A federal lawsuit filed Wednesday in Colorado against the Mountain West and its commissioner, Gloria Nevarez, seeks emergency injunctive relief that would declare a transgender San Jose State women’s volleyball player ineligible for the upcoming conference tournament in Las Vegas on Nov. 27-30.
The plaintiffs include San Jose State co-captain Brooke Slusser, assistant coach Melissa Batie-Smoose and two former Spartans players, as well as players from four other conference schools. They allege that the school and conference violated the U.S. Constitution and Title IX by allowing a transgender athlete to play for a women’s sports team and by suppressing free speech rights of those that spoke out in protest.
San Jose State University, its head volleyball coach Todd Kress, and two school administrators, as well as the trustees board for the California State University system, are also named as defendants.
The controversy flared in September when Slusser, who transferred to San Jose State prior to the 2023 season, joined a federal lawsuit challenging the NCAA’s transgender policy and went public with assertions about her teammate’s gender identification. In the lawsuit, Slusser said the teammate, who was also her roommate, “was born male and identifies as a ‘transgender woman,’” and came out to her during a conversation in April.
Slusser has since spoken with numerous media outlets about her experience with her teammate. The Athletic is not naming the athlete because the athlete has not publicly identified.
A Mountain West spokesperson did not return a message seeking comment.
“The Mountain West Conference prioritizes the best interests of our student-athletes and takes great care to adhere to NCAA and MW policies,” the conference said in a Thursday statement. “While we are unable to comment on the pending litigation of this particular situation, we take seriously all concerns of student-athlete welfare and fairness.”
In October, Nevarez told the Associated Press: “The student-athlete (in question) meets the eligibility standard, so if a team does not play them, it’s a forfeit, meaning they take a loss.”
“We have not been served with the lawsuit. We obtained a copy of the 132-page document late Wednesday afternoon,” SJSU said in a statement. “We will not comment at this time.”
As the season began, several schools — Southern Utah, Boise State, Utah State, Wyoming and Nevada — forfeited matches with the Spartans.
The lawsuit alleges that the Mountain West’s handbook did not originally include a policy for transgender athletes, but added one on Sept. 27, around the same time the controversy exploded, that stated that schools would have to forfeit if they refused to play a match.
The lawsuit also alleges that San Jose State officials in an April 2024 meeting instructed players not to speak about their teammate’s sex or gender identity outside of the team.
According to the complaint, shortly after Slusser first went public, an administrator reminded her that “speaking disrespectfully against the school or the NCAA would be against your letter of intent and could affect your scholarship,” which she took as retaliation.
Two of the plaintiffs, former San Jose State walk-ons Elle Patterson and Alyssa Sugai, said in the lawsuit that they lost potential scholarship opportunities to their transgender teammate in previous seasons because they were not getting as much playing time while playing the same position. Patterson told her coaches she could not afford to pay her own way for another season and left the team. Sugai transferred.
Neither knew the player identified as transgender when they arrived on campus, they said in the lawsuit.
“The reason that (the transgender athlete) outperformed Sugai was not effort but was Retained Male Advantage, which Sugai could not match because Sugai is a woman,” the suit says.
The lawsuit says Batie-Smoose, an associate head coach under Kress for two seasons, observed that Kress was becoming “hostile” toward Slusser and herself after she raised concerns about ”preferential treatment” for the transgender athlete. On Oct. 29, Batie-Smoose filed a Title IX complaint with San Jose State, the Mountain West and NCAA alleging discrimination against women and gave an interview to an Australian website. Days later, the school suspended her.
The NCAA’s transgender participation policy, adopted in 2022, states that transgender women may compete on women’s teams after completing one calendar year of testosterone suppression treatment if they meet their sport’s standard for documented testosterone levels prior to regular-season competition.
(Photo: David Buono / Icon Sportswire 2023)