Transgender dispute heads to federal court; Boise State players sign on as plaintiffs

Originally posted on IdahoEdNews.org on November 14, 2024.

A dozen plaintiffs — including two Boise State University volleyball players — are taking an ongoing dispute over transgender athletics to federal court.

A lawsuit was filed Wednesday against San Jose State University, which has a transgender athlete on its women’s volleyball roster, according to previous court documents. The lawsuit also targets the Mountain West Conference, saying the athletic conference hastily and quietly adopted a transgender athletics policy on the same day Boise State announced it would not play a game against San Jose State.

Boise State was the first of four Mountain West schools to forfeit games with San Jose State. Boise State announced its first forfeit on September 27a day before a scheduled road race.

According to the lawsuit, the Mountain West added a transgender participation policy on September 27. The policy says in part that any team that refuses to play an opponent with a transgender athlete “will be deemed to have forfeited the game.”

The conference’s policy, and its timing, was an attempt “to punish members of the Boise State University women’s volleyball team for speaking out,” according to the lawsuit, which asks a federal judge to dismiss the policy.

But the timing of the policy could be open to debate the Idaho Statesman reported Thursday. The conference says it has had a transgender participation policy since August 2022, according to emails to the Statesman and Idaho EdNews.

The 132-page lawsuit also sheds some additional light on Boise State’s forfeit on September 27.

“Behind the scenes, Boise State University women’s volleyball players and administrators had insisted that the Boise State University team not play on the SJSU team due to concerns about fair competition and athlete safety,” the lawsuit said.

If Idaho EdNews reported this in OctoberBoise State athletics officials had discussed a possible forfeit several days prior to the decision. Boise State described the forfeit as a decision of “university leadership” and said nothing about whether players had a say in the case.

Eleven players and a coach are plaintiffs in the lawsuit – including Boise State players Kiersten Van Kirk and Katelyn Van Kirk, two sisters from Bozeman, Mont. The plaintiffs include San José State assistant coach Melissa Batie-Smoose, current San José State player Brooke Slusser and former San José State player Elle Patterson. The plaintiffs also come from the three other Mountain West schools that forfeited games this season: Utah State University, the University of Nevada and the University of Wyoming.

Boise State has deferred comment on the lawsuit until the Mountain West Conference.

“The Mountain West Conference prioritizes the interests of our student-athletes and takes great care to comply with NCAA and MW policies,” the conference said in a statement Thursday afternoon. “While we cannot comment on ongoing litigation regarding this specific situation, we take all concerns about the well-being and fairness of students and athletes seriously.”

The lawsuit is supported — and to some extent funded — by the Independent Council on Women’s Sports, or ICONS, a Nevada-based group that opposes allowing transgender athletes to compete in women’s sports. The group says transgender athletes have an unfair physical advantage over female athletes — an argument made extensively in Wednesday’s lawsuit.

“The disregard for the fairness and safety of female athletes by the MWC and SJSU is unacceptable,” ICONS co-founder Marshi Smith said in a news release Wednesday.

As EdNews has previously reported, ICONS was one of several national groups that lobbied Boise State to forfeit the September 27 game. ICONS contacted university president Marlene Tromp directly on September 24. Boise State has said outside lobbying played no role in its decision to give up.

In total, Mountain West schools have now lost six games with San Jose State, including a home game at Boise State scheduled for Nov. 21.

The wave of forfeits — imposed by the Mountain West’s transgender participation policy — extended San Jose State’s record and punished Boise State and other teams, the lawsuit said. This changes the Mountain West standings heading into the conference postseason tournament later this month; six of the conference’s eleven teams qualify for the tournament.

In the lawsuit, the plaintiffs want the court to void all of San Jose State’s victories or reverse the forfeiture. They also demand “a declaration that any male student-athlete is ineligible to participate in women’s volleyball in the MWC and on the San José State University women’s volleyball team.”