USU files a motion to join lawsuit against the Mountain West

Utah State University filed a motion to join a lawsuit against San Jose State University and the Mountain West Conference on Monday, Nov.18. The lawsuit hopes to accomplish several directives regarding the upcoming Mountain West Volleyball Championship and claims that Mountain West allowing Blaire Fleming, a transgender player at San Jose, to play violated players’ Title IX and First Amendment rights. 

USU’s Motion

As reported by Outkick, the lawsuit hopes to either disqualify Fleming from playing in the tournament, bar San Jose from the tournament and/or remove San Jose’s wins from forfeited games and the losses from the schools who forfeited from its records.  

These changes would significantly alter the team rankings and rearrange the tournament’s format. USU explained these possible shifts in their motion. 

“Teams with a better winning percentage receive higher seeds and the top two seeds get a bye for the first round of the tournament. Higher seeds and first round byes increase the chances that a team will win the three-day MWC tournament and the automatic entry into the NCAA tournament,” the motion stated. “As of right now, SJSU has a better winning percentage and will receive a higher tournament seed (and first round bye) solely because the MWC TPP awarded SJSU a win and punished USU with a loss for USU volleyball team’s decision not to play SJSU’s team.” 

USU shared that the decision to forfeit the game could negatively impact USU and its funding.  

“Had USU somehow forced its team to play the match contrary to some team members’ concerns implicating USU’s Title IX obligations, USU would have risked violating Title IX’s provisions and losing federal funding,” the motion stated. “USU has a protected interest in ensuring its compliance with Title IX to maintain continued receipt of an important funding source to help further USU’s mission.” 

The decision also hurts the volleyball program and its ability to compete, according to the motion filed.  

“Second, and regardless of the Title IX funding, USU’s volleyball program has been harmed by the application of the forfeiture provision of the TPP [Transgender Participation Policy] and will be further harmed if the policy is enforced during the MWC tournament,” the motion stated.  

They continued, saying that having the forfeited game listed as a loss hurt their ability to earn a higher seed and a better chance at competing in the NCAA tournament.  

USU, which hopes to participate in the lawsuit in a limited capacity, said its goal is to invalidate the Mountain West Transgender Participation Policy, rescind the TTP-imposed loss and prohibit “the TPP’s application at the MWC tournament.” They only listed Mountain West as the defendant in their motion, not SJSU.  

“Here, USU meets its minimal burden to show its interests may vary from Plaintiffs’ interests,” the motion said. “That’s readily apparent from the fact that Plaintiffs’ Complaint and PI Motion allege USU is part of the problem—suppressing volleyball members’ free speech rights—rather than part of the solution. USU disputes those allegations.” 

Before USU filed to join, this 132-page lawsuit began with 12 women, including Kaylie Ray, a redshirt junior who plays for the USU volleyball team, teammates of Fleming’s and players from Wyoming, Boise State and Nevada. They claim that Fleming should be ineligible for play, as she was born male, and that allowing her to play fails to protect female athletes.  

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Ray also claimed in the suit that after Boise State forfeited their game against SJSU, USU volleyball head coach Rob Neilson “came into a film meeting and stated flatly and emphatically, ‘I don’t know how you guys feel about this, but we will be playing against San Jose State; Blaire is not that talented.’”  

The lawsuit continued, stating, “[t]his statement by our coach really rubbed our team the wrong way. We were shocked that we had no say in the decision, nor were we asked if we thought competing against SJSU was fair or safe.” 

The team then protested playing as Wyoming also canceled its game, and Ray said Neilson did not listen to them. The team eventually had a Zoom meeting with just the players, Athletic Director Diana Sabau and USU President Elizabeth Cantwell. In this meeting, Cantwell requested the players complete an anonymous survey regarding the SJSU match. After these surveys, it was announced that USU would not play SJSU.  

In their motion, USU said the majority of those surveyed were against playing the match, citing several reasons, including concerns of fairness, personal and political beliefs and worries regarding their safety.  

Ray also shared an experience in the lawsuit that she claims infringed on her right to free speech. She and several teammates wore t-shirts with “BOYcott” on them for their “Fun Friday” practice, wherein players could wear anything they’d like to practice.  

“It was a bonding thing and a statement of solidarity with all the women in the conference who are standing up against men taking women’s places in sport,” Ray said in the lawsuit. “We thought it would encourage our teammates and we wanted to demonstrate the pride we have in our entire team being willing to stand up for women’s rights.” 

