A federal appellate court in Colorado denied an emergency injunction request Tuesday seeking to declare a San Jose State player who they allege is transgender ineligible for this week’s Mountain West tournament in Las Vegas.
The plaintiffs — San Jose State player Brooke Slusser and players from Boise State and Utah State — filed their appeal Monday after a district court denied a similar request for injunction in a lawsuit filed Nov. 13 against the Mountain West and its commissioner, Gloria Nevarez. They allege that the school and conference violated the U.S. Constitution and Title IX by allowing a transgender athlete to play for a women’s sports team.
Both the district judge, Judge Kato Crews, and the two-person panel for the U.S. Court of Appeals for the Tenth Circuit, ruled that the plaintiffs failed to establish irreparable harm by allowing the alleged transgender athlete to compete.
Tuesday’s denial comes after a federal judge on Monday denied an emergency injunction request from the plaintiffs. In Monday’s decision, Crews wrote that the plaintiffs failed to demonstrate irreparable harm, in part by waiting until two weeks before the Nov. 27-30 tournament to seek the injunction. He noted that the Mountain West’s policy on transgender athletes has been in place since 2022 and that San Jose State opponents began forfeiting over the issue two months ago.
“The Court finds their delay in filing this action and seeking emergency relief related to the MWC Tournament weakens their arguments regarding irreparable harm,” Crews wrote.
Crews also wrote that the plaintiffs failed to show a likelihood of success on the merits of their claim that a transgender athlete’s participation on a women’s sports team violates Title IX.
“The movants’ Title IX theory raised in this case directly conflicts with Title IX’s prohibition on discrimination against trans individuals,” he wrote.
In a statement Monday, the Mountain West said it was satisfied with the decision.
“The Mountain West Conference is satisfied with the denial of the preliminary injunction and will continue to uphold the policies put in place by our Board of Directors which directly align with NCAA and USA Volleyball,” the conference said. “We are excited to proceed with the Mountain West Conference Women’s Volleyball Championship and celebrate and spotlight our student-athlete’s hard work and competitive spirit.”
In response to the denial, the plaintiffs filed an emergency appeal Monday night. In their request for relief, they are seeking a reseeding of the conference tournament to eliminate the regular-season forfeits for canceled games against San Jose State. The plaintiffs are also seeking a ruling against the alleged transgender athlete’s eligibility in the conference tournament.
Bill Bock, counsel for the plaintiffs, called it “shameful” that conference and NCAA administrators are “unwilling to do their jobs” of protecting fair competition and athlete safety.
“Because Mountain West Conference Commissioner Gloria Nevarez and NCAA President Charlie Baker won’t do their jobs and are apparently afraid to stand up for the rights of women student-athletes, we are forced to ask the federal courts to do their jobs for them,” Bock said in a statement about the emergency appeal.
Slusser, who transferred to San Jose State prior to the 2023 season, joined a federal lawsuit in September challenging the NCAA’s transgender policy and went public with assertions about her teammate’s gender identification. In the lawsuit, Slusser said the teammate, who was also her roommate, “was born male and identifies as a ‘transgender woman,’” and came out to her during a conversation in April.
Slusser has since spoken with numerous media outlets about her experience with her teammate. The Athletic is not naming the athlete because the athlete has not publicly identified. The school has not publicly confirmed whether the athlete is transgender. Crews, in his decision Monday, wrote that “No Defendant disputed that SJSU rosters a trans woman volleyball player.”
Since Slusser first went public, five schools — Southern Utah, Utah State, Boise State, Wyoming and Nevada — have forfeited matches against San Jose State since late September. Athletes from several of those schools are among the plaintiffs in the Mountain West suit.
The plaintiffs alleged that the Mountain West waited until after the San Jose State story broke in September to publish a policy stating a team that refuses to compete against a fellow member with an eligible transgender athlete will forfeit and be charged with a loss. In the lawsuit, the plaintiffs alleged the policy constituted a First Amendment violation that worked to suppress athletes’ ability to protest the alleged transgender athlete’s inclusion.
However, the judge’s decision indicates the conference’s board approved it in 2022 and circulated it amongst the schools at that time.
“The Court also finds the movants have failed to show a likelihood of success on their First Amendment claim involving the TPP,” Crews wrote.
San Jose State said in a statement Monday that all its student-athletes are eligible to participate in their sports under NCAA and Mountain West Conference rules.
“We are gratified that the Court rejected an eleventh-hour attempt to change those rules,” the statement said. “Our team looks forward to competing in the Mountain West volleyball tournament this week.”
San Jose State is the No. 2 seed in the tournament and will play its first match Friday against the winner of Wednesday’s match between No. 3 Utah State and No. 6 Boise State, both of which forfeited against SJSU during the season.
“Utah State is reviewing the court’s order,” the university said in a statement Monday. “Right now, our women’s volleyball program is focused on the game this Wednesday, and we’ll be cheering them on.”
GO DEEPER
Volleyball players, coach sue SJSU, Mountain West over transgender athlete
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