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The ruling is based in part on the contention that Title IX protects transgender athletes more than women — despite the fact that the effort to rewrite Title IX to include gender identity is currently blocked by three different appellate courts.
[UPDATE] U.S. District Court Judge S. Kato Crews has ruled that Blaire Fleming, the San Jose State University (SJSU) volleyball player who is male but identifies as female, may continue to play on the women’s team, including during the Mountain West Conference (MWC) Tournament, despite pleas from female athletes to ban Fleming.
Less than two weeks ago, 11 current and former women’s college volleyball players filed suit against SJSU and MWC, alleging that allowing Fleming to compete violated their right to equal opportunity under Title IX.
Title IX was passed in 1972 specifically to protect women against discrimination in educational settings and to ensure that women had equal opportunity to play in their own sports competitions.
One of the plaintiffs in the lawsuit is current SJSU captain Brooke Slusser, while another is Melissa Batie-Smoose, the associate head coach of SJSU’s women’s volleyball team, who was suspended indefinitely for speaking out on this issue.
Despite their arguments, Crews declined to grant an injunction, saying that Fleming had competed in women’s volleyball since 2022 and that the MWC had permitted him to play to this point, meaning that it would alter the status quo to grant an injunction.
Crews ruled that an injunction would “would risk confusion and upend months of planning and would prejudice, at a minimum, Defendants and other teams participating in the tournament depending on the results of any reseeding.”
The players only found out this season that Fleming is male, though it has not been confirmed by SJSU.
Crews also claimed that Title IX covers biological men identifying as women as well as biological women. However, the Fifth, Sixth, and Eleventh Courts of Appeals have all blocked the Biden Administration’s recent attempt to reinterpret Title IX to include gender identity, and in August, the Supreme Court refused to lift those injunctions.
In addition, the Supreme Court ruled in Bostock v. Clayton County that gender identity is only a protected class when it comes to employment discrimination under Title VII; its majority opinion expressly refused to extend the Bostock ruling to include Title IX.
SJSU, which has been the beneficiary of seven forfeits by teams refusing to compete against Fleming, is the No. 2 seed in the MWC tournament, receiving a first-round bye, meaning they’re automatically advanced to the second round. However, the team will also likely get an automatic victory in the second round as it is scheduled to play the winner of the Utah State and Boise State game, two teams which have already forfeited against SJSU.
The Independent Council on Women’s Sports (ICONS), which supported the lawsuit, promised in a post on X, “This Fight Against the Mountain West Conference and SJSU is Just Beginning” and added that the plaintiffs have already appealed to the U.S. Court of Appeals for the Tenth Circuit.
The ruling does not dismiss the suit, only rejects the appeal to enjoin Fleming from competing in the MWC Tournament.
Women’s sports advocate Riley Gaines blasted the ruling on X, saying,
“Last week, a Biden-appointed federal judge held a hearing for the volleyball players suing the Mountain West Conference. He barred the female athletes from testifying. Today, he ruled in favor of the less-than-mediocre man. The girls plan to appeal the ruling.”
{Published November 18, 2024} Twelve plaintiffs, including 11 current and former women’s college volleyball players and an associate head coach, have filed suit against the Mountain West Conference and San Jose State University officials for permitting male player Blaire Fleming to play on the women’s team.
Last week, the plaintiffs, with support from the Independent Council on Women’s Sports (ICONS), filed suit in the U.S. District Court for the District of Colorado, claiming that the Mountain West Conference (MWC) and officials at San Jose State University (SJSU) have violated the plaintiffs’ rights to fair competition and safety guaranteed by Title IX and the First Amendment speech rights of players and an assistant coach.
The plaintiffs include Brooke Slusser, the current co-captain of SJSU’s women’s volleyball team; two former SJSU players; two current University of Nevada women’s volleyball players, including co-captain Sia Liilii; three members of the University of Wyoming’s women’s volleyball team; two players on the Boise State University women’s volleyball team; and Kaylie Ray, co-captain of the Utah State University women’s volleyball squad.
In October, the Freedom Center reported that the women’s volleyball teams at Boise State, University of Wyoming, Utah State University, Southern Utah University, and the University of Nevada had all made the decision to forfeit games rather than compete against SJSU and Fleming.
Since that time Wyoming and Boise State have both forfeited additional games against SJSU.
In addition, since the publishing of that article, SJSU Associate Head Coach Melissa Batie-Smoose, who is also a plaintiff in the suit, filed a Title IX complaint against SJSU. In it, she claimed that Fleming conspired with a player on the Colorado State University-Fort Collins team to injure Slusser, who had publicly spoken out about her opposition to Fleming playing on the team and had joined in a lawsuit against the NCAA.
Batie-Smoose also claims Fleming was conspiring with the other player to throw the game and that SJSU head coach Todd Kress gave Fleming preferential treatment and acted in a retaliatory nature towards Slusser.
