Court Rejects Injunction in Mountain West Volleyball Dispute Over Transgender Athlete 

Timothy M. Burke, Fraternal Law Partners, tburke@manleyburke.com

This past NCAA women’s volleyball season in the Mountain West Conference (the “Conference”) was fraught with controversy over the allegation that one team, San Jose State University (SJSU), had a transgender player. Several teams had forfeited their games against San Jose State. But not until days before the Mountain West Championship Volleyball Tournament was to take place did anyone attempt to challenge the ability of SJSU to play with the transgender player on its team.

 Two weeks before the tournament was to begin, multiple players across the Conference challenged the eligibility of the alleged transgender player and the Conference’s Transgender Participant Policy. The University of Utah joined the case as an intervenor, but only arguing that the Mountain West Conference’s Transgender Player Policy violated Title IX of the Education Act Amendments of 1972.

The case was originally heard by the U.S. District Court for the District of Colorado.1 With the tournament scheduled to start on November 27th, the court oversaw an expedited briefing schedule and conducted oral arguments on an emergency motion before issuing its 28-page decision on November 25, 2024, denying the Plaintiffs’ request for an injunction to prevent SJSU from competing with its alleged transgender player as a part of its team.

The trial court was clearly bothered by the fact that Plaintiffs had not brought their action much earlier; they could have done so as much as two years earlier when the Conference’s Transgender Participant Policy was originally adopted. The court, however, did give some consideration to the merits of the legality of the Transgender Policy. Critically, the trial court noted that courts in the U.S. Tenth Circuit Court of Appeals “have generally assessed Title IX discrimination claims under the same legal analysis as Title VII claims.”2  The trial court also relied on the U.S. Supreme Court case, Bostock v. Clayton County, 590 U.S. 644, 659 (2020). That case was an examination of Title VII in which the court noted that, because Title VII prohibits employers from taking certain actions because of “sex,” “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”3

Based on the Bostock rational, the trial court concluded that “plaintiffs and USU have failed to meet their burden to establish a likelihood of success on the merits of their Title IX and equal protection claims.”4 Both because of their delay in bringing their claims in a timely fashion and because of their failure to demonstrate a likelihood of success on the merits, the court denied the claims for an injunction.5

Plaintiffs promptly filed for an emergency motion for injunction pending appeal before the U.S. Court of Appeals for the Tenth Circuit. That court quickly issued a four-page order upholding the district court’s decision, emphasizing the stringent standards required for injunctive relief.

The appellate court noted first that for Plaintiffs to prevail, they must show they are “likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.”6 Because the Plaintiffs failed to satisfy any of the critical factors, the court declined to directly address the likelihood of success on the merits, even though it noted:

Plaintiffs’ claims appear to present a substantial question and may have merit. But plaintiffs have not established clear entitlement to relief, and however potentially meritorious, their showing does not rise to the level of clear entitlement under the appropriate standards.7

The Tenth Circuit’s decision left the broader legal questions surrounding transgender athlete policies unresolved, and a full determination on similar challenges would have to wait for future cases. The controversy has spotlighted the complex legal and social issues surrounding transgender participation in sports, ensuring continued debate and litigation in the coming years.

1 Slusser v. Mt. W. Conference, 2024 U.S. Dist. LEXIS 214364 (Nov. 25, 2024).

2 Id. at *25.

3 Id. at *26 (citing Bostock v. Clayton Cty., 590 U.S. 644 (2020)).

4 Id. at *29.

5 Id. at *31–32.

6 Van Kirk v. Mountain W. Conf., No. 24-1461 (10th Cir. Nov. 26, 2024), at *2.

7 Van Kirk, Case No. 24-1461  at 4.