ICONS Sends Letter To Mountain West Schools, Calls For Action Against SJSU, Trans Athlete Blaire Fleming
The Independent Council on Women's Sports (ICONS) is leading the charge in a lawsuit against the NCAA to safeguard women's sports from the participation of transgender athletes.
ICONS just penned an exclusive letter, sent to OutKick, urging the Mountain West Conference and schools under the conference to step up and defend women from the potential risks of competing against men and save women's rights under Title IX.
Playing under the conference is San Jose State University, which currently allows Brayden "Blaire" Fleming to compete against women and holds an undefeated 9-0 record after defeating Fresno State in a four-set victory on Tuesday.
Blaire Fleming Continues To Dominate Women's Volleyball (CREDIT: SJSU Athletics)
((CREDIT: SJSU Athletics))
As OutKick's Mark Harris reported, ICONS previously sent a demand letter to the NCAA to keep women's sports exclusive to female athletes.
OutKick has extensively covered ICONS' battle to protect women's rights under Title IX, including the latest development featuring Brooke Slusser, a teammate of Blaire Fleming's at SJSU, who joined the lawsuit against the NCAA for allowing Fleming's inclusion.
ICONS sent its letter to every Mountain West Conference School, addressing the conference president for failing to "act immediately and decisively to protect and support women volleyball players and their rights to equal athletic opportunities and fair and safe competition."
It was another major step by the organization to stand up for women's rights.
ICONS Puts The Pressure on SJSU's Conference Regarding Blaire Fleming
ICONS' latest letter highlighted conversations that the group has had with "distraught student-athletes and their parents, coaches, and administrators throughout the Mountain West Conference (MWC) regarding a crisis in MWC women’s volleyball."
"Our goal is to protect the female category in sports for every woman and girl at every level," the letter to the conference read.
Schools Included In The MWC
- Air Force
- Boise State
- Colorado State
- Fresno State
- Nevada
- New Mexico
- San Diego State
- San Jose State
- UNLV
- Utah State
- Wyoming
Concern regarding Fleming's inclusion has stretched beyond SJSU.
Other universities, such as Southern Utah and the University of Wyoming, have discussed competing against SJSU.
Southern Utah canceled a match against SJSU on Sept. 14, though the institution's reasoning was not explicitly stated.
READ: Teammate Of SJSU Transgender Volleyball Player Blaire Fleming Joins Lawsuit Against NCAA
The University of Wyoming held discussions about forfeiting its upcoming Oct. 5 match against Fleming and the Spartans but ultimately stuck with competing.
ICONS called out the conference for "violating federal law by implementing and enforcing the NCAA transgender eligibility policies."
"To protect your women student-athletes your school’s team must do the same and more," the letter said, referencing Southern Utah's withdrawal over the dangers of permitting Fleming to compete against women.
Male volleyball players competing against women have posed physical dangers, notably in the case of Payton McNabb, as previously covered at OutKick.
In 2022, the 17-year-old sustained a devastating head and neck injury while playing against a transgender volleyball player.
Regarding Fleming, the 6-foot-1 player's exceptional leaping and spiking abilities displayed an outright advantage over women, with some of his spikes traveling at 80 mph.
ICONS demands swift action by Mountain West Conference to protect women from trans athletes. (Photo by Darryl Oumi/Getty Images)
The regulation net height for women's college volleyball is 7 feet 4 1/8 inches, while for men's college volleyball, it is 7 feet 11 5/8 inches.
ICONS highlighted those physical dangers in its letter, putting the onus on the conference to take action.
"You must act immediately to put a stop to the injustice which you are condoning and supporting," the letter states.
"Study after peer-reviewed study has shown clear performance advantages for males in sport pre-puberty. Studies also clearly show that male advantage continues to exist even after attempts to suppress testosterone.
"Therefore, due to enduring sex-based physical differences between men and women, the only way sport can be safe, fair and equal for women is to maintain a protected female category that excludes male competitors. "
ICONS also highlighted the concern that men have been present on women's teams, raising issues regarding locker room privileges. This has led to serious mental and emotional damage for women who have suffered through sexual assault. Additionally, cases of trans athletes have involved exposing male genitalia without consent.
