Judge refuses to hear witnesses’ arguments in emergency hearing over Mountain West Conference’s covert adoption of ‘transgender player policy’

CV NEWS FEED // Judge S. Katon Crews on November 21 prevented witnesses from testifying and only heard lawyers’ arguments in a lawsuit against a collegiate athletic conference’s covert adoption of a “transgender player policy” that allowed male player Blaire (Brayden) Fleming to compete on San Jose University’s volleyball team.

Outkick reports that four of the plaintiffs, including San Jose University volleyball team co-captain Brooke Slusser and assistant head coach Melissa Batie-Smoose, were set to testify at the hearing against Mountain West Conference, the regional athletic conference comprising eight Western states. However, Crews, a Biden appointee, decided on November 20 that the hearing would not include witness testimony.

The plaintiffs’ lawyers argued that the Mountain West Conference’s adoption of the “Transgender Player Policy” violates Title IX and the players’ First Amendment Rights. Most importantly, they pointed to the fact that the Conference quietly added the policy to the handbook in September.

Journalist Dan Zaksheske, who covered the event for Outkick, posted to his X account that lawyers stated, “Our clients should not be bound by a rule that was hidden from them.” 

Outkick states that Mountain West’s lawyers admitted that adding the policy to the handbook was not chosen by vote, and it was a choice made by conference staff. The policy was voted on and ratified in 2022, but it was only added to the handbook in September 2024, without notice, after the controversy around the San Jose transgender player started.

Zaksheske posted to his X account that the plaintiffs’ lawyers responded to this admission.

“In rebuttal, plaintiffs lawyer argues that the defense just admitted to a violation of Mountain West bylaws to add ‘Transgender Participation Policy’ to its handbook on the same day Boise State forfeited against SJSU,” the post said.

Boise State was the first team to forfeit against San Jose.

Outkick observes, “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.”

The plaintiffs’ lawyers requested injunctive relief before the Mountain West Conference tournament on November 27 for three things: to disqualify San Jose State’s male player Blaire (born Brayden) Fleming from playing, to overturn losses of teams who forfeited against San Jose, and to overturn the corresponding wins of San Jose.

Samantha Kelley, the founder of and president of FIERCE Athlete and a former varsity soccer player, offered a comment to CatholicVote on the adoption of the policy. She stated that she and her organization “stand for the integrity of women’s sports and also the anthropological difference between men and women.”