An emergency appeal to a Biden-appointed federal judge’s ruling that will let a trans athlete compete at the Mountain West women’s volleyball tournament was denied on Tuesday.
Colorado District Judge Kato Crews ruled on Monday that San Jose State senior Blaire Fleming, who has been identified as a biological male in multiple lawsuits, is eligible to compete after multiple players contested that Fleming should not be allowed to play in Las Vegas this week.
The Independent Council on Women’s Sports (ICONS) filed an emergency appeal to the ruling to the 10th Circuit Court of Appeals. But the 10th Circuit agreed with Crews’ ruling, in a decision that came Tuesday afternoon. Crews rejected the request for an emergency injunction, finding the players and others who challenged the league’s policy for allowing transgender athletes to participate should have filed the complaint earlier.
NCAA women’s volleyball players Brooke Slusser, Kaylie Ray, Macey Boggs, Sierra Grizzle, Jordan Sandy, Katelyn Van Kirk and Kiersten Van Kirk were all listed on the complaint and the appeal to have Fleming removed. Slusser is Fleming’s San Jose State teammate, and has alleged she was made to share living spaces and changing spaces with Fleming while the university withheld Fleming’s natural birth sex from Slusser and other players on the team.
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“It is shameful that the administrators at the Mountain West Conference and the NCAA are unwilling too do their jobs, which is solely to protect fair competition and the safety of athletes who compete in college sports. However, because Mountain West Conference Commissioner Gloria Nevarez and NCAA President Charlie Baker won’t do their jobs and are apparently afraid to stand up for the rights of women student-athletes, we are forced to ask the federal courts to do their jobs for them,” said ICONS legal counsel Bill Bock.
San Jose State provided a statement to Fox News Digital saying the university, saying it was “gratified” with Crews’ ruling.
“San José State University 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. We are gratified that the Court rejected an eleventh-hour attempt to change those rules,” the statement read.
Bock told Fox News Digital after the appeal was denied that the conference “have delayed justice, but will not escape justice.”
“The Court of Appeal’s statement that the Plaintiffs appear to have presented a substantial and meritorious legal claim calls into question the legal reasoning of the district court and confirms Plaintiffs’ conviction that the harm caused to numerous women and women’s teams by a trans-identifying male competing in Mountain West Conference women’s college volleyball stems from illegal Conference and NCAA rules which are resulting in substantial and continuing violations of federal law. Plaintiffs look forward to ultimately receiving justice in this case when they prove these legal violations in court, and Plaintiffs look forward to the day when men are no longer allowed to wreak havoc in women’s sport,” Bock said.
Biden’s judicial appointments have been a point of controversy during his presidency. By the end of his first year in office, Biden had nominated 73 individuals for federal judgeships, one more than Donald Trump during the same point in his presidency.
President Joe Biden speaks after pardoning the national Thanksgiving turkey, Peach, during a pardoning ceremony on the South Lawn of the White House in Washington, Monday, Nov. 25, 2024. (AP Photo/Susan Walsh)
Crews was one of Biden’s appointees who was confirmed, and ended up presiding over this case. When the hearing was held last Thursday, Crews dedicated the first 45 minutes of the hearing debating what pronouns to use when referring to Fleming or whether the player’s name should be used for security and safety reasons.
However, safety has been just as much a concern for Fleming’s female teammates.
Slusser previously told Fox News Digital that the situation involving Fleming and the athlete’s protection by San Jose State and the governing institutions of their sport has left her and her teammates feeling “unsafe,” and has even resulted in moments where players have cried.
“I think anyone can see that’s in my circle and in the gym that they’re not here to support me. They’re here to support Blaire, and they have decided that they will basically do anything to keep supporting Blaire and to not be there for me and my needs,” Slusser said. “I just have decided you can’t really trust anyone here.”
San Jose State suspended associate head volleyball coach Melissa Batie-Smoose, who filed a Title IX complaint against the school alleging that San Jose State showed favoritism for Fleming at the expense of the women on the team.
“After we found out that she was released, a lot of the team just kind of broke down and was kind of freaking out, and even one of my teammates was like, ‘I don’t feel safe anymore,’ because there’s no one now that we feel like we can go and talk to about our concerns or our actual feelings and can actually speak freely in front of,” Slusser said.
Slusser says she does not feel safe speaking with anyone else involved in the program, not even head coach Todd Kress.
“You can’t truly voice how you’re feeling without them just trying to cover it up or act like it’s all OK. With Melissa, you could voice how you felt, and she could comfort you and validate your feelings and at least make you feel heard compared to the other coaches,” Slusser said.
The San Jose State University Spartans are flanked by Moby Arena security, campus police and their own private guard during an NCAA Mountain West women’s volleyball game against the Colorado State University Rams at Moby Arena in Fort Collins, Colo., on Thursday, Oct. 3, 2024. (Santiago Mejia/San Francisco Chronicle via Getty Images)
Mountain West Commissioner Gloria Nevarez says the conference did not find sufficient evidence to confirm the claims in the Title IX complaint. The complaint alleged Blaire Fleming conspired with a player on Colorado State to influence the outcome of the game and have Fleming’s teammate Brooke Slusser hit in the face with a ball during that game.
The letter did not directly address the notion that there was a conspiracy to have Slusser hit in the face. The letter simply refers to all the allegations listed in the complaint as “manipulation of the competition.” Nevarez says the conference’s investigation included interviews with head coaches and student-athletes initiated by both institutions. However, the letter does not specifically state which individuals had been interviewed. The conference has denied multiple requests from Fox News Digital to name the individuals who were interviewed.
Those same allegations have been cited in a recent lawsuit that Slusser has filed against The Mountain West and San Jose State. Slusser’s legal team has since provided a statement to Fox News Digital questioning the validity of the conference’s investigation.
Still, Crews has ensured that Slusser, her teammates and all the other players at the Mountain West Tournament will have to share a tournament with Fleming in Las Vegas this week.
A Mountain West Conference spokesperson told Fox News Digital last week it planned to crown San Jose State champions if it reached the final and the opposing team there forfeited. Four teams in the conference have already forfeited games to San Jose State, including two that will compete for the right to face the Spartans in the semifinal round.
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Blaire Fleming of the San Jose State Spartans attempts to block a shot during the first set against the Air Force Falcons at Falcon Court at East Gym on October 19, 2024 in Colorado Springs, Colorado. (Andrew Wevers/Getty Images)
Utah State and Boise State are set to play in the quarterfinal match that will determine who faces Fleming and Slusser in the next round.
Boise State was so unwilling to play San Jose State during the regular season that it forfeited two scheduled matches against the Spartans, taking a pair of conference losses on its record. Meanwhile, Utah State, which only forfeited one game, has joined a recent lawsuit against The Mountain West over the presence of Fleming.
San Jose State has repeatedly defended the presence of Fleming on the team.
“Our athletes all comply with NCAA and Mountain West Conference policies and are eligible to play under the rules of those organizations. Our volleyball team members have earned the right to compete, and we are deeply disappointed for them and with them that they are being denied those opportunities through cancellations and forfeits. We are also proud of how they have persevered through these challenges on the court,” a statement provided to Fox News Digital by a university spokesperson said.
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