Current and former San Jose State women’s volleyball players are part of a 12-person lawsuit filed against the Mountain West and commissioner Gloria Nevarez alleging Title IX and First Amendment violations amid the controversy surrounding transgender Blaire Fleming’s roster status, per OutKick.
The lawsuit includes Spartans senior Brooke Slusser, suspended assistant coach Melissa Batie-Smooth and players from four other Mountain West schools which have forfeited games against San Jose State.
It claims the Mountain West instituted its Transgender Participation Policy to “chill and suppress the free speech rights of women athletes,” according to the lawsuit posted by Outkick.
It also aims to ban Fleming and San Jose State from participating in the conference tournament.
The Independent Council on Women’s Sports reportedly is funding the lawsuit, which was filed in the U.S. District Court for Colorado, according to the Las Vegas Review-Journal.
“The NCAA, Mountain West Conference, and college athletic directors around the country are failing women,” attorney Bill Bock, who is representing the plaintiffs, told Outkick.
“Because the administrators don’t have the courage to do their jobs, we have to ask the federal courts to do their jobs for them.”
San Jose State has been embroiled in controversy this season due to Fleming’s status on the roster.
Fleming, a redshirt senior from Virginia, is in her third season with San Jose State after transferring from Costal Carolina.
Opposing teams have forfeited games, with the school’s website listing wins via “no contest” against Boise State (Sept. 28), Wyoming (Oct. 5, Nov. 14), Utah State (Oct. 23) and Nevada (Oct. 26).
This lawsuit calls for emergency injunctive relief before the Mountain West tournament begins Nov. 27.
It ask for the “enjoining” of both the conference and San Jose State from allowing Fleming to play in the tournament, along with disqualifying San Joe State from the bracket.
The lawsuit also calls for the overturning of the Mountain West crediting teams with losses via forfeits. By removing those forfeits, the conference tournament would have a different shape.
San Jose State is second in the conference with its 11-5 mark.
This lawsuit alleges that the Mountain West created its Transgender Participation Policy on Sept. 27, one day before Boise State forfeited to San Jose State, in response to a “burgeoning controversy.”
“Rather, on information and belief, the burgeoning controversy, which Commissioner Nevarez apparently believe could lead women’s volleyball players and teams to exercise their constitutional rights to protest and boycott, caused the Commissioner and her staff to hastily draft and post on the MWC website a policy designed to penalize First Amendment protests supporting the right os women’s volleyball players in the MWC (Mountain West Conference),” the lawsuit reads.
Said policy, listed under Appendix J in the 2024-25 handbook, states schools are responsible for identifying transgender athletes and ensuring they are NCAA eligible.
“The decision as to whether a transgender athlete(s) will be permitted to participate in intercollegiate athletics for a particular MW (Mountain West) member shall be a matter of that individual institution’s discretion in the context of its interaction with the individual, the application of state law, etc,” the policy reads. “A MW member may not, however, preclude student-athletes from other MW member institutions from participation in accordance with the policy outlined herein.”
It also states that for “intraconference” matches, any transgender athlete who is declared elgible by the NCAA and is on school’s roster is allowed to participate in “all” conference contests.
“If a MW member institution’s team refuses to compete in an intraconference contest against a fellow MW member institution’s team which includes an eligible transgender student-athlete(s), the team refusing to participate shall be deemed to have forfeited the contest,” the policy states. “The forfeiting team will be charged with a loss and the opposing team credited with a win – for the purposes of Conference records, standings, tie-breaking formulas and MW championships participation.”
The lawsuit also includes details from Batie-Smoose’s Title IX lawsuit in which she alleged Fleming and a Colorado State opponent colluded to have Fleming “throw” the game and injure Slusser, who has been outspoken against Fleming. Colorado State swept San Jose State, 3-0, on Oct. 3.
Batie-Smoose also alleges head coach Todd Kress provided “preferential” treatment to Fleming.
She was suspended by the university after filing the lawsuit.
“The failure by SJSU, Kress and (senior athletics associate director Laura) Alexander to properly bring forward corroborated allegations of potential ethical misconduct, including collusion, throwing a game, and trying to physically harm Slusser raises an inference that SJSU, Kress, and Alexander sought to punish and retaliate against Slusser for filing Title IX claims referencing the SJSU Team and/or that they did not wish the allegations against Fleming to be investigated and/or that they did not want Slusser to be protected against violence,” the lawsuit reads.
Slusser, who lived with Fleming, has been critical of how the university has handled the situation, stating the players were asked not to discuss the matter publicly.
“It’s definitely something that I thought about really hard. And I think the hardest part about the whole situation is that this team really loves each other. My best friends are on this team,” Slusser told Outkick in September. “Just having to go through this breaks me, because the team is full of such loving, caring women, and to put them all through this is absolutely absurd.
“I might only have three months left ever of playing volleyball. I already used my transfer, so I can’t transfer again. It was either I walk away from volleyball forever or I kind of swallow this hard pill, suck it up and play, do what I can for my team and protect them any way I can.”
