Slusser et al v. Mountain West Conference, The et al

Filing 37

ORDER denying 29 Motion for Preliminary Injunction; denying 14 Motion for Preliminary Injunction: For the reasons shared in the attached Order, the movants have failed to meet their burden to show irreparable harm, a likelihood of success on the merits, or that the balance of harms or equities is in their favor. Therefore, the Motions are DENIED. Please see the attached Order. By Judge S. Kato Crews on 11/25/2024. (Crews, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:24-cv-03155-SKC-MDB
BROOKE SLUSSER, et al.,
Plaintiffs,
v.
THE MOUNTAIN WEST CONFERENCE, et al.,
Defendants.
______________________________________________________________________________
ORDER DENYING EMERGENCY MOTION FOR PRELIMINARY
INJUNCTION (DKT.14) & DENYING PLAINTIFF-INTERVENOR’S
PARTIAL JOINDER IN PLAINTIFFS’ EMERGENCY MOTION (DKT. 29)
______________________________________________________________________________
The Moving Plaintiffs, Brooke Slusser, Kaylie Ray, Macey Boggs, Sierra
Grizzle, Jordan Sandy, Katelyn Van Kirk, and Kiersten Van Kirk, bring their
Emergency Motion for Preliminary Injunction (Dkt. 14) 1 which is now before the
Court. The Emergency Motion seeks injunctive relief under Fed. R. Civ. P. 65 against
The Mountain West Conference (MWC) and its Commissioner, Gloria Nevarez
(collectively, “MWC”), regarding the MWC’s Transgender Participation Policy (TPP)

1 The Court uses “Dkt. __” to refer to documents from the CM/ECF electronic docket.

Page numbers refer to the blue, ECF-header page number, as opposed to an
individual document’s pagination.
1

and San Josè State University’s (SJSU) rostering of an alleged transgender woman
on its women’s volleyball team.
Plaintiff-Intervenor University of Utah (USU) 2 joins only in the portion of the
Emergency Motion that seeks injunctive relief against the MWC related to the claim
that the TPP violates Title IX of the Education Amendments of 1972, 20 U.S.C.
§§ 1681-88. The Court has jurisdiction over this matter under 28 U.S.C. §§ 1331,
1343, and 1367.
A. PROCEDURAL HISTORY
This case has proceeded in rocket fashion since its inception mere days ago.
Two weeks before the MWC Women’s Volleyball Tournament (“MWC Tournament”)
was scheduled to begin on November 27, 2024, Plaintiffs filed their Complaint in this
matter on November 13, alleging in relevant part, the MWC’s violations of Title IX,
the Equal Protection Clause of the Fourteenth Amendment, and the First
Amendment. Two days later, on Friday, November 15, the Moving Plaintiffs filed
their Emergency Motion based on an expedited briefing schedule set by the Court.
Dkt. 9. The Emergency Motion seeks the following relief:
1.

Rescind the portion of the MWC TPP that creates forfeits and
wins and losses for a cancelled or non-played conference game
where a member of the non-canceling team is a “transgender
student- athlete”;

2 The Court will sometimes refer to the Moving Plaintiffs as “movants,” and other

times will refer to the Moving Plaintiffs and USU collectively as “movants.”
2

2.

Rescind the wins granted to the SJSU Team and the losses
assigned via the MWC TPP to the teams which did not play the
SJSU Team;

3.

Order that for the purpose of calculating winning percentage to
determine the six teams eligible to compete in the MWC 2024
women’s volleyball tournament the six wins previously assigned
to SJSU by operation of the MWC TPP and the six losses
previously assigned by operation of the MWC TPP to teams which
canceled women’s volleyball games with SJSU cannot be relied
upon to calculate the final MWC women’s volleyball standings
and team winning percentages (meaning that SJSU will have
fewer wins and fewer games played and that the four teams that
canceled games with SJSU will have fewer losses and fewer
games played), and

4.

Enjoin SJSU from continuing to roster student-athlete [alleged to
be a trans woman] because [she] has been continuously ineligible
to play women’s volleyball pursuant to Title IX as [her] sex is male
and is therefore ineligible to play in, and should not be permitted
by the MWC to play in, the MWC women’s volleyball tournament.

