Before its women’s volleyball team competes in the conference tournament next week, San Jose State University hopes to secure another win — in federal court.
A judge for the U.S. District Court of Colorado will consider Thursday whether to disqualify a player on the San Jose State squad from postseason play at the emergency request of a collection of current and former players and an associate head coach, who are suing San Jose State and its conference. The lawsuit claims the player, Blaire Fleming, “is male and identifies as transgender,” and that the Mountain West Conference and San Jose State acted illegally in allowing her to compete, among other things.
Just this week, several congressional Republicans called on the conference to bar Fleming from play and Utah State University asked to join the lawsuit — the latest escalations in an already heated conflict. The San Jose State team has received hate mail and police have presided at games. Players in the conference are divided on whether it’s safe or ethical to play against Fleming. Coaches of the four opponents that have forfeited their matches against San Jose State have been called bigots by critics and heroes by supporters. Politicians, including President-elect Donald J. Trump, have seized on the drama.
The magnitude of the debate between coaches, players, administrators, and state lawmakers illustrates the emotional and political stakes of a national debate in which both sides are fighting for their idea of an equal playing field.
Fleming has not spoken publicly about her gender identity and did not respond to The Chronicle’s request for an interview. But the claims of several athletes who have played with and against her populate the federal lawsuit that now sits before a judge.
The suit’s main claim is that the NCAA’s transgender-eligibility policy, which the Mountain West follows, violates the gender-equity law known as Title IX. (The NCAA allows individual sports to come up with their own policies, and USA Volleyball’s states that players’ testosterone must not exceed a certain level. The conference commissioner told the Associated Press that Fleming is eligible.) Fleming “has insuperable performance advantages which stem directly from Fleming’s biological maleness” and which deprive her competitors of the equal opportunities promised by the law, the suit argues.
Two former San Jose State volleyball players claim they lost playing time and scholarships to Fleming, whom coaches considered to be a more “physical” player. Brooke Slusser, a plaintiff and the San Jose State player who first drew public attention to Fleming, also alleges that her right to bodily privacy was violated, claiming she would not have shared a hotel with or changed clothing in front of Fleming if she had known Fleming was a transgender woman.
In addition to Title IX claims, the plaintiffs also allege that the conference has violated their First Amendment rights. For one, counting forfeits as losses effectively penalizes protests, they say. The lawsuit argues that the Mountain West handbook did not have a policy that assigned losses to teams that refused to compete against a transgender player until Boise State University became the first conference opponent to do so. The Mountain West told the Cowboy State Daily that the rule was adopted two years ago and “has not changed.” The lawsuit points to other conference policies, like the one for inclement weather, that allow games to be canceled but not forfeited as evidence that the transgender-participation policy “penalizes student-athletes for exercising their First Amendment rights to protest men participating in women’s sports.”
In a statement to The Chronicle, the Mountain West conference said that it “prioritizes the best interests of our student-athletes and takes great care to adhere to NCAA and MW policies.” A Mountain West spokesperson said the conference is unable to comment on the pending litigation but that it does “take seriously all concerns of student-athlete welfare and fairness.”
Players have also accused coaches and administrators of suppressing their free speech. Plaintiffs from the University of Nevada at Reno team argue in the lawsuit that their “concerns about their safety and competitive fairness were not being taken seriously.” Their athletic director told them transgender women did not have a competitive advantage and encouraged them to think about how forfeiting would affect their season, the suit says. The match was ultimately forfeited. A spokesperson for the university declined to comment.
In the lawsuit, a Utah State player named Kaylie Ray says several players on the squad told their head coach, Rob Neilson, that they didn’t want to play against Fleming, but he was “resistant to any protest.” The team then met with Utah State’s president and athletic director and took an anonymous survey on their feelings about playing the San Jose State game. Shortly after, the match was canceled.
To celebrate, Ray and three other Utah State players wore T-shirts that said “BOYcott” to practice and posted a photo on social media. They allege that Neilson reprimanded the players for posting the photo and said the team should not comment publicly on this “hot-button” issue. Neilson did not respond to The Chronicle’s interview request.
In an email to a fan obtained by The Chronicle through a public-records request, Neilson wrote that his team “felt compelled this year to take a stand” and that “we believe the rule should change.”
