By Amy Beth Hanson/AP
A federal appeals court upheld a ruling Tuesday that allows a San Jose State women’s volleyball team member to play in this week’s Mountain West Conference tournament after a legal complaint said she should be ineligible on grounds that she is transgender and thus stronger, posing a safety risk to teammates and opponents.
A two-judge panel of the 10th U.S. Circuit Court of Appeals agreed with U.S. Magistrate S. Kato Crews in Denver. On Monday he rejected the request for an emergency injunction, finding the players and others who challenged the league’s policy of allowing transgender athletes to participate should have filed the complaint earlier.
The tournament starts Wednesday in Las Vegas, but top-seeded Colorado State and second-seeded San Jose State have byes into Friday’s semifinal matches.
Judge Crews and the 10th Circuit noted the request for the emergency injunction was filed in mid-November, less than two weeks before the tournament was scheduled to start. The complaint could have been made weeks earlier. The first conference forfeit happened Sept. 28. All the schools that canceled games against San Jose State acknowledged at the time that they would take a league loss, Crews noted.
The players and others who sued are disappointed that the appeals court found it would be “too disruptive” to enter an injunction the day before the tournament is scheduled to start, said William Bock III, an attorney for the plaintiffs.
The appeals court said the plaintiffs' "claims appear to present a substantial question and may have merit,” but they have not made a clear case for emergency relief.
“Plaintiffs look forward to ultimately receiving justice in this case when they prove these legal violations in court and to the day when men are no longer allowed to harm women and wreak havoc in women’s sport," Bock said in a statement.
The athlete has played for San Jose State since 2022, but her participation only became an issue this season. The conference policy regarding forfeiting for refusing to play against a team with a transgender player has also been in effect since 2022, the conference said.
Injunctions are meant to preserve the status quo, Judge Crews said, and her playing is the status quo.
The motions for an injunction also asked that the four teams that had conference losses for refusing to play against San Jose State during the regular season have those losses removed from their records and that the tournament be re-seeded based on the updated records. Crews also denied that motion and the 10th Circuit did not address it.
Neither San Jose State nor the forfeiting teams have confirmed the school has a trans woman volleyball player. The Associated Press is withholding the player’s name because she has not commented publicly on her gender identity. School officials also have declined an interview request with the player.
Crews’ ruling referred to the athlete as an “alleged transgender” player and noted that no defendant disputed that the San Jose State roster includes a transgender woman player.
San Jose State will “continue to support its student-athletes and reject discrimination in all forms,” the university said in a statement Monday, confirming all its student-athletes are eligible to participate under NCAA and conference rules.
The conference said Monday it was “satisfied” with the judge’s decision and would continue upholding policies established by its board of directors, which “directly align with NCAA and USA Volleyball.”
An NCAA policy that subjects transgender participation to the rules of sports governing bodies took effect this academic year. USA Volleyball says a trans woman must suppress testosterone for 12 months before competing. The NCAA has not flagged any issues with San Jose State.
In Friday's semifinals, San Jose State is scheduled to play the winner of Wednesday’s match between Utah State and Boise State — teams that forfeited matches to San Jose State during the regular season. Boise State associate athletic director Chris Kutz declined to comment Monday on whether the Broncos would play San Jose State if they won their first-round tournament game. Utah State associate athletic director Doug Hoffman said the university is reviewing the order and the team is preparing for Wednesday’s match.
