they didn’t know her life history.

In 2022, the Mountain West Conference adopted a rule allowing schools to roster transgender athletes at their discretion. The transgender player policy is analogous to the transgender participation policy adopted by the National Collegiate Athletics Association in the Northern District of Georgia.

Upon finding out Fleming was born male, some conference teams refused to play San Jose State, opting instead to take a loss.

Joined by 11 other women’s volleyball players, San Jose State University athlete Brooke Slusser sued the Mountain West Conference and California State University’s board of trustees on Nov. 13, claiming violations of the First and 14th Amendments as well as Title IX of the Education Amendments of 1972.

Bock, who practices with the Indianapolis firm Kroger Gardis, argued that although conference rules gave individual teams the right to roster transgender players, the rules denied teams the opportunity to opt out of playing against transgender athletes, since doing so resulted in an automatic loss.

“We’re here with no explanation of a rationale that satisfies heightened scrutiny,” Bock told U.S. District Judge Kato Crews, a Joe Biden appointee. “Fairness of game competition and athlete safety cut against those policies and equal protection.”

Attorneys representing the Mountain West Conference argued that because the nonprofit conference doesn’t accept federal funding, it is not beholden to Title IX’s mandates against sex discrimination.

“People may have different views as to whether it’s the right or wrong policy, but it’s only a Title IX issue if the Mountain West receives federal funds and that is not the case,” attorney Wesley Powell of the New York firm Willkie Farr said.

Powell argued the Mountain West Conference collected dues to run the administrative office that facilitates the meeting of universities’ athletes under rules they agreed to and ratified.

“It is not Mountain West that determines whether any institution rosters a transgender athlete, and I think that disposes of many of these issues,” Wesley said. “Far from controlling its members, Mountain West’s job is to bring its members together.”

Crews questioned who made the call when teams withdrew from games.

Bock said the decision to withdraw from matches against San Jose State’s team had been driven by the players, as was the lawsuit.

“The players did everything they could be expected to do. They protested, they went through their university, and they ultimately refused to play,” Bock said. “They did nothing wrong."

Crews listened intently to the arguments in a wood-paneled courtroom on the second floor of the Byron Rogers U.S. Federal Building in Denver. He did not indicate how he would decide the case, but promised a written order in a timely fashion.

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