By Scott White, J.D.[1]
On November 25, 2024, United States District Court Judge Kato Crews denied a request from plaintiffs seeking an injunction against the Mountain West’s Transgender Participation Policy.[2] The complaint centered around a policy enacted by the Mountain West in 2022 which states:
If a MW member institution’s team refuses to compete in an intraconference contest against a fellow MW member institution’s team which includes an eligible transgender student-athlete(s), the team refusing to participate shall be deemed to have forfeited the contest. The forfeiting team will be charged with a loss and the opposing team credited with a win – for the purposes of Conference records, standings, tie-breaking formulas and MW championships participation.
The plaintiffs claimed that a player on the San Jose State University (SJSU) volleyball team was a trans woman who competed in matches for SJSU beginning in 2022. This player competed in games for SJSU during the 2022 and 2023 seasons without issue. However, in the spring of 2024, an article was published that claimed a player on SJSU’s team was a trans woman.
In response to this reporting, players from Southern Utah University (a nonconference institution, who is not a party in the case) withdrew from a game scheduled against SJSU. This set off a “domino” of forfeitures by Mountain West teams, beginning with Boise State’s forfeiture of a match scheduled for September 28. Volleyball teams from the University of Wyoming, Utah State University, and the University of Nevada-Reno followed suit, declining to play against SJSU in Mountain West conference play. The Mountain West applied the Transgender Participation Policy to all these scheduled matches, and teams were assigned a loss for each game they refused to play.
A group of volleyball athletes, including Brooke Slusser, a player from SJSU, filed a complaint on November 13, 2024, alleging that the Mountain West’s Transgender Participation Policy violated Title IX and the First Amendment. Utah State University, one of the institutions that forfeited to SJSU, intervened in this lawsuit, and the court noted that they were the only Mountain West team to officially join in the complaint. Two days after they filed the complaint, the plaintiffs filed an emergency motion seeking an injunction to immediately rescind the portion of the Transgender Participation Policy that mandated forfeits for the teams who declined to play their scheduled matches against SJSU. The plaintiffs also sought an injunction to prevent the SJSU athlete in question from competing in the Mountain West conference tournament, which was scheduled to begin on November 27.
Judge Crews began his opinion by describing the burden placed on plaintiffs seeking emergency injunctive relief, calling it “an extraordinary remedy which should only be granted when the moving party clearly and unequivocally demonstrates its necessity” (p. 11). In the Tenth Circuit, a plaintiff seeking an injunction must clearly establish four elements: “(1) the party will suffer irreparable injury without the injunction; (2) the threatened injury outweighs whatever damage the injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood of success on the merits” (p. 11, citing Citizen Band Potawatomi Indian Tribe of Okla., 883 F.2d at 889).
The short two-week period between the filing of the complaint and the requested start date of the injunction became an issue for Judge Crews, who remarked that the case had proceeded in “rocket fashion” since the complaint was initially filed (p. 2). The court pointed to the fact that the Mountain West adopted the Transgender Participation policy two years prior to the filing of the complaint, which suggested that the injunction would disrupt (rather than protect) the status quo. This finding meant that the plaintiffs were required to make a “strong showing” that the likelihood of success on the merit and the balance of harm fell in their favor.
Judge Crews found that the plaintiffs did not meet this burden, particularly when it came to their probability of success on the merits of the case at trial. He cited the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., Ga., 590 U.S. 644 (2020), to support his finding that “that ‘sex’ under Title IX’s prohibitions includes discrimination based on an individual’s trans status or sexual orientation” (p. 23). He noted that the plaintiff’s Title IX theory, which focused on the harm faced by the plaintiffs because of the Transgender Participation Policy, “directly conflicts with Title IX’s prohibition on discrimination against trans individuals” (p. 25). The plaintiffs also claimed that the Mountain West violated their right to protest under the First Amendment, but Judge Crews found this argument unconvincing as well, particularly because there were no protests between the 2022 adoption of the Policy and the start of the Fall 2024 season. Accordingly, he found that the plaintiffs were unlikely to succeed on the merits of the case.
Ultimately, the district court denied the injunction because the plaintiffs failed to meet the high burden of making a “strong showing” that the balance of harms and likelihood of success on the merits weighed in their favor. For practitioners, this decision is a reminder that emergency injunctive relief is unlikely to be granted in cases where a conference or governing body’s policy has been effective for multiple years. Future plaintiffs should also note the court’s reluctance to accept the premise of the plaintiff’s Title IX claims. However, the court’s rationale on the Title IX claim may change if federal legislation is passed addressing the issue of trans participation in sports. A journalist recently reported that Congress is fast-tracking the “Protection of Women and Girls in Sports Act,” which would make it a violation to “permit a person whose sex is male to participate in an athletic program or activity that is designated for women” and overturn the precedent established in Bostock to prevent trans individuals from being covered under definition of “sex” in Title IX.[3] If passed, this legislation could make it more likely that the plaintiffs in this case (and those making similar claims) will prevail.
[1] Doctoral candidate, Florida State University.
[2] Order Denying Emergency Motion for Preliminary Injunction & Denying Plaintiff-Intervenor’s Partial Joinder in Plaintiff’s Emergency Motion, Slusser v. Mountain West Conference, No. 1:24-cv-03155 (D. Colo, Nov. 25, 2024) [ECF No. 29]. Unless otherwise noted, all citations in this article are from this order.
[3] Amanda Christovich, House to Fast-Track Ban on Transgender Athletes in Women’s Sports, Front Office Sports (Jan. 6, 2025), https://frontofficesports.com/house-to-fast-track-ban-on-transgender-athletes-in-womens-sports/