After her complaint, however, SJSU suspended Batie-Smoose indefinitely, upsetting Slusser and the other female members of the team.
Slusser wrote on X,
“My assistant coach spoke truth to protect my team. Then…they fire her. They took away the only safe space we had in the program. Because she knew that it was right to stand up for the 18 women on the team. Not one man.”
It was following this suspension that Slusser, Batie-Smoose, and the other plaintiffs filed their lawsuit.
The suit claims that SJSU leadership, including Kress and former head coach Trent Kersten, were aware that Fleming was a male but that the other players and Batie-Smoose were not. The complaint paints a picture of stolen opportunities, broken promises, preferential treatment, and an effort to silence any criticism of Fleming or the school.
For example, former SJSU players Alyssa Sugai and Elle Patterson claim that they were both denied scholarships as a result of Fleming joining the team.
Sugai was a walk-on at SJSU who was paying for her education without a scholarship. She put in extra work, but ultimately lost the starting spot to Fleming, because, as Kersten told Sugai, Fleming was “more physical.” After that, Sugai was given little playing time and her transfer opportunities evaporated.
She has since decided to retire from volleyball even though she had wanted to continue playing.
Kress, who was now the head coach, actively recruited Patterson to play at SJSU. He allegedly told the incoming freshman that she would receive a full scholarship and that she, as a top-rated beach volleyball player, would also be allowed to play on the beach volleyball team.
Patterson went to SJSU for the 2023 season, only to be told by Kress that he did not want his players playing beach volleyball and banned her from playing. He did, however, allow Fleming to play beach volleyball.
When Kress asked Batie-Smoose, who was in charge of the beach volleyball team, how Fleming was doing, she said, “Wow! She went up to block a ball and she jumps like a Dude and hangs like a Dude! Crazy!”
Kress also went back on his promise of a scholarship for Patterson but indicated that she would receive one for the next season; yet when the season ended, he again withheld a scholarship for Patterson, giving Fleming the starting spot over her, along with a scholarship.
Another common allegation in the suit is that since none of the players knew that Fleming was a male, only that he had much greater jumping ability and spike velocity. For this reason, they changed in the locker room with Fleming, even disrobing in front of him (Fleming never disrobed in front of the other players). They claim that their right to bodily privacy was violated because if they had they had known he was male, they would not have changed in front of him.
Slusser’s situation goes even further. She transferred to SJSU in the fall of 2023 and began sharing an apartment with four members of the team, one of those being Fleming.
She alleges that at no point was she informed that he was a male, even though the school and coaching staff knew she was sharing an apartment with him.
Kress also allegedly allowed Fleming to choose who he shared a room with on the team’s overnight trips. Fleming chose Slusser.
Slusser said she would not have roomed with Fleming had she known he was a male.
Once it became public that Fleming was a male, Kress and SJSU allegedly threatened the female players and told them they were not allowed to speak about the issue.
When Slusser joined the suit against the NCAA, Kress allegedly retaliated against her. He stopped coaching her and denigrated her to other players.
The suit argues that not only is Fleming ineligible to play but that the MWC covertly changed its policies to require that teams with safety concerns forfeit a game and register a loss; this occurred the same day that Boise State announced it would not compete in the game due to safety concerns.
The suit claims that the policy was enacted hastily as an attempt to silence athletes.
Bill Bock is acting as the lead attorney for the plaintiffs. Bock is a former member of the NCAA Committee on Infractions, who resigned his post on February 9, 2024, because he felt the NCAA’s policy on allowing males to compete against females was unfair.
Bock said,
“The NCAA, Mountain West Conference, and college athletic directors around the country are failing women. 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 said when she first joined the lawsuit against the NCAA that it was “an easy decision for me to join because it’s something I truly believe in.”
Some may ask why Slusser doesn’t boycott playing with Fleming. To that she responded,
“It’s definitely something that I thought about really hard. And I think the hardest part about the whole situation is that this team really loves each other. My best friends are on this team. Just having to go through this breaks me, because the team is full of such loving, caring women, and to put them all through this is absolutely absurd.”
She continued,
“I might only have three months left ever of playing volleyball. I already used my transfer, so I can’t transfer again. It was either I walk away from volleyball forever or I kind of swallow this hard pill, suck it up and play, do what I can for my team and protect them any way I can.”
Slusser, her teammates, and all the women who have been affected by this issue should never have been in such a situation. And they shouldn’t be the ones forced to quit a women’s sports team.
They, as women in their teens and early 20s, are not only losing out on playing time but they are also allegedly facing a campaign to bully and silence them.
By filing this suit, they are showing courage and resolve in working to make sure that future women do not have to go through the same thing they have been through.
No woman should be tricked or forced into undressing in front of a man or sharing overnight accommodations. No woman should lose her scholarship or her spot on a women’s team to a man. No woman should have to face the threat of injury competing against a man.
Let’s pray that these women succeed in their suit. It’s high past time the courts step in and end this farce once and for all.
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