Purported transgender player on San Jose State women's volleyball team can compete in championship series, judge rules

SAN JOSE, Calif. — A bid by the co-captain of San Jose State University’s women’s volleyball team to get a purportedly transgender teammate banned from the Mountain West Conference Championship has failed.

Co-captain Brooke Slusser and her co-plaintiffs waited too long to seek an emergency court order barring the player from the tournament, which starts Wednesday, Colorado federal court judge S. Kato Crews ruled Monday.

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 over the player’s presence on the team — asked the court Nov. 15 for an emergency injunction. They had requested a court order banning the player from future games, including the championship, and that the conference’s policy allowing transgender players be rescinded. They also wanted Spartan wins that occurred via forfeit canceled, plus a recalculation of conference standings based on those requested changes.

Crews said an emergency injunction “is an extraordinary remedy,” and should only be granted if clearly shown to be necessary to prevent an irreparable harm, and that if it were considered in a trial, would have a “substantial likelihood of success.”

Teams started forfeiting against San Jose State in late September, the judge noted. The “delay” by Slusser and the others in filing the lawsuit and seeking the emergency order related to the tournament “weakens their arguments regarding irreparable harm,” Crews wrote. The player’s purported transgender status was revealed via news coverage this spring, and the plaintiffs “certainly had knowledge of this alleged player when the string of member institutions started forfeiting matches” in September, the judge added.

The lawyer for Slusser and her co-plaintiffs filed an appeal of the order Monday shortly after it was released. The filing did not detail the grounds for appeal.

This news organization is not naming the player, as they have not confirmed their status. Crews noted that no defendants in the lawsuit dispute that a transgender woman is on the Spartan team.

Slusser and the others sued San Jose State officials, the conference and other defendants in Colorado federal court Nov. 13. For courts, temporary injunctions like those sought in this case are intended to “preserve the status quo” until a trial can provide a legal resolution, Crews said. Under accepted court precedent, that status quo should be “the last peaceable uncontested status existing between the parties before the dispute developed,” Crews wrote.

That peaceable status, according to the judge, had existed after the conference’s transgender policy was ratified in 2022 and after the player began competing for the Spartans that year, the judge wrote. With regard to the policy, that status lasted until Slusser and the others filed their lawsuit, the judge wrote. With regard to the player, it was not until this past spring, at the earliest, that questions arose around their gender identity, Crews wrote.

Granting the injunction would have altered the status quo because the player has been on the Spartan roster since 2022, and throughout the 2024 season, and the conference’s Transgender Participation Policy has been in effect since August 2022, the judge said.

The request for an emergency injunction claimed federal Title IX education law prohibiting sex-based discrimination “protects women, not men who identify as women.” However, Crews wrote, court precedent, including from the U.S. Supreme Court, suggests Slusser and her co-plaintiffs “have failed to show a likelihood of success on the merits of these claims.”

Crews also said that the requested injunction would have led to an “eleventh-hour shake-up” for the championship tournament.

The Spartan team over the weekend secured the No. 2 seed spot in the six-team 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.

Slusser earlier joined a similar lawsuit, in Georgia federal court, against the National Collegiate Athletic Association over its rules allowing certain transgender women to play women’s sports.

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