Dkt. 14, ECF pp.2-3. 3
The following Monday, November 18, the Court set an evidentiary hearing on
the Emergency Motion for Thursday, November 21, and set a Status Conference for
the day before the hearing, on November 20. Dkt. 15. That same day (November 18),
USU filed its Motion for Limited Intervention as Plaintiff (Dkt. 16), which the Court
granted. Dkt. 20.
On November 19, the MWC and Defendant Kress filed their respective
Responses to the Emergency Motion in compliance with the Court’s expedited briefing
3 Moving Plaintiff Slusser seeks only an order that her alleged trans teammate be

declared ineligible to play women’s volleyball or play in the upcoming MWC
Tournament. Dkt. 14, ECF p.4 n.2.
3

schedule. 4 Dkts. 27, 28. On Wednesday, November 20, the Court held the scheduled
Status Conference. Dkt. 33. At the conference, the Court heard arguments on whether
the full briefing on the Emergency Motion suggested that predominantly legal issues
remained for the Court’s consideration such that no evidentiary hearing was
necessary. The Court ultimately concluded that legal issues predominated, and
therefore, it converted the evidentiary hearing to oral argument but allowed the
parties to make evidentiary proffers during their arguments. On November 21, the
Court held oral argument on the Emergency Motion and took the matter under
advisement.
B. FACTUAL FINDINGS 5
The MWC Tournament is scheduled to begin in two days, on November 27.
Dkt. 14, ECF p.1. The relief sought by the Emergency Motion affects the tournament,

4 During the evening of November 18, the Moving Plaintiffs filed a Motion for Leave

to File Corrected Emergency Motion for Preliminary Injunction and Corrected
Appendix to Motion, seeking leave to amend the Emergency Motion to include relief
against the Board of Trustees of the California University System. Dkt. 17. The Court
denied the motion on November 19 after receiving full briefing. Dkts. 18 (response),
21 (reply), 22 (order). The Moving Plaintiffs then withdrew their Emergency Motion
as it pertained to Defendant Kress but continued to seek the entirety of injunctive
relief against the MWC. Dkt. 23.

5 Any citations that include citation to websites or the dockets from other related

cases are pursuant to this Court’s authority to take judicial notice of such materials.
See Fed. R. Evid. 201; Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1298
n.2 (10th Cir. 2014) (taking judicial notice of pleadings and other documents filed in
other jurisdictions); O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th
Cir. 2007) (“It is not uncommon for courts to take judicial notice of factual information
found on the world wide web.”).
4

to include, at a minimum, which team members on the SJSU squad may play in it
and what the team seedings will be.
The MWC is a collegiate athletic conference comprised of 14 colleges and
universities—United States Air Force Academy; Boise State University; California
State University, Fresno; Colorado College; Colorado State University; University of
Hawai`i, Manoa; University of Nevada, Reno; University of New Mexico; San Diego
State University; SJSU; University of Nevada, Las Vegas; USU; University of
Wyoming; and Washington State University. Dkt. 1, ¶35; Dkt. 27-1, ECF p.3. Eleven
of these institutions host women’s volleyball teams for the 2024-25 academic year.
Dkt. 1, ¶36. The Moving Plaintiffs play on four of those teams: SJSU, USU, Boise
State, and the University of Wyoming (UW). Dkt. 1, ¶¶15, 20-25.
1.

The MWC TPP
In August 2022, the MWC Board of Directors adopted the TPP, which was

unanimously ratified by the Athletic Directors of the applicable MWC member
institutions—including USU—on August 25, 2022. Dkt. 27-1, ECF pp.204, 210.
Ratification by the Athletic Directors resulted in the TPP becoming the official
permanent policy of the MWC. Id. The MWC distributed the TPP to the MWC Joint
Council, which includes three student-athlete representatives from the Mountain
West Student-Athlete Advisory Committee. Dkt. 27-1, ECF p.7. The MWC also
published the TPP internally as an appendix to the 2022 Mountain West Volleyball
Game Management Handbook dated October 19, 2022. Dkt. 27-1, ECF pp.220, 2655

66. The MWC distributes the Volleyball Game Management Handbook internally to,
among others, coaches and administrators at all MWC member institutions. Dkt.271, ECF pp.7-8.
The 2022 TPP states, in relevant part:
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.
Dkt. 27-1, ECF pp.265-66. The MWC published the TPP internally and without
change in the 2023 Mountain West Women’s Volleyball Game Management
Handbook. Dkt. 27-1, ECF pp.268, 308-09. And it published it again internally and
without change in the 2024-25 Mountain West Volleyball Game Management
Handbook. Dkt. 27-2, ECF p.2; 27-3, ECF pp.15-16.
2.

