Volleyball players sue Mountain West over transgender controversy

The complaint, obtained by the Las Vegas Review-Journal, was filed in the U.S. District Court for Colorado in pursuit of financial damages and an emergency injunction ahead of the Mountain West volleyball tournament, which is scheduled for Nov. 27-30 at UNLV’s Cox Pavilion.

The large group of plaintiffs includes San Jose State co-captain Brooke Slusser, former San Jose State assistant Melissa Batie-Smoose and at least one player from the four Mountain West schools who have forfeited a combined six wins to San Jose State this season (Boise State, Wyoming, UNR and Utah State).

San Jose State (13-5, 11-5) is second in the league standings, and only six teams qualify for the conference tournament. The plaintiffs are asking that San Jose State senior outside hitter Blaire Fleming be prohibited from traveling to the tournament.

Other suggestions include disqualifying San Jose State or removing the losses from the teams who have refused to compete against the Spartans.

The plaintiffs claim they are having their constitutional right to free speech and equal protection infringed upon because of the conference’s and the NCAA’s transgender inclusion policies, as well as their Title IX privileges.

Bill Bock, a sports attorney who previously served as the general counsel of the U.S. Anti-Doping Agency, is representing them.

The other defendants are the California State University’s board of trustees; San Jose State senior associate athletic director for student-athlete wellness Laura Alexander; San Jose State volleyball coach Todd Kress; and San Jose State senior director of media relations Michelle Smith McDonald.

“We have not been served with the lawsuit,” San Jose State said in a statement issued to the Review-Journal Wednesday evening. “We just obtained a copy of the 132-page document at 3:58 pm. We will not comment at this time.”

The Mountain West issued a statement Thursday that read:

“The Mountain West Conference prioritizes the best interests of our student-athletes and takes great care to adhere to NCAA and MW policies. 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.”

Policy update

One of the larger allegations in the suit is that the Mountain West updated its handbook without announcement or proper approvals on the same day that Boise State became the first member school to cancel a match against San Jose State in September.

The handbook says that any school refusing to compete against a conference team with an eligible transgender student-athlete will be charged with a loss in the league standings.

The handbook also includes what the filing describes as a “don’t ask, don’t tell” policy, which requires questions about a transgender player’s eligibility to be directed to the specific university instead of the league or the NCAA. It adds that schools are not obligated to notify the conference or NCAA of transgender players due to “privacy considerations,” and says schools can simply say all of its athletes are eligible if asked about the gender identity of a player.

The filing describes those provisions as “inconsistent with free speech.”

Treatment by coach

Slusser, who has been outspoken about her desire for Fleming to be removed from the team since she joined a separate lawsuit against the NCAA in September, claims she was repeatedly silenced by San Jose State personnel who allegedly hid Fleming’s gender status from her.

She claims that Kress now withholds communication and coaching. Slusser also claims Kress has spoken with a private lawyer as part of an alleged effort to have her removed from the team.

The lawsuit alleges Slusser and her teammates have sustained extreme and unusual bruising from Fleming’s spikes in practice, but Kress has allegedly become “angry” when approached by Slusser about the issue.

Two other San Jose State players claim they were passed over for athletic scholarships they were promised by Kress, which allegedly went to Fleming instead.

Batie-Smoose claims her employment was wrongfully terminated after she filed a Title IX complaint about unfair treatment toward Fleming.

Volleyball players at Wyoming, Boise State, Utah State and UNR claim they received pressure from the Mountain West and their respective schools not to speak about their issues with the participation of transgender athletes in sports.

Kaylie Ray, a Utah State player, says her team has been “pressed” to agree to a statement against protesting at the Mountain West tournament. Ray also claims she’s heard the conference has been in communication with coaches and athletic departments, “informing them they need to get their players in line.”

Alleged Colorado State collusion

The filing expands upon a previous accusation that Fleming colluded with a Colorado State player to throw a match Oct. 3 and attempt to injure Slusser.

Kress denied this claim in an ESPN story referenced in the lawsuit.

In the filing, Slusser claims a threatening social media message about her was sent to a teammate the night before the match. Batie-Smoose allegedly suspected Fleming could be involved, prompting Kress to find that she had left the hotel.

Fleming went on to have “by far the worst game of the season,” and allegedly played out of position on purpose. Slusser claims Fleming winked at an opposing player who she softly tipped the ball to before it was allegedly spiked at Slusser.

A San Jose State player eventually came forward to coaches and said she heard Fleming discuss plans to “blast” Slusser in the face, but Kress never reported the issue for it to be investigated.

The lawsuit also claims Fleming was never disciplined for leaving the hotel and was allowed to stay in Colorado after the team left.

Contact Callie Fin at cfin@reviewjournal.com. Follow @CallieJLaw on X.