A last-minute appeal by a San Jose State University women’s volleyball player to get her transgender teammate banned from a regional championship series starting Wednesday has been denied.
A two-judge panel in Colorado federal appeals court on Tuesday morning rejected the emergency appeal by San Jose co-captain Brooke Slusser and others to prevent a transgender woman from playing for the Spartans in the Mountain West Conference tournament starting tomorrow.
On November 13, San Jose State Spartans women’s volleyball co-captain Brooke Slusser, along with former Spartan volleyball players Alyssa Sugai and Elle Patterson, San Jose State associate head coach Melissa Batie-Smoose and eight players from four schools that have forfeited games against the Spartans sued three school officials, the Mountain West Conference and the Cal State system over the presence of the transgender player on the San Jose team.
Two days later, they sought an emergency injunction to bar the player from the six-team Mountain West finals, and scrap the conference’s policy allowing transgender players who meet certain testosterone thresholds. They also wanted Spartan wins from forfeits canceled, with a recalculation of conference standings.
On Monday, Colorado federal court judge S. Kato Crews denied the injunction, saying Slusser and her co-plaintiffs waited too long to ask for it.
Slusser and the others appealed Crews’ decision late Monday to the 10th Circuit appeals court in Denver, arguing that the judge “erroneously” ruled that federal Title IX anti-discrimination education law “protects men who identify as transgender more than biological women.”
The appeal asked the court to reorder the conference standings, take away the Spartans’ first-round bye and give it to Utah State, and make the transgender Spartan ineligible for the tournament.
The two appeals court judges, in their ruling Tuesday about 20 hours after the emergency appeal was filed, said they agreed with Crews that Slusser and the others waited too long to ask for changes affecting the Mountain West championship series. The measures requested in the appeal would have been “highly prejudicial and harmful to the defendants,” judges Nancy Moritz and Carlos Lucero wrote. However, the judges wrote, the claims by Slusser and her co-plaintiffs “appear to present a substantial question and may have merit.”
The lawsuit continues in Colorado U.S. District Court, with both sides ordered by a judge to submit a proposed schedule for the case by Jan. 6.
The Spartans over the weekend secured the No. 2 seed spot in the tournament, with a bye in the first round. Then they are scheduled to face the winner of a match between Utah State and Boise State — two of the five teams that have forfeited against San Jose State.
Presence on the Spartan team of the transgender player — whom this news organization is not naming because they have not publicly declared their status — has launched San Jose State into a nation-wide firestorm of controversy over the rights of transgender people. Starting about a decade ago with disputes over who can use which bathrooms, the furor has expanded across many areas of America’s culture wars, with arguments particularly volatile on the matter of transgender women playing women’s sports.
Proponents of transgender rights claim banning transgender athletes from women’s sports violates Title IX, while opponents claim allowing them violates the law by discriminating against women athletes.
The Mountain West Conference, part of the National Collegiate Athletic Association, applies the NCAA’s policy allowing transgender women to play women’s sports after a year of testosterone-suppression drugs if their levels of the hormone stay below certain thresholds. The California Community College Athletic Association governing the state’s community college teams lets athletes compete under their gender identity without testosterone reduction. But the National Association of Intercollegiate Athletics, governing smaller mostly private and faith-based colleges’ programs, bans transgender women from women’s sports.
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