A group of women's college volleyball players and a coach have filed suit against San Jose State University and the Mountain West Conference, seeking a court order blocking SJSU from participating in the upcoming MWC Volleyball Tournament if SJSU continues to allow a transgender athlete, who was born male, to play, saying the inclusion of that player gives an unfair advantage to SJSU and diminishes opportunities available to women, allegedly in violation of federal civil rights law.
The players further assert the MWC and SJSU, in some cases, have illegally changed conference policies to punish schools who have refused to compete against SJSU and transgender player Blaire Fleming, and taken actions to vilify and retaliate against players who have spoken out, violating their constitutional rights to free speech and equal protection.
The lawsuit was filed Nov. 13 in federal court in Denver.
The athletes are supported in the action by the organization known as the Independent Council on Women's Sport (ICONS), which says it is funding the lawsuit.
"The NCAA, Mountain West Conference, and college athletic directors around the country are failing women," said Bill Bock, ICONS' lead attorney, who is representing the athletes.
"Because the administrators don't have the courage to do their jobs, we have to ask the federal courts to do their job for them."
Athletes identified as plaintiffs in the action include: Brooke Slusser, of SJSU; Sia Liilii, of University of Nevada at Reno; Kaylie Ray, of Utah State University; Macey Boggs, of University of Wyoming; Nicanora Clarke, of Nevada-Reno; Elle Patterson, of IU Indianapolis; Sierra Grizzle, of Wyoming; Alyssa Sugai, of SJSU; Kiersten Van Kirk, of Boise State University; Katelyn Van Kirk, of Boise State; and Jordan Sandy, of Wyoming.
They are joined by Melissa Batie-Smoose, SJSU women's volleyball associate head coach.
The lawsuit comes as the latest flash point in a larger legal and cultural battle over the ability of purportedly male athletes to participate in women's college sports.
Slusser and others, for instance, are currently suing the NCAA separately, asserting the NCAA has violated the federal civil rights law known as Title IX by establishing policies that allow transgender athletes who were born male to participate in women's sports.
In the new action, the athletes level similar claims against the Mountain West Conference and SJSU, claiming their decision to grant Fleming an athletic scholarship and to play for SJSU also violated Title IX because those actions took away scholarship opportunities and playing time from female athletes, while also giving SJSU an unfair advantage over opponents and allegedly putting female athletes in danger of concussions and other physical injuries.
According to the lawsuit, SJSU and the MWC also allegedly retaliated against Slusser and Sugai for voicing concerns or filing complaints, while threatening them and other SJSU athletes with potential disciplinary action, including removal from the team or ending their scholarships, should they discuss their concerns or Fleming's biological sex with others outside the team.
In the lawsuit, Slusser further accused SJSU and MWC of taking no action to investigate or discipline Fleming for allegedly conspiring with members of an opposing school, identified as Colorado State University, to throw a match and potentially to physically harm Slusser during the game.
The lawsuit alleges SJSU's coach, Todd Kress, has favored Fleming, allegedly allowing Fleming to violate team rules without discipline and allegedly punishing Slusser and others who have expressed concerns about Fleming's continued participation.
The lawsuit asserts, for instance, that Kress allegedly knew Fleming had sneaked out of the team hotel the night before the questionable Colorado State match and had allegedly spent time with Colorado State players, but allegedly took no action against Fleming, despite team rules prohibiting such conduct.
In the lawsuit, Battie-Smoose accused Kress and SJSU of then retaliating against her and placing her on administrative suspension for questioning Kress' treatment of Flemning, Slusser and other players.
According to the lawsuit, Batie-Smoose told Kress told the allegedly preferential treatment of Fleming was harming the team. But Kress allegedly told her that he "identifies with Fleming and considers Fleming to be facing similar challenges to those Kress believe he has faced"... "because of Kress's alignment with LGBTQ+ individuals."
According to the complaint, Kress then allegedly sought to minimize Batie-Smoose's role on the team and to refer to players who questioned Fleming's continued place on the team as "hateful" and transphobic.
According to the complaint, SJSU women's volleyball players did not become aware of Fleming's transgender status until midway through the 2023 season, as the university did not disclose it. Rather, the complaint asserts players continuously marveled at Fleming's strength and leaping abilities, which they noted were similar to those exhibited by male players.
According to the complaint, Slusser and others reportedly were either ignored, rebuffed or berated when they voiced concerns over the potential dangers posed to SJSU players in practice and to opposing players in matches by the power with which Fleming could spike the ball, in particular, which the complaint said greatly exceeded anything normally seen in women's volleyball.
The athletes included in the lawsuit from other schools accused the MWC, particularly, of taking illegal actions against their schools by allegedly quickly and secretly amending the conference's handbook to include a transgender participation provision, which the conference then allegedly cited to force any schools which chose not to play against Fleming and SJSU to accept a loss by forfeit. This then allegedly affected their schools' seeding the conference tournament, and potentially, affected opposing players' success and opportunities for advancement.
They further assert the MWC also moved to silence athletes, coaches and others from speaking out in protest or to publicly raise questions.
The lawsuit seeks court orders declaring MWC and SJSU violated Title IX and the constitutional rights of athletes and coaches.
Plaintiffs further seek an injunction preventing SJSU from participating in the MWC tournament, scheduled to begin Nov. 27 in Las Vegas, if Fleming remains on the team.
And they have asked the court to order SJSU and MWC to pay unspecified money damages, including money damages, for the alleged mistreatment and silencing of Slusser, Batie-Smoose and others.
Neither SJSU nor the MWC have yet responded to the injunction request or other plaintiffs' claims in court.