The 2024 MWC Women’s Volleyball Season
Plaintiffs allege SJSU recruited a trans woman to join its volleyball team prior

to the 2022 season. Dkt. 1, ¶193. USU played against and defeated SJSU in the 2022
MWC finals. Dkt. 14-1, ECF pp. 436-37. SJSU’s alleged trans teammate played in
that game, although apparently her alleged status as a trans woman was not widely
suspected or assumed at the time. Id.
During the 2024 season, allegations that SJSU rostered a trans woman became
a talking point in the MWC early in the season because of an article published in the
6

spring of 2024 claiming a player on SJSU’s team was a trans woman. Dkt. 14-1, ECF
p.437. Relatively early in the season, and before conference competition began,
players from USU heard that Southern Utah University (a non-MWC university)
withdrew from a game with SJSU because of SJSU’s alleged trans teammate. Id. at
ECF p.438.
The Complaint alleges that in April 2024, “SJSU officials convened a meeting
with the women’s volleyball players and coaches to address a recent news article
about” a player on SJSU’s team alleged to be a trans woman. Dkt. 1, ¶280. Thereafter,
Moving Plaintiff Slusser informed Defendant Kress and Plaintiff Batie-Smoose (the
SJSU head coach and associate head coach, respectively) about her concerns over the
fairness and safety of playing with a trans teammate; she also told them that “other
teams within the [MWC] would not play SJSU due to [its alleged trans teammate],
and [ ] told the SJSU coaches that girls from other teams had told [her] they wanted
to protest against a man playing women’s volleyball.” Dkt. 1, ¶289; Dkt. 14-1, ECF
p.457.
Plaintiffs allege that Southern Utah University, a non-MWC school, withdrew
from its match against SJSU on September 14, 2024, the reason “widely reported to
be concern over playing against [SJSU’s alleged trans teammate].” Dkt. 1, ¶¶316-17.
Then a domino of forfeitures by MWC teams occurred.
On September 27, Boise State announced it would not play SJSU in the match
scheduled for September 28. It issued a press release stating: “Boise State volleyball
7

will not play its scheduled match at San José State on Saturday, Sept. 28. Per
Mountain West Conference policy, the Conference will record the match as a forfeit
and a loss for Boise State. The Broncos will next compete on Oct. 3 against Air Force.”
Dkt. 1, ¶¶339, 341, 611, 612; Dkt. 14-1, ECF pp.462-63; Dkt. 27-1, ECF pp.10-11.
The same day, in response to public inquiries concerning the TPP, the MWC
appended the TPP to the MW Handbook available on its website. Dkt. 27-1, ECF p.9.
The MWC did this without informing its member universities or their female
volleyball teams that it had taken the internal policy and made it public.
Next, on October 1, administration from the UW confirmed to the MWC that
the UW women’s volleyball team would not play its match against SJSU scheduled
for October 5, in protest of SJSU’s alleged trans teammate. Dkt. 27-1, ECF p.11; Dkt.
1, ¶613. The UW subsequently released a public statement: “After a lengthy
discussion, the University of Wyoming will not play its scheduled conference match
against San José State University in the UniWyo Sports Complex on Saturday, Oct.
5. Per MWC policy, the Conference will record the match as a forfeit and a loss for
Wyoming. The Cowgirls will host Fresno State on Thursday, Oct. 3 at 6:30 p.m. in
the UniWyo Sports Complex.” Dkt. 27, n.17.
On October 2, USU (Plaintiff-Intervenor) followed suit and declined to play its
match against SJSU on October 23, resulting in the MWC applying the TPP and
assigning USU a loss and SJSU a win. Dkt. 1, ¶¶616-617; Dkt. 14-1, ECF pp.440-41;
Dkt. 27-1, ECF pp.11-12. USU issued the following statement about its forfeit: “Utah
8

State University will not participate in its scheduled October 23, 2024, volleyball
match at San José State University. The University will abide by Mountain West
Conference policy regarding how this match is recorded.” Dkt. 27, n.8.
Next, the University of Nevada, Reno (UNR) was scheduled to host SJSU for a
volleyball match on October 26. On October 14, the UNR informed the MWC that the
UNR was releasing a statement to the media that a majority of its players told it
“they were forfeiting its scheduled match with San Josè State University on Oct. 26,
2024. The players’ decision and statement were made independently, and without
consultation with the University or the athletic department. The players’ decision
also does not represent the position of the University.” Dkt. 27, n.8. It further stated
the UNR “intends to move forward with the match as scheduled, and the players may
choose not to participate in the match on the day of the contest. No players will be
subject to any team disciplinary action for their decision not to participate in the
match.” Id.; see also Dkt. 27-1, ECF pp.12-13. Then, on October 24, the UNR issued
this statement: “Due to not having enough players to compete, the University of
Nevada women’s volleyball team will not play its scheduled Mountain West
Conference match at San José State on Saturday, Oct. 26. Per Mountain West
Conference policy, the match will be recorded as a conference loss for Nevada.” Dkt.
27, n.9; Dkt. 27-1, ECF p.13.
On November 1, Boise State confirmed to the MWC that its team would forfeit
its scheduled November 21 match against SJSU. Dkt. 27-1, ECF p.14. And on
9

November 8, the UW similarly confirmed to the MWC that its team would forfeit its
November 14 match against SJSU. Dkt. 27, n.10; Dkt. 27-1, ECF p.14.
The MWC applied the TPP to each of the above forfeited matches resulting in
losses for the forfeiting teams and wins for SJSU. There is no evidence any of the
forfeiting institutions protested application of the TPP to their forfeits or that they
asked or demanded the MWC treat those losses any differently, until the filing of this
lawsuit. Dkt. 27-1, ECF pp.10-14. And so far, only USU has sought to intervene in
this case.
3.