Ray and her teammates took a photo in the shirts at practice and posted it to social media. She said after the picture garnered lots of attention on the internet, she got in trouble with her coach.  

PHOTO VIA The lawsuit.
The photo was posted to social media.

“Later in the film room, the USU head coach, in front of the entire team, spoke sharply to Kaylie and another teammate who was also in the photo,” the lawsuit stated. “The USU Coach accused Ray of usurping the voice of the team and being ‘selfish’ for having the picture posted. The USU Coach told Ray this was a ‘hot button issue’ and that the USU players should avoid making any more public statements about this issue.” 

Ray said she is now worried that USU personnel and the Mountain West will punish her by not allowing her to play if she shares her opinion.  

“[I] tried to stay positive as I reflect on the fact that even as we were trying to sacrifice for other women in the conference and for future generations of women, many around us were only concerned about the discomfort our stand was causing them and how it made them appear to others,” Ray said in the lawsuit. “They did not appear to care about standing up for us; they simply acted inconvenienced and put off by our decision to speak up for women.” 

USU filed to join the lawsuit shortly after Utah Gov. Spencer Cox and Utah legislative members  Mike Schultz, speaker of the Utah House of Representatives, and Stuart Adams, president of the Utah Senate, released a statement asking USU to intervene on Ray’s behalf. 

“Female athletes deserve the right to a safe playing field, fair competition and equal opportunities,” the press release said. “By intervening, Utah will send a clear message that these rights are non-negotiable. The NCAA, Mountain West Conference and other institutions across the nation have failed to take action, thereby undermining vital protections and putting female athletes at risk.” 

Additionally, on Monday, several Congress members, including Utah’s Burgess Owens, John Curtis, Mike Lee, Celeste Maloy, Blake D. Moore and Mitt Romney, sent a letter to Gloria Nevarez, commissioner of the Mountain West Conference, asking to change the TPP. 

Letter from Congressmen

“Recently, members of your conference have forfeited games, risking their competitive standings to ensure the safety of their female athletes,” the letter said. “The Mountain West Conference’s failure to prohibit biological males from competing in women’s sports is unfair to the women and girls who have worked tirelessly to compete at the collegiate level. We applaud the bravery of these female athletes and the universities in our home states for taking a stand to preserve Title IX when the Mountain West Conference would not.” 

San Jose responded in an email to the Statesman’s request for a statement. 

“Our athletes all comply with NCAA and Mountain West Conference policies, and they are eligible to play under the rules of those organizations,” San Jose wrote. “We will continue to take measures to prioritize the health and safety of our students while they pursue their earned opportunities to compete.” 

A USU spokesperson said the university had nothing to say regarding the lawsuit or USU’s motion to join it after several requests from The Utah Statesman earlier in the week. 

Students and faculty at USU have begun responding to the lawsuit. Steve Kent, a USU alumnus and staff member, created a petition on Change.org. On the petition’s webpage, Kent said this doesn’t reflect the viewpoint of the university but the viewpoints of several members of the campus community.  

“This official stance from the university does not reflect the views of all Aggies,” Kent wrote. “While the specifics of gender segregation and eligibility requirements in athletics are complex issues, we protest the actions of the university and Gov. Spencer Cox, who asked USU to join the lawsuit.” 

He continued, explaining that this issue hurts all women, not just transgender women. 

“We stand in solidarity with transgender people, who are being targeted and will bear the most harm from these discriminatory actions,” Kent wrote. “But we also understand that harm will not be limited to trans women. Any political machinery built to target trans women will invariably be used to target cisgender women, as well.” 

In the comment section left on the Change.org petition, several students and graduates shared their frustration and anger at USU for their participation and recent actions regarding the transgender community.  

“I am a recent graduate of USU and try take what I learned there to make Cache Valley a better place. This is undermining the efforts of countless faculty, students and alumni that care about everyone in the Aggie community, and all residents of our beautiful valley,” wrote Landis, a commenter on the petition. “USU has a long way to go to protect and provide adequate care and support to all students, but especially trans students. This action sets them back even more.”  

Another commenter named Crius shared their experience as a queer person on campus and their concerns. 

“Campus went from being a safe place to a space in which my presence felt unwelcome and ignored,” Crius wrote. “I worry for future people who consider USU, because this may not be a safe place for them. Even if the government is issuing new laws, USU should still make it a priority to include all people of all backgrounds and not erase non-normative voices from campus.” 

At the time of publication, 287 verified signatures have been collected.  

This story will be updated as new information becomes available.