Judge refuses to bench trans volleyball player from Mountain West playoffs, cites Biden-Harris admin’s changes to Title IX

Judge S. Kato Crews, a Biden appointee, wrote in his ruling that the plaintiffs "have failed to meet their burden to show irreparable harm, a likelihood of success on the merits, or that the balance of harms or equities is in their favor." The lawsuit was filed by female volleyball athletes across the conference and a fired assistant coach from San Jose State ahead of the MWC's championship, which is set to start on Wednesday. The first game San Jose State will play in the championship is against the winner of Wednesday's game between Boise State and Utah State University.

He wrote that the requested emergency injunction "alters the status quo because SJSU’s alleged trans teammate has been on its roster since 2022 and throughout the 2024 season, and because the TPP has been in effect (whether or not posted publicly) since August of 2022." The TPP (Transgender Participation Policy) states in part that if a school team in the Mountain West Conference (MWC) refuses to play against another team in the conference which has a transgender player, their refusal to play will be marked as a forfeiture and will be issued a loss for the game.

The MWC Board of Directors adopted the TPP in August 2022, Crews wrote, and the TPP was included in the 2022 Mountain West Volleyball Game Management Handbook as an appendix, Crews said in the ruling. That handbook is distributed to coaches and administrators. The TPP was included in the Game Management Handbook in 2023 and 2024, and on September 27, 2024, the MWC appended the handbook available on its website to include the TPP.

Crews wrote, “Until the filing of this lawsuit, there was no dispute between the parties over the applicability or enforceability of the TPP. The evidence before the Court is that the MWC member institutions, including Plaintiff-Intervenor USU, approved and ratified the TPP in 2022. Concerning SJSU’s alleged trans teammate, she has been a member of the team since the 2022 season and has played on the team each season since. It was not until the spring of 2024, at the earliest, that questions arose from Plaintiffs regarding her gender identity."

To be issued a preliminary injunction, a plaintiff must show "probable irreparable harm," Crews noted. He said that the plaintiffs’ "delay in filing this action and seeking emergency relief related to the MWC Tournament weakens their arguments regarding irreparable harm."

"It makes little difference that the MWC did not publish the TPP publicly until September 2024, or that the Moving Plaintiffs (mostly student athletes) may have been unaware of the TPP until that time. The MWC’s eventual public posting of the TPP did not render its 2022 internal enactment and application to its member institutions any less valid," Crews wrote, adding that "even when giving the Moving Plaintiffs the benefit of the doubt," the string of forfeitures began in September. However, the motion was not filed until November.

The judge added that "the facts associated with enactment of the TPP in 2022, and its application to member institutions during the 2024 season, suggest the movants could have sought injunctive relief much earlier if the exigencies of the circumstances required mandatory court intervention,” adding, "For these reasons, 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."

Crews, who said during arguments earlier in the month that he would be referring to Fleming with female pronouns, wrote, "No Defendant disputed that SJSU rosters a trans woman volleyball player." He said that rulings in the Tenth Circuit and the Supreme Court regarding Title IX and the Equal Protection Clause "suggests the movants have failed to show a likelihood of success on the merits of these claims." He cited the 2020 Bostock ruling from the Supreme Court, in which it was ruled that Title VII protects employees from discrimination based on sexuality or gender identity.

"In Bostock, the Supreme Court interpreted the meaning of 'sex' as used in Title VII of the Civil Rights Act of 1964" in that it held that "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." He added, "Since Bostock, many circuit courts have followed this precedent to find or assume that “sex” under Title IX’s prohibitions includes discrimination based on an individual’s trans status or sexual orientation."

"Moreover, the movants’ Title IX theory raised in this case directly conflicts with Title IX’s prohibition on discrimination against trans individuals," Crews wrote.

He added that the plaintiffs “have failed to meet their burden to establish a likelihood of success on the merits of their Title IX and Equal Protection claims" based on precedent and current record set by the Tenth Circuit and Supreme Court.

In their appeal, the plaintiffs argued that the student-athletes "did not unduly delay bringing their challenge," noting that the lawsuit was filed 48 days after the TPP was made public and the athletes "cannot be blamed for giving the MWC the benefit of the doubt that they would do the right thing in response to their protests."

The appeal states that the TPP violates the First Amendment because the First Amendment "protects participation in boycotts" and the rules set forth by the MWC punish this. They also argue that Transgender Eligibility Policies of the NCAA, which is incorporated into the TPP, violated Title IX and noted that the Supreme Court "refused to stay a lower court ruling enjoining new Title IX regulations that 'newly redefine[d] sex discrimination to include discrimination on the basis of sexual orientation and gender identity.'"

San Jose State ruling by Hannah Nightingale