"We expect you to act immediately to comply with the law and your duty to protect your women athletes, this includes immediately finding Blaire Fleming (and any other male) ineligible to compete in MWC women’s competitions, withdrawing from any competition in which any male competes, and public rejection of the NCAA TEP (Transgender Eligibility Policy)."
READ THE FULL LETTER HERE:
Dear Mountain West Conference University President,
The Independent Council on Women’s Sports (ICONS) urgently demands that you act immediately and decisively to protect and support your women volleyball players and their rights to equal athletic opportunities and fair and safe competition which are guaranteed by Title IX and the Equal Protection Clause of the Fourteenth Amendment.
ICONS is a network and advocacy group committed to ensuring the next generation of women and girls deserve the opportunity to be champions. Our network spans all levels of sport and includes thousands – Olympians and professional athletes, collegiate and high school athletes, parents, coaches and administrators. Our goal is to protect the female category in sports for every woman and girl at every level.
Over the last few weeks, we have spoken with distraught student-athletes and their parents, coaches, and administrators throughout the Mountain West Conference (MWC) regarding a crisis in MWC women’s volleyball. Currently, the MWC, an NCAA member athletic conference, of which all but one of your schools is a public university,1 San Jose State University (SJSU), a California state university and MWC member school, and the National Collegiate Athletic Association (NCAA), are violating federal law by implementing and enforcing the NCAA transgender eligibility policies (TEP) and permitting a transgender-identifying male, Blaire Fleming, to compete on the SJSU women’s volleyball team.
The SJSU women’s volleyball team with Fleming competing is already 8-0 going into the first game of the MWC schedule this evening against Fresno State. Already one team, Southern Utah University, has withdrawn from a scheduled competition against SJSU rather than compete against the Fleming-led SJSU team. To protect your women student-athletes your school’s team must do the same and more.
As you may know, ICONS is supporting an ongoing lawsuit brought by nineteen courageous women student-athletes against the NCAA and the University System of Georgia (USG) in federal district court in Georgia challenging the NCAA’s egregious TEP and USG’s implementation of the NCAA TEP in collegiate competitions in Gaines, et al. v. NCAA, et al.
Yesterday, Brooke Slusser, a senior co-captain on the SJSU women’s volleyball team authorized the filing of an amended complaint in the Gaines lawsuit which sets forth her claims that the NCAA TEP is unlawfully allowing Fleming to compete on the SJSU women’s volleyball team putting women at risk of physical injury in practices and games. Brooke Slusser describes terrorizing practices and games in which a man is smashing volleyballs into the faces and bodies of young women at speeds of over 80 mph and making a mockery of fair competition.
Your disregard of federal law, support of the unlawful NCAA TEP, and authorizing males to compete on women’s teams of MWC members is putting young women to whom you have an undeniable legal duty, including Fleming’s teammates and women student-athletes at your school, at grave risk of concussions and other injuries, as well as denying women at your school their right to compete on equal terms in comparison to men and to win in college sports. You must act immediately to put a stop to the injustice which you are condoning and supporting.
In United States v. Virginia (VMI), 518 U.S. 515, 532–34 (1996), the U.S. Supreme Court, per Justice Ruth Bader Ginsberg, determined that sex-conscious policies must be based on biology, not stereotypes about sex, and must not disadvantage either sex. Judge Ginsberg recognized "enduring" and "inherent differences" between men and women to be a "cause for celebration," and prohibited these differences from being used as a method to "perpetuate . . . inferiority." State action that "closes a door or denies opportunity to women" must be supported by an "exceedingly persuasive" state justification. Id. The NCAA TEP, which allows men to rely upon their enduring and inherent athletic performance advantages to take women’s opportunities and put them at physical risk, fails this test and the Supreme Court’s direction in VMI.
It is past time for the MWC and for your universities to acknowledge the overwhelming scientific evidence demonstrating that male-female performance differences exist from the earliest stages. Study after peer-reviewed study has shown clear performance advantages for males in sport pre-puberty. Studies also clearly show that male advantage continues to exist even after attempts to suppress testosterone. Therefore, due to enduring sex-based physical differences between men and women, the only way sport can be safe, fair and equal for women is to maintain a protected female category that excludes male competitors. The moment male students-athletes are allowed to invade women’s spaces and sports, whether based on "gender identity" or any other rationale, women are immediately discriminated against on the basis of sex in violation of Title IX and constitutional equal protection.