The Related Georgia Lawsuit Against the NCAA and Others
Meanwhile, and relevant here, on September 23, 2024, Moving Plaintiff

Slusser filed a motion in the U.S. District Court for the Northern District of Georgia,
asking to be added as a plaintiff to that ongoing lawsuit against the NCAA. Among
other claims, that lawsuit challenges the NCAA’s Transgender Eligibility Policy
(TEP), including in relation to its application to SJSU’s alleged trans teammate on
its women’s volleyball squad. Gaines, et al. v. NCAA, et al., No. 1:24-cv-01109-MHC,
ECF. No. 88 (N.D. Ga. Sept. 23, 2024); Dkt. 1, ¶320; see also Dkt. 88 in the N.D. Ga.
Case, ¶¶19 (“Brooke Slusser is a member of the putative class of women NCAA
student-athletes with current eligibility who are subject to the harmful effects of the
NCAA [TEP]”), 20 (alleging “. . . Slusser is an athlete dealing with known harms
arising from a male competing on a NCAA women’s [volleyball] team due to the
TEP.”).
10

C. STANDARD OF REVIEW
Injunctive relief is an extraordinary remedy which should only be granted
when the moving party clearly and unequivocally demonstrates its necessity. See
Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). Granting such “drastic
relief” is the exception rather than the rule. United States ex rel. Citizen Band
Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886,
888-89 (10th Cir. 1989); GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984).
In the Tenth Circuit, a party requesting injunctive relief must clearly establish the
following: (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. Citizen Band Potawatomi
Indian Tribe of Okla., 883 F.2d at 889.
If the injunction sought is of the “disfavored” variety, the moving party must
make an especially “strong showing” that the likelihood of success and balance of
harms weigh in its favor. Free the Nipple-Fort Collins v. City of Fort Collins, Colo.,
916 F.3d 792, 797 (10th Cir. 2019). A disfavored preliminary injunction is one that:
(1) mandates (rather than prohibits) action; (2) changes the status quo; or (3) grants
all the relief the moving party could expect from a successful trial. Id. With these
injunctions, a court must “more closely [scrutinize a motion for preliminary
injunction] to assure that the exigencies of the case support the granting of a remedy
11

that is extraordinary even in the normal course.” O Centro Espirita Beneficiente
Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004).
Further, Rule 65(a) does not explicitly provide that any hearing, evidentiary or
otherwise, is required before ruling on a motion for a preliminary injunction. See
generally Fed. R. Civ. P. 65. The Tenth Circuit requires no hearing or oral argument
on a motion for a preliminary injunction at all. Northglenn Gunther Toody’s, LLC v.
HQ8-10410-10450 Melody Lane LLC, 702 F. App’x 702, 705 (10th Cir. 2017)
(“[N]either Fed. R. Civ. P. 65(a) nor this circuit’s precedent require the district court
to hold an evidentiary hearing or oral argument before deciding a motion for a
preliminary injunction.”). Rather, a court may deny an injunction without a hearing
based on the written evidence (even when a hearing is requested) where “receiving
further evidence would be manifestly pointless.” 6 11A Charles Alan Wright et al.,
Federal Practice and Procedure § 2949 (3d ed. 2020). See also Carbajal v. Warner,
561 F. App’x 759, 764 (10th Cir. 2014) (district court within discretion to decide
whether to hold an evidentiary hearing); Reynolds & Reynolds Co. v. Eaves, 149 F.3d
1191, 1998 WL 339465, at *3 (10th Cir. June 10, 1998) (table) (same).

