Federal Judge Denies Motion to Ban San José State Volleyball Player From Mountain West Tournament

A federal judge has denied a motion to ban a player on the San José State women’s volleyball team from playing in the Mountain West conference tournament beginning Nov 27. The judge has also ruled the Mountain West will not be enjoined from using its current standings—which include forfeits from teams who refused to play the Spartans—to determine which six teams qualify for the tournament.

The lawsuit claimed it was both unfair and physically unsafe for the athletes to have to play on the same team as, or play against, a purportedly transgender athlete.

Counsel for the plaintiffs immediately filed a notice of appeal, despite the conference tournament being just two days away.

The request for a preliminary injunction was filed as part of a lawsuit by a dozen Mountain West women’s volleyball players and coaches, led by SJSU volleyball player Brooke Slusser, against the Mountain West and its commissioner, Gloria Nevarez, last week. The Cal State Board of Trustees, San José State administrators, and SJSU volleyball coach Todd Kress are named as defendants.

In addition to asking for the athlete to be banned from competition, the lawsuit says the Mountain West shouldn’t be allowed to use its current standings, which include losses incurred by four teams who refused to play the Spartans: Boise State, Wyoming, the University of Nevada-Reno, and Utah State. It also argues that the conference infringed upon athletes’ rights to free speech for publicly protesting the player’s participation. Utah State joined the lawsuit as a plaintiff against the Mountain West.

The lawsuit names the player, who has not publicly said she is transgender. The school and conference have not commented on her gender, though the judge’s written explanation of the ruling notes that no one has denied her identity, either.

The player has been a member of San José State’s team since 2022, but her teammates and opponents were allegedly unaware of her gender identity until a news article came out in the spring on the matter, court documents said. Slusser then publicized the news in September in a legal filing, when she joined a lawsuit against the NCAA over its trangender athlete participation policy that allowed former University of Pennsylvania swimmer Lia Thomas to compete in the 2022 NCAA championships. (That lawsuit is being led by former Kentucky swimmer Riley Gaines. An organization called the Independent Council on Women’s Sports is funding both the lawsuits against the Mountain West and the NCAA.)

Since September, Southern Utah, as well as four Mountain West programs—Boise State, Utah State, the University of Nevada-Reno, and Wyoming—have forfeited matches against the Spartans. The Mountain West teams have all taken losses as a result of the conference transgender participation policy, which states teams incur a loss if they refuse to play an opponent because of the transgender athlete who is abiding by the NCAA’s transgender eligibility policy requirements. The lawsuit claimed the Mountain West implemented that policy “under-the-radar” in September, but the conference said in court documents that schools agreed to the policy back in 2022. 

Judge Kato Crews delivered a sweeping 28-page explanation of why he denied these requests Monday. The Mountain West had implemented the transgender participation policy two years ago, and that the transgender player was on the Spartans team since 2022. “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. Crews also wrote that Title IX, which prohibits discrimination in education settings on the basis of sex, also prohibits discrimination against transgender people. 

Slusser was the purported transgender player’s roommate on multiple occasions, according to court documents. SJSU assistant coach Melissa Batie-Smoose filed a Title IX complaint alleging the athlete conspired with a Colorado State player to harm Slusser, though the Mountain West found the complaint had no merit, according to an ESPN report. Batie-Smoose is currently suspended from the team, per court documents.

Players, coaches, and administrators on multiple teams were pressured by lawmakers, lobbying groups, and former players on their decisions for whether to forfeit, internal documents reported by The Washington Post show.