Judge Hears Arguments In Emergency Hearing On Mountain West Lawsuit Over Trans SJSU Volleyball Player

Denver, CO – After a three-hour emergency hearing at the Byron G. Rodgers United States Courthouse in downtown Denver, the Honorable S. Kato Crews told counsel for all involved parties that he would need time to make a ruling, but that he would do so in a "timely fashion." 

Lawyers for the plaintiffs made their arguments for why Judge Crews should grant injunctive relief prior to the start of the Mountain West Conference volleyball tournament on Wednesday. 

A dozen women are suing the Mountain West Conference, California State University System and multiple San Jose State employees over the inclusion of transgender volleyball player Blaire Fleming on the SJSU's women's volleyball team. 

The emergency hearing was set to rule on a motion brought forward by the plaintiffs, as well as a motion to intervene filed by Utah State University. 

Judge Crews, a Joe Biden nominee who was confirmed by the Democrat-controlled Senate in February in a party-line vote, ruled on Wednesday that the hearing would not include witness testimony, despite objections by the plaintiffs' counsel, so only oral arguments were presented by both sides. 

Judge S. Kato Crews, nominated by President Joe Biden, heard arguments on Thursday on the lawsuit against the Mountain West Conference centering on transgender SJSU volleyball player Blaire Fleming.

(Getty Images & Imagn Images)

Lawyers for the plaintiffs are seeking an injunction to disqualify San Jose State from competing in the Mountain West Conference tournament, disqualify Blaire Fleming from competing in the conference tournament, and/or remove the losses from the records of teams who protested by not competing against SJSU – and, subsequently, remove the wins from SJSU.

Central to Thursday's arguments was the conference's so-called "Transgender Participation Policy," which established the basis for the forfeitures that have swept through conference play as teams refused to compete against SJSU and Fleming. 

The plaintiffs argued that the Mountain West Conference violated its own by-laws by adding the TPP to the conference handbook in September without having a formal vote by conference board members. 

Lawyers for the Mountain West essentially admitted that there was no vote and that the conference staff made the decision to add the policy, which was voted on and ratified in 2022, to the handbook because of "public interest."

But that raises the question of why the Mountain West had an official policy that wasn't included in its handbook and if they have other "secret" policies that are not publicly known. 

A lawyer for Utah State University argued that while the school voted to adopt the TPP in 2022, they didn't realize the "harm" the policy would cause until the school forfeited a volleyball match against SJSU and Blaire Fleming this season. 

Judge ruled on a few issues regarding transgender San Jose State volleyball player Blaire Fleming

While the judge stated that he would rule on the motion for injunction and the motion to intervene "in a timely fashion," he did make a few procedural rulings at the start of the hearing. 

Crews declared that he would use "she/her" pronouns when talking about Blaire Fleming based on his research into the case, but didn't demand that lawyers for the plaintiffs use this language as part of their case. He also stated that his use of those pronouns should not be read as an acknowledgment that he had made a decision on Fleming's gender for the purposes of the lawsuit. 

A lawyer for the California State University system also argued that Fleming's name should not be used in open court and, instead, should be granted a pseudonym for privacy purposes. Crews denied the request, noting that it wasn't necessary to use Fleming's name because it was clear who the transgender player is on San Jose State's team by virtue of admission by the defense. 

Supporters for the plaintiffs gather outside the courthouse

Prior to the start of the hearing, several supporters of the plaintiffs in the lawsuit, including the founder of XX-XY Athletics, Jen Sey, gathered outside the courthouse. 

Some of the supporters sat in the courtroom throughout some, or all, of the proceedings. The majority of the audience donned shirts with pro-fairness in women's sports messaging.  

Emergency hearing only centered on a few issues 

It's important to remember that while the breadth of the lawsuit surrounds allegations that the defendants violated Title IX and/or the First Amendment, the emergency hearing focused only on the two motions brought forward. 

While lawyers for the plaintiffs made some of their arguments about the alleged Title IX and First Amendment violation – and defense attorneys rebutted those claims – that was not the focus of the hearing. 

While the Title IX and First Amendment portions of the lawsuit could take quite a while to play out, the judge clearly understands that the motions before him require a relatively prompt decision. 

OutKick will continue to provide updates on this developing story as we have them.