6 To be sure, during oral argument and the Moving Plaintiffs’ rebuttal, when arguing

the trans athlete rules applied by the NCAA and the MWC deny equal protection to
cis women and present a “clear facial violation of Title IX,” counsel argued, “They’re
clearly facially invalid and this Court doesn’t need any evidence to see their
invalidity. It’s all before you.”
12

D. ANALYSIS
1.

Nature of the Injunction Sought
The Court first considers the nature of the injunction sought because that

determines the weight of the burden Moving Plaintiffs and USU must satisfy
regarding the likelihood of success and balance of harms. Because the purpose of
temporary injunctive relief is to preserve the status quo pending a trial on the merits,
courts determining the status quo “are directed to look at the last peaceable
uncontested status existing between the parties before the dispute developed.” Archer
v. Griswold, 638 F. Supp. 3d 1246, 1255 (D. Colo. 2022) (citing Schrier, 427 F.3d at
1260). Here, movants seek an order requiring the MWC to do four things: (1) rescind
the TPP; (2) flip the wins granted SJSU and the losses accorded forfeiting teams; (3)
recalculate the teams’ standings; and (4) enjoin SJSU from continuing to roster its
alleged trans teammate and prohibit her from playing in the upcoming tournament.
Dkt. 14 at ECF pp.5-6.
Considering the nature of this relief, the Court finds it alters the status quo
because SJSU’s alleged trans teammate has been on its roster since 2022 and
throughout the 2024 season, and because the TPP has been in effect (whether or not
posted publicly) since August of 2022. Until the filing of this lawsuit, there was no
dispute between the parties over the applicability or enforceability of the TPP. The
evidence before the Court is that the MWC member institutions, including PlaintiffIntervenor USU, approved and ratified the TPP in 2022. Concerning SJSU’s alleged
13

trans teammate, she has been a member of the team since the 2022 season and has
played on the team each season since. Dkt. 1 at ¶¶193, 207. It was not until the spring
of 2024, at the earliest, that questions arose from Plaintiffs regarding her gender
identity.
The last peaceable uncontested status between the parties, therefore, was one
in which the TPP existed ratified and unchallenged by the MWC member institutions
since August 2022, and SJSU’s alleged trans teammate was rostered and playing
since the 2022 season. In now seeking to rescind the TPP, rescind its application to
the earlier forfeits, recalculate team standings, and de-roster SJSU’s team member,
the proposed injunction would disrupt (rather than preserve) the status quo. Moving
Plaintiffs and USU must therefore make a “strong showing” that the likelihood of
success and balance of harms weigh in their favor. See Free the Nipple-Fort Collins,
916 F.3d at 797.
This is in addition to the mandatory nature of the injunction sought. The
proposed injunction requires affirmative deeds, to wit: rescinding policy, flipping wins
and losses, and removing a player. Trial Laws. Coll. v. Gerry Spence Trial Laws. Coll.
Thunderhead Ranch, 23 F.4th 1262, 1275 (10th Cir. 2022) (“Other injunctions are
considered ‘mandatory’ when they ‘affirmatively require’ action.”). Thus, the movants
seek a mandatory injunction. Id. (“In ordering removal of the sculptures, the district
court imposed a mandatory injunction by affirmatively ordering the Spence Group to
take action.”). The burden on a party seeking a mandatory injunction is also higher;
14

the movant must assure that the “exigencies of the case” support mandatory action.
Id.
2.

Whether Movants Met Their Burden to Show Irreparable Harm
“[A] showing of probable irreparable harm is the single most important

prerequisite for the issuance of a preliminary injunction[.]” Dominion Video Satellite,
Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (quoting Reuters
Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir. 1990)). “Irreparable harm,
as the name suggests, is harm that cannot be undone, such as by an award of
compensatory damages or otherwise.” Salt Lake Tribune Pub. Co., LLC v. AT & T
Corp., 320 F.3d 1081, 1105 (10th Cir. 2003). “To constitute irreparable harm, an
injury must be certain, great, actual and not theoretical.” Schrier, 427 F.3d at 1267
(quoting Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)). “The
party seeking injunctive relief must show that the injury complained of is of such
imminence that there is a clear and present need for equitable relief to prevent
irreparable harm.” Id. (quoting Heideman, 348 F.3d at 1189 (alteration adopted)).
The Tenth Circuit acknowledges that “delay in seeking [injunctive] relief cuts
against finding irreparable injury.” Kan. Health Care Ass’n, Inc. v. Kan. Dep’t of Soc.
& Rehab. Servs., 31 F.3d 1536, 1543–44 (10th Cir. 1994) (cleaned up). And that’s a
problem for the movants here. The Court finds their delay in filing this action and
seeking emergency relief related to the MWC Tournament weakens their arguments
regarding irreparable harm. GTE Corp., 731 F.2d at 679 (denying preliminary
15