The San Jose State plaintiffs allege that Todd Kress, the head coach, and Michelle Smith McDonald, a university spokesperson, told the team to not speak publicly about Fleming’s gender identity. The lawsuit says players feared losing their scholarships or being kicked off the team if they disagreed about Fleming being on the team.
A spokesperson for San Jose State told The Chronicle in an email that the university had “received the complaint and will review and respond appropriately.”
Politicians have also made their opposition known.
In October, Wyoming State Sen. Cheri Steinmetz wrote a letter to the University of Wyoming’s athletic director, Tom Burman, and its president, Ed Seidel, urging the university to cancel its upcoming match against San Jose State. That same day, team members were told they would not play. According to meeting notes obtained by The Chronicle through a public-records request — and first reported by USA Today — the team was split in a vote on whether to play, but Burman said it “would have been taken out of his hands regardless.” Burman declined The Chronicle’s request for an interview.
Idaho Gov. Brad Little applauded Boise State for forfeiting, and the governors of Utah, Wyoming, and Nevada all chimed in on social media as well. This week, 13 Republican members of Congress wrote the Mountain West commissioner asking the conference to prohibit biological males from competing in women’s sports. “Life isn’t fair, but sports should be,” they wrote.
After Utah Gov. Spencer Cox and top leaders in the state legislature urged Utah State University to intervene in the federal lawsuit, the university filed a motion to do just that. It claims that if the forfeits were counted as cancellations, not losses, then Utah State would earn the top seed in the conference tournament and have a better chance of punching a ticket to the national tournament.
The University of Nevada at Reno team gained the support of former U.S. Rep. Tulsi Gabbard, whom Trump named recently as his nominee for national-intelligence director, when she attended a Wolfpack volleyball match in October. Trump himself referenced a spike made by Fleming on a Fox News town hall last month. “I saw the slam, it was a slam. I never saw a ball hit so hard, hit the girl in the head,” he said.
A permissive attitude toward transgender athletes in women’s sports has also been emphasized in Democrats’ post-election debriefs as evidence that the party is out of touch with the American mainstream on social issues. Seth Moulton, a Democratic representative from Massachusetts, told The New York Times that he didn’t want his daughters “getting run over on a playing field by a male or formerly male athlete, but as a Democrat I’m supposed to be afraid to say that.”
Sarah Fields, a communications professor at the University of Colorado at Denver who studies the intersection of sports and American culture, said the political climate catalyzed widespread attention to the issue. She pointed to Trump’s presidential campaign spending millions of dollars on advertisements critical of transgender athletes and gender-affirming care. “The Trump campaign certainly believed that it was a flash point,” she said.
Although the number of transgender people competing in collegiate sports is “extremely small,” the issue has a “rhetorical hook,” said Elana Redfield, federal-policy director at the Williams Institute, a research center focused on sexual-orientation and gender-identity law and public policy at the University of California at Los Angeles School of Law. “It’s been effective at activating people’s fears,” she said. “Everyone wants the sport to be fair. And it’s perfectly legitimate to be worried about injuries.”
Political attention may soon materialize into new policy. Trump’s administration is likely to reverse the Biden administration’s expansive interpretation of Title IX, which does not regulate transgender participation in athletics but does broaden sex discrimination to include gender identity.
Trump vowed to ban transgender athletes on “day one.” His campaign platform promises that he will ask Congress to pass a bill stating the federal government only recognizes sex assigned at birth and that Title IX prohibits men from competing in women’s sports.
Federal policy change would inevitably threaten federal funding to colleges that allow transgender athletes to play sports. It might also cause chaos at the state level if it conflicts with existing state laws or policies, Redfield said. “I think we can expect a fight between the state and the federal government and a fight for the right of trans athletes to participate in sports,” she said.
That fight gets complicated with collegiate teams, which often play across state lines. “You incur the risk that there could be a lot of missed competitions,” she said. “And there could be an overall falling apart of the structure.”
In that way, the drama in the Mountain West could be a sign of what’s to come.
Ashlyn Hare, a lawyer who focuses on sports law and civil-rights litigation, said the preliminary injunction requested by the plaintiffs to disqualify Fleming has a high bar to clear, in part because existing Supreme Court precedent states that the NCAA is not directly subject to Title IX. “The plaintiffs have to show that they’re likely to succeed on the merits,” she said. “In a case like this that is highly controversial, with Supreme Court precedent that cuts against the plaintiffs’ arguments, it’s really unlikely that this preliminary injunction is going to get granted.”
