Anti-Trans Suit Seeking to Ban San José State Volleyball Player Is Denied on Appeal

Updated 11:40 a.m. Tuesday

A federal appeals court on Tuesday upheld a judge’s decision not to ban a San José State volleyball player from this week’s Mountain West Conference tournament, the latest turn in a case that has thrust the university into a nationwide debate over transgender athletes in women’s sports.

The suit filed by Spartans co-captain Brooke Slusser, among others, targeted a player on the team who plaintiffs say is transgender. They argued that letting her play would be sex discrimination, but U.S. District Judge S. Kato Crews on Monday denied their request for an injunction, citing a 2020 Supreme Court ruling noting that federal laws against sex discrimination bar discrimination based on gender identity.

Crews also said the plaintiffs should have filed earlier and did not show that they would suffer irreparable harm from the SJSU athlete playing in the Mountain West tournament, which begins Wednesday.

Slusser and the other plaintiffs immediately filed an emergency appeal, but one day later, the 10th Circuit Court of Appeals agreed with Crews.

“Plaintiffs’ claims appear to present a substantial question and may have merit,” the appeals court said in its ruling. “But plaintiffs have not established clear entitlement to relief, and however potentially meritorious, their showing does not rise to the level of clear entitlement under the appropriate standards.”

Civil rights experts had said keeping the player out of the tournament would violate the federal law, Title IX, which prohibits sex-based discrimination and sexual harassment in educational settings.

“Trans students have protections under Title IX, and they have protections under the Constitution’s equal protection guarantee,” said Shiwali Patel, senior director of safe and inclusive schools at the National Women’s Law Center. “It’s just kind of one tactic that we’ve seen extremists apply in trying to exclude trans people from civil rights protections.”

Because the SJSU player being targeted in this lawsuit has never spoken publicly about her gender identity, KQED is not identifying her.

In a statement on Monday, the university said it “will continue to support its student-athletes and reject discrimination in all forms.”

“All San José State University student-athletes are eligible to participate in their sports under NCAA and Mountain West Conference rules,” the statement said. “We are gratified that the Court rejected an eleventh-hour attempt to change those rules.”

This lawsuit is just the latest legal action involving the SJSU volleyball team. Slusser is also a plaintiff in another suit challenging a NCAA policy that allows trans women to play under some circumstances.

Since Slusser joined that suit led by former University of Kentucky swimmer and anti-trans activist Riley Gaines, four teams have refused to play the Spartans in apparent solidarity with Slusser.

The anti-trans advocacy group ICONS funds both lawsuits and claims that trans women have an unfair advantage that puts other players in danger of injury.

There’s no evidence that transgender women who medically transition have any universal athletic advantages over their cisgender counterparts.

The lawsuits and forfeits have drawn the attention of conservative media outlets, in particular, and have fired up Republicans, including President-elect Donald Trump. Speaking on Fox News in October, he said he plans to ban all transgender women from competing in women’s sports.

The controversy is being mirrored in secondary school athletics. Stone Ridge Christian High School in Merced could face sanctions from California’s high school sports governing body after it forfeited a playoff girls’ volleyball game on Saturday against San Francisco Waldorf.

“Everything we do at Stone Ridge Christian Academy reflects Biblical truth,” Julie Fagundes, campus administrator at Stone Ridge Christian Academy, said in an emailed statement. “Girls must compete against girls in sports because that is how God created us and SRC will not be complicit in a false message about sex.”

Fagundes sent a letter to parents claiming Waldorf has “a male athlete playing for their team.”

“It is really, really hurtful, I think, to take such a tiny little minority community and target them cruelly and attempting to ban them from accessing things that not just that they enjoy, but that actually help them develop into better people,” said Honey Mahogany, director of San Francisco’s Office of Transgender Initiatives.

The California Interscholastic Federation has a policy stating all students are permitted to participate in gender-separated sports.

San Francisco Waldorf has not responded to requests for comment.

Advocates for civil rights and trans inclusion say there is an essential flaw in arguments that excluding trans athletes protects the rights and safety of women and girls.

“You can actually go to Riley Gaines’ Twitter, and she’ll specifically say that it was never about [competitive] advantages,” said independent journalist Erin Reed, who covers anti-trans legislation nationwide. “And that’s why you see bans in things like chess and darts and fishing. It’s not because of any sort of hypothetical advantage that a trans person might have. It’s because it’s all about exclusion, period.”

Patel is concerned that the bans sought by these lawsuits and politicians like Trump will actually put cisgender women and girls more at risk.

“That really contradicts Title IX’s broad purpose and does nothing to protect gender equity in sports, and instead subjects women and girls to more harm, to gender policing, to scrutiny as to whether or not they are a ‘real woman or girl,’” Patel said. “And we’ve seen, especially from professional sports, the impact on Black and brown women and girls.”

For example, this summer, a Utah high school athletics association secretly investigated a female athlete — without notifying her or her parents — over questions about whether she was transgender.

Meanwhile, more than 20 states have laws banning transgender students from participating in sports consistent with their gender identity.