injunction and noting “movant’s delay in bringing suit is an important factor in
determining irreparable harm.”); Deer Valley Resort Co. v. Christy Sports, LLC, No.
2:07-CV-00904-DAK, 2007 WL 4570664, at *4 (D. Utah Dec. 21, 2007) (one-year delay
weighs against a finding of irreparable harm); see also Krueger Int’l, Inc. v.
Nightingale Inc., 915 F. Supp. 595, 613 (S.D.N.Y. 1996) (“I decline to manufacture a
sense of urgency that is not supported by plaintiff’s own conduct.”).
The Court understands “there is no categorical rule that delay bars the
issuance of an injunction[.]” Fish v. Kobach, 840 F.3d 710, 753 (10th Cir. 2016). But
here, when considering the movants’ challenge to the TPP, this policy was approved
and ratified by the MWC’s member institutions, including Plaintiff-Intervenor USU,
in August 2022. And any threatened harm resulting from the MWC’s enforcement of
that policy is apparent on the policy’s face—when a team refuses to compete against
another team that rosters an eligible trans teammate, the refusal is deemed a forfeit
and 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.” Dkt. 27-1, ECF pp.265-66 (emphasis added).
It makes little difference that the MWC did not publish the TPP publicly until
September 2024, or that the Moving Plaintiffs (mostly student athletes) may have
been unaware of the TPP until that time. The MWC’s eventual public posting of the
TPP did not render its 2022 internal enactment and application to its member
institutions any less valid. And the member institutions who forfeited their matches
16

against SJSU in 2024 acquiesced in the enforcement of the policy against them as
evidenced by the public statements they issued, which acknowledged their acceptance
and understanding of how the resulting wins and losses would be accorded. Dkt. 1,
¶¶339, 341, 611; Dkt. 27, n.8, 9, 17.
But even when giving the Moving Plaintiffs the benefit of the doubt, the MWC
publicly posted the TPP in September of 2024. The string of forfeits that followed with
forfeiting institutions publicly acknowledging application of the TPP began on or
about September 28 (Boise State). Forfeits then occurred again on or about October
1 (UW); October 2 (USU); October 24 (UNR); November 1 (Boise State); and
November 8 (UW). And yet, Plaintiffs did not file this lawsuit or their Emergency
Motion until two weeks before the start of the MWC Tournament set to begin on
November 27.
Having only two weeks to address consequential injunctive relief certainly
begets an emergency. But the facts associated with enactment of the TPP in 2022,
and its application to member institutions during the 2024 season, suggest the
movants could have sought injunctive relief much earlier if the exigencies of the
circumstances required mandatory court intervention.
For these reasons, the Court finds the movants’ delay was not reasonable,
there is no evidence to suggest they were precluded from seeking emergency relief
earlier, and the rush to litigate these complex issues now over a mandatory injunction
places a heavy lift on the MWC at the eleventh hour. Fish, 840 F.3d at 753 (the
17

question “is whether the delay was reasonable, was not a decision by the party to ‘sit
on its rights,’ and did not prejudice the opposing party.”). See also Colorado Motor
Carriers Ass’n v. Town of Vail, No. 1:23-cv-02752-CNS-STV, 2023 WL 8702074, at
*12 (D. Colo. Dec. 15, 2023) (“Courts in both this jurisdiction and others have
uniformly determined that a movant’s delay in seeking injunctive relief warranted
the relief’s denial.”) (collecting cases); Archer, 638 F. Supp. 3d at 1261-62 (finding
plaintiffs failed to show irreparable harm on their First Amendment claim due to
their delay in seeking injunctive relief).
The same is true of the delay associated with the requested relief to enjoin
SJSU from rostering its alleged trans teammate. At the earliest, Moving Plaintiffs or
their institutions began to learn that one of SJSU’s teammates was an alleged trans
woman with an article published in the spring of 2024. And they certainly had
knowledge of this alleged player when the string of member institutions started
forfeiting matches against SJSU in September 2024.
Even further though, the essence of the concept of irreparable harm “requires
a substantial threat of harm to the movant that cannot be compensated by money.”
Mountain Med. Equip., Inc. v. Healthdyne, Inc., 582 F. Supp. 846, 848 (D. Colo. 1984)
(citing Spiegel v. City of Houston, 636 F.2d 997 (5th Cir. 1981)) (emphasis added). “A
threat, by definition, only encompasses action about to occur.” Id. A preliminary
injunction, therefore, is typically no recourse for harm that has already happened.
Qwest Commc’ns Int’l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 421 (D. Colo.
18

