Women’s volleyball players in Mountain West sue conference over trans inclusion, Title IX, free speech violations

The suit, filed in the US District Court for the District of Colorado, is seeking emergency injunctive relief ahead of the MWC women’s volleyball tournament that will take place on November 27 in Las Vegas.

The players that brought forth the lawsuit are Brooke Slusser, SJSU women’s volleyball co-captain; Sia Liilii, University of Nevada, Reno women’s volleyball co-captain; Nicanora Clarke, a University of Nevada, Reno women’s volleyball team member; Kaylie Ray, Utah State University women’s volleyball co-captain; Macey Boggs, Sierra Grizzle, and Jordan Sandy, who are all University of Wyoming women’s volleyball team members; Katelyn Van Kirk and Kiersten Van Kirk, who are Boise State University women’s volleyball players; and SJSU associate head coach of women’s volleyball Melissa Batie-Smoose. Also listed were former SJSU women’s volleyball players Alyssa Sugai, Elle Patterson.

The lawsuit is against the Mountain West Conference (MWC), MWC Commissioner Gloria Nevarez, the Board of Trustees of the California State University which oversees SJSU and other California state schools, SJSU Senior Associate Athletic Director for Student-Athlete Wellness and Leadership Development Laura Alexander, SJSU Senior Director of Media Relations Michelle McDonald Smith, and SJSU women’s volleyball head coach Todd Kress.

The lawsuit highlights the female athletes’ experiences with Fleming, including Sugai, who was passed over for a scholarship because of Fleming and ultimately quit volleyball; Slusser, who wasn’t told that Fleming was a biological male despite being frequently paired together to room for competition trips because Fleming requested it; and Patterson, who was told she would receive a scholarship when she transferred but was told that she would actually get one for the following season. During her year paying full tuition, Patterson received a hand injury and missed significant playing time, with Fleming being substituted in. Kress later told Patterson that she would not get a scholarship, while Fleming, who allegedly missed more playing time that season than Patterson, retained a scholarship.

At an April SJSU meeting between the women’s team players and coaches and school officials in the wake of an article about Fleming’s biological sex, team members were told that they could not speak to anyone outside of the team about Fleming’s biological sex, and "if the women spoke publicly about Fleming being male things would go badly for the team members." Criticizing Fleming could "harm their reputation and could subject them to discipline or loss of their scholarship and could be considered a violation of school policies or state law," the lawsuit said.

The lawsuit noted that the MWC published its 2024-25 handbook on September 13, 2024, which contained no transgender participation policy. However, changes were made to the handbook on September 27, 2024. This came after Southern Utah University, a non-MWC school, withdrew from competition against SJSU over Fleming’s participation. On September 27, Boise State University withdrew from competition against SJSU, citing a forfeiture policy in their withdrawal statement that as of that morning was not on the MWC handbook.

"Yet, on September 27, 2024, the very day that Boise State University announced its women’s volleyball team would not play its September 28, 2024, match against SJSU, without fanfare, and indeed without any apparent public announcement or acknowledgement, a new Mountain West Conference 'Transgender Participation Policy' (MWC TPP) appeared as 'Appendix J' in the online version of the 2024-25 MWC Handbook," the lawsuit states.

The lawsuit alleges that Nevarez and her staff "hastily" drafted and posted the amendment "designed to penalize First Amendment protests supporting the rights of women’s volleyball players in the MWC" amid "burgeoning controversy." The lawsuit added, "This new MWC policy was clearly intended to chill and suppress the free speech rights of women athletes in the MWC."

The lawsuit alleged that the addition to the handbook did not go through its usual process, with no meetings being held on it, nor written consent from University chief executive officers.

"Timing makes clear that adoption of the MWC TPP was motivated by participation of Fleming on the SJSU Team and public knowledge that MWC women’s volleyball teams were considering sitting out of matches against SJSU because Fleming is a trans-identifying male. No other reasonable explanation can be given for the mid-season, last minute, posting of the MWC TPP just as the Boise State University was announcing its women’s volleyball team would not be playing its match against the SJSU Team," the lawsuit stated.

It also seeks for the court to block the MWC from using the transgender participation policy to issue losses to teams that refuse to play Fleming, block SJSU from bringing Fleming to the MWC tournament, and block SJSU from competing in the tournament because Fleming played for the team in games.

"The NCAA, Mountain West Conference, and college athletic directors around the country are failing women," Bill Bock, lead attorney for the plaintiffs and ICONS, which is backing the suit, told OutKick. "Because the administrators don’t have the courage to do their jobs, we have to ask the federal courts to do their jobs for them."

Slusser Et Al. v. Mountain West Conference Et Al by Hannah Nightingale on Scribd