Additionally, allowing men in women’s safe spaces including locker rooms violates Title IX, see 34 C.F.R. § 106.33 (requiring "separate" locker rooms for females), and the constitutional biological privacy protections recognized by the Supreme Court in the VMI case. (Please view the testimony of five Gaines case Plaintiffs, linked below, which describes their devastating experiences of being required to share a locker room with a male.)
You should also understand that following the Gaines lawsuit brought against the NCAA in federal court in Atlanta, Georgia, and supported by ICONS, the NCAA has been running for cover and will no longer support you, the MWC, or your university in implementing the NCAA’s illegal TEP.
The NCAA used to tell member institutions that its TEP was mandatory, however, after being sued in the Gaines case NCAA President Charlie Baker recently wrote a letter to members of the United States Senate dated August 21, 2024, in which he claimed that the NCAA TEP is no longer mandatory. President Baker wrote in part: "The NCAA’s transgender student-athlete participation policy is not mandatory, and federal, state and local laws supersede the Association’s policy. Schools may also choose to operate in a different way due to institutional values."
In other words, applying the illegal and scientifically indefensible NCAA TEP is now up to you and you alone. You cannot expect any support from the NCAA if you are sued for constitutional or Title IX violations for implementing the NCAA TEP. This statement by President Baker fully guts any comprehensible rationale for the NCAA TEP. You and your University now implement the NCAA TEP at your direct legal peril.
The NCAA’s August 21, 2024, legal retreat from its TEP is not surprising. The NCAA had previously sought to justify its policy by relying upon the Biden Administration Department of Education (DoE) Title IX Rule (promulgated early this year to be effective Aug. 30, 2024) which sought to equate "gender identity" to "sex" under Title IX and to require schools to mandate that school activities previously separated by sex be open to individuals on the basis of gender identity rather than sex.
This misguided legal theory of the Biden Administration, which undergirds the NCAA TEP, has during the months of July and August suffered an unequivocal legal defeat of epic proportions—seven district courts and three circuit courts of appeal have preliminarily enjoined enforcement of the DoE Rule because it is inconsistent with the clear meaning of Title IX.2 The only outlier court was the Northern District of Alabama, and in that case the Eleventh Circuit enjoined enforcement of the Rule pending appeal.3 In fact, all nine Supreme Court Justices accept that the plaintiffs challenging the DoE Rule "were entitled to preliminary injunctive relief as to three provisions of the rule, including the central provision that newly redefines sex discrimination to include discrimination on the basis of sexual orientation and gender identity." Dep’t of Educ. v. Louisiana, 144 S. Ct. 2507, 2509–10 (Aug. 16, 2024).
The blizzard of decisions enjoining the DoE Rule, with which the NCAA TEP is consonant, is the transparent motivator for the NCAA’s legal retreat. And the NCAA’s legal retreat leaves you, the MWC, and your school, holding the bag if you implement the NCAA TEP in any fashion or allow any male to compete on a women’s team in collegiate competition.4
Policies allowing males to compete in female categories or access female locker rooms are simply untenable scientifically and legally. From the college athletes who have filed lawsuits against the NCAA to the high school girls fighting back in Connecticut, female athletes and their parents have found their voices.
We are watching closely the response of the MWC and each of your institutions. It is time for you to act to reject the NCAA TEP, to uphold the legal rights of the female student-athletes at each of your schools and to prevent men (whether trans-identifying or not) from competing in women’s sport. We expect you to act immediately to comply with the law and your duty to protect your women athletes, this includes immediately finding Blaire Fleming (and any other male) ineligible to compete in MWC women’s competitions, withdrawing from any competition in which any male competes, and public rejection of the NCAA TEP.
ICONS stands ready to support you in your efforts, we invite you to reach out with questions and concerns.
Respectfully,
ICONS Co-Founders
Kim Jones and Marshi Smith
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