2003) (“[T]he moving party must come forward with evidence showing irreparable
injury may occur pendente lite if the preliminary injunction is not granted.”); see also
Pham v. Univ. of La. at Monroe, 194 F. Supp. 3d 534, 548 (W.D. La. 2016), aff’d sub
nom. Dung Quoc Pham v. Blaylock, 712 F. App’x 360 (5th Cir. 2017) (where student
was already expelled, there was “no threat of irreparable injury or reason to preserve
the status quo because the status quo is not what is desired.”).
In this instance, most (if not all) of the alleged harm has already occurred.
SJSU’s alleged trans teammate has played on the team since 2022. Each time an
opposing squad forfeited a game in 2024 and the MWC enforced the TPP, the forfeit
was recorded as a loss against that team’s record and simultaneously affected the
overall team standings going forward. Because a crux of the Moving Plaintiffs’
complaint regarding the TPP is that it counted each forfeit as a loss, each loss was a
harm that could have been addressed with an earlier request for injunctive relief
because the threat of harm—a forfeit treated as a loss—was apparent from the face
of the TPP. At this stage, however, there is no longer a threat of harm because the
alleged harm already occurred when each team incurred the loss on its record.
Moreover, as of the date of this Order, the volleyball season has ended and the
bracket and seedings for the MWC Tournament are finalized. 7 As related to the

7 On November 23, the MWC posted the seedings for the tournament on its website

as follows: No. 1: Colorado State University; No. 2: SJSU; No.3 USU; No.4: Fresno
State; No. 5: Sand Diego State; and No. 6: Boise State.
19

tournament, teams were required to provide their travel party information to the
MWC by November 20; they were requested to confirm their intent to participate in
the tournament by November 22; and the bracket and seedings for the tournament
were determined and announced on November 23 following the final regular season
matches. Dkt. 27-1, ECF pp.14-15. 8 Thus, the harms the Emergency Motion seeks to
avert regarding the TPP have already occurred. This further weighs against finding
irreparable harm to support a preliminary injunction.
For these reasons, the movants have failed to meet their burden to show
irreparable harm, thus justifying denial of the Emergency Motion and USU’s motion
partially joining in it.
3.

Whether Movants Met Their Heightened Burden of Showing a
Likelihood of Success on Their Title IX, Equal Protection, and First
Amendment Claims 9
a.

Title IX and Equal Protection Claims

No Defendant disputed that SJSU rosters a trans woman volleyball player.
See, e.g., Dkt. 14-1 (Expert Witness Declaration of Tommy Lundberg, PhD), ECF

8 On November 24, 2024, the head coaches of the qualifying volleyball teams were

required to participate in a Pre-Championship meeting; on November 26, 2024, the
student-athlete roster form is due to the MWC for each qualifying team. Dkt. 27-1,
ECF pp.14-15.
9 The discussion in this section assumes, without deciding, that the movants met their

burden to show a reasonable likelihood of success on the merits in establishing the
MWC is a federal funds recipient for purposes of Title IX and a state actor for
purposes of the Equal Protection Clause and First Amendment claims.
20

p.361 ¶¶2.3 (defining “transgender” “as an umbrella term to describe individuals
whose gender identity differs from the sex observed at birth. Trans-identifying males
(often referred to as transgender girls/women) are individuals who were observed
male at birth but identify as girls/female/women.”). Thus, a legal issue before the
Court on the Emergency Motion is whether the meaning of “sex” under Title IX and
the Equal Protection Clause includes trans individuals. See A.C. by M.C. v. Metro.
Sch. Dist. of Martinsville, 75 F.4th 760, 769 (7th Cir. 2023), cert. denied sub nom.
Metro. Sch. Dist. of Martinsville v. A. C., 144 S. Ct. 683 (2024) (“The crucial question
for the Title IX theory . . . is one of law: how does one interpret Title IX’s prohibition
against discrimination ‘on the basis of sex’ as applied to transgender people? . . . Our
answer to that legal question [does] not depend on the plaintiff’s evidentiary showing,
and that answer does not change with a more rigorous threshold for success on the
merits.”). Considering Tenth Circuit and Supreme Court precedent on this issue
suggests the movants have failed to show a likelihood of success on the merits of these
claims.
In the Tenth Circuit, “[c]ourts have generally assessed Title IX discrimination
claims under the same legal analysis as Title VII claims.” Gossett v. Okla. ex rel. Bd.
of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001); Throupe v. Univ.
of Denver, 988 F.3d 1243, 1250–51 (10th Cir. 2021); see also Dimas v. Pecos Indep.
Sch. Dist. Bd. of Educ., No. 1:21-cv-00978-KWR-JFR, 2022 WL 816501, at *4 (D.N.M.
Mar. 17, 2022) (doing so and concluding “this Court may reasonably conclude that a
21

