Boise State, Other Schools File Lawsuit Over Transgender Athlete Policy

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

Originally posted on IdahoEdNews.org on November 14, 2024

(UPDATED, 3:56 p.m., with comment from Mountain West Conference.) A dozen plaintiffs — including two Boise State University volleyball players — are taking an ongoing transgender athletics dispute to a federal court. A lawsuit was filed Wednesday against San José State University, which, according to previous court filings, has a transgender athlete on its women’s volleyball roster. The suit also targets the Mountain West Conference, saying the athletic conference hastily and quietly adopted a transgender athletics policy the same day Boise State announced it would not play a match against San José State. Boise State was the first of four Mountain West schools to forfeit matches with San José State. Boise State announced its first forfeit on Sept. 27, one day before a scheduled road match. According to the lawsuit, the Mountain West added a transgender participation policy on Sept. 27. The policy says, in part, that any team that refuses to play against an opponent with a transgender athlete “shall be deemed to have forfeited the contest.” The conference’s policy, and its timing, was an attempt “to penalize the Boise State University women’s volleyball team members for speaking out,” according to the lawsuit, which asks a federal judge to throw out the policy. But the timing of the policy could be open to dispute, as the Idaho Statesman reported Thursday. According to emails provided to the Statesman and Idaho EdNews, the conference says it has had a transgender participation policy in place since August 2022. The 132-page lawsuit also sheds some additional light on Boise State’s Sept. 27 forfeit. “Behind the scenes the Boise State University women’s volleyball players and administrators had been pushing for the Boise State University Team not to play the SJSU Team due to concerns over competitive fairness and athlete safety,” the lawsuit says. As Idaho EdNews reported in October, Boise State athletics officials had discussed a possible forfeit for several days leading up to the decision. Boise State couched the forfeit as a “university leadership” decision, and has said nothing about whether players had a say in the matter. 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. Plaintiffs also come from the three other Mountain West schools that have forfeited matches this season: Utah State University, the University of Nevada and the University of Wyoming. Boise State deferred comment on the lawsuit to the Mountain West Conference.

“The Mountain West Conference prioritizes the best interests of our student-athletes and takes great care to adhere to NCAA and MW policies,” the conference said in a statement Thursday afternoon. “While we are unable to comment on the pending litigation of this particular situation, we take seriously all concerns of student-athlete welfare and fairness.”

The lawsuit is supported — and, to at least some degree, bankrolled — 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 at length 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 its Sept. 27 match. ICONS contacted university President Marlene Tromp directly on Sept. 24. Boise State has said the external lobbying did not factor in its decision to forfeit. In all, Mountain West schools have now forfeited six matches with San José State, including a Boise State home match that had been scheduled for Nov. 21. The spate of forfeits — mandated by the Mountain West’s transgender participation policy — has padded San José State’s record and has penalized Boise State and other teams, the lawsuit says. This alters the Mountain West’s standings heading into the conference’s postseason tournament later this month; six of the conference’s 11 teams qualify for the tournament. In the lawsuit, the plaintiffs want the court to void all of San José State’s wins, or reverse the forfeits. They also seek “a declaration that any male student-athlete is ineligible to compete in women’s volleyball in the MWC and on the San José State University women’s volleyball team.”