- The Washington Times - Thursday, November 21, 2024

DENVER — San Jose State volleyball player Blaire Fleming could become the next male-born athlete to hoist a women’s collegiate trophy — unless a federal judge calls foul.

U.S. District Judge S. Kato Crews said Thursday that he will rule shortly on an emergency motion filed by 11 current and former female college volleyball players urging him to block Fleming from participating in the Mountain West Conference Championship, which begins Wednesday and runs through Nov. 30 in Las Vegas.

“I recognize the time constraints here, so I will work my best to get you an order in a timely fashion,” Judge Crews said at the end of oral argument at the Byron Rogers Federal Building in Denver.

The players, joined by San Jose State associate coach Melissa Batie-Smoose and Utah State University, also want the Mountain West to recalculate the team standings from the 2024-25 season ahead of the tournament.

Four Mountain West teams refused to play against Fleming, taking forfeits that were counted in the standings as losses and wins for San Jose State. The lawsuit seeks to have the forfeits counted as “no contests,” which would drop the Spartans in the standings.

Only the top six of the 11 teams qualify for the end-of-season tournament held by the NCAA Division I conference.

At the hearing, attorneys for the players argued that the Mountain West Conference violated Title IX with its 2022 Transgender Participation Policy, which allows biological males to compete in women’s sports based on gender identity if they keep their testosterone in serum below 10 nmol/L.

William Bock, attorney for the players, said that Fleming is “indisputably a more powerful striker of the ball and higher leaper than any women’s player in the conference.”

“There is no way that that advantage could exist without Fleming being male,” he said. “Allowing Fleming to play against women protected by Title IX deprives them of equal opportunity for fair and safe sport, in addition, of course, to taking a scholarship, recognition and honors from women.”

Title IX, which bans sex discrimination in education, applies to institutions that accept federal funding. The conference itself is a nonprofit corporation, but Mr. Bock argued that it should be considered a state actor, given that it has authority over state universities that receive federal funding.

The conference’s attorneys disagreed, arguing that neither the Mountain West nor the commissioner are state actors, but that they serve the universities.

“It is not the Mountain West that determines whether any member institution rosters a transgender athlete,” attorney Wesley Powell said.

Judge Crews noted that the Mountain West’s transgender policy was approved by its board of directors, which is composed of the university presidents within the conference, and then ratified by their athletic directors.

“It appears to be literally a collection of state actors,” said Judge Crews, a Biden appointee. “How under that government structure is the Mountain West Conference …  not also a state actor?”

The judge also asked why the conference suddenly decided in September 2024 to add the transgender policy to the online handbook, two years after it was enacted.

“It’s pretty straightforward,” said Mr. Powell. “Rumors, reports were coming out about a transgender player. The conference was getting inquiries about it, and so it made a decision to respond to that.”

He said the policy was distributed before that through the management documents of individual sports, adding that “it was hardly a secret.”

The lawsuit filed in U.S. District Court in Colorado is believed to be the first filed by female scholastic athletes seeking to declare a transgender player ineligible. The Mountain West Conference is based in Colorado Springs.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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