plaintiff’s allegation of discrimination due to sexual orientation falls within Title IX’s
broader prohibition against discrimination on the basis of sex.”); but see Bridge on
behalf of Bridge v. Okla. State Dep’t of Educ., 711 F. Supp. 3d 1289, 1298 (W.D. Okla.
2024) (declining to do so); Kansas v. U.S. Dep’t of Educ., --- F. Supp. 3d ---, No. 244041-JWB, 2024 WL 3273285, at *9-10 (D. Kan. July 2, 2024) appeal docketed No. 243097 (July 11, 2024) (declining to do so). Indeed, the Tenth Circuit instructs that Title
IX is best interpreted by looking to Title VII. See Roberts v. Colo. State Bd. of Agric.,
998 F.2d 824, 832–33 (10th Cir. 1993) (“Further, despite the fact that Title IX was
explicitly modeled on Title VI, this court has held that Title VII of the Civil Rights
Act of 1964 . . . is ‘the most appropriate analogue when defining Title IX’s substantive
standards, including the question of whether “disparate impact” is sufficient to
establish discrimination under Title IX.’” (quoting Mabry v. State Bd. of Cmty. Coll.
& Occupational Educ., 813 F.2d 311, 316 n. 6 (10th Cir. 1987), cert. denied.) This
includes consideration of the ordinary public meaning of the statute’s language at the
time it was enacted. Bostock v. Clayton Cnty., Ga., 590 U.S. 644, 659 (2020).
In Bostock, the Supreme Court interpreted the meaning of “sex” as used in
Title VII of the Civil Rights Act of 1964. 10 Id. at 655. The high court first “proceed[ed]
on the assumption” that “sex” referred “only to biological distinctions between male
and female[,]” which it described as “just a starting point.” Id. at 655-56. According

10 Title IX of the Education Amendments was enacted eight years later, in 1972.

22

to the Supreme Court, the question wasn’t “just what ‘sex’ meant, but what Title VII
says about it.” Id. at 656. Noting that Title VII prohibits employers from taking
certain action “because of” sex, it held “it is impossible to discriminate against a
person for being homosexual or transgender without discriminating against that
individual based on sex.” Id. at 656, 660. See also id. at 669 (“By discriminating
against transgender persons, the employer unavoidably discriminates against
persons with one sex identified at birth and another today.”).
Since Bostock, many circuit courts have followed this precedent to find or
assume that “sex” under Title IX’s prohibitions includes discrimination based on an
individual’s trans status or sexual orientation. See, e.g., Dimas, 2024 WL 1881076, at
*8 n.9 (citing Bostock and assuming for purposes of the appeal that under Title IX,
discrimination on the basis of sexual orientation is sex-based discrimination); 11 B.P.J.
by Jackson v. W. Va. State Bd. Of Educ., 98 F.4th 542, 563 (4th Cir. 2024), cert. denied
WV Secondary School Activities v. B.P.J., --- S. Ct. ---, 2024 WL 4805904 (excluding
middle school trans girl from playing on girls’ cross country and track-and-field teams
violated Title IX); A.C. by M.C., 75 F.4th at 769 (“Applying Bostock’s reasoning to
Title IX, we have no trouble concluding that discrimination against transgender

11 In the Tenth Circuit, courts may rely on unpublished Tenth Circuit opinions when

they have persuasive value with respect to a material issue and will assist the court
in its disposition. United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005).
23

persons is sex discrimination for Title IX purposes, just as it is for Title VII
purposes.”), cert. denied, 144 S. Ct. 683 (2024).
These interpretations are further consistent with the Supreme Court’s earlier
interpretation of “on the basis of sex” under Title IX. See Jackson v. Birmingham Bd.
of Educ., 544 U.S. 167 (2005). In Jackson, the Supreme Court noted the text of Title
IX “broadly prohibits a funding recipient from subjecting any person to
‘discrimination’ ‘on the basis of sex[,]’” and it held Title IX protects a person (there a
male) from retaliation for complaining about sex discrimination experienced by
others. Id. at 173-74 (“We conclude that when a funding recipient retaliates against
a person because he complains of sex discrimination, this constitutes intentional
‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.” (emphasis in original)).
The Jackson Court observed that “discrimination” “is a term that covers a wide range
of intentional unequal treatment; by using such a broad term, Congress gave [Title
IX] a broad reach.” Id. at 175.
The holding in Bostock brings the reasoning in Jackson full circle when
considering the meaning of “sex” in Title IX as applied to trans individuals. This full
circle is further consistent with the Tenth Circuit’s recent interpretation of the
meaning of “sex” under the Equal Protection Clause, where it applied the reasoning
in Bostock to hold that discrimination based on trans status is discrimination on the
basis of sex that implicates the Equal Protection Clause. Fowler v. Stitt, 104 F.4th
770, 790 (10th Cir. 2024) (“But we see nothing about these differences that would
24

prevent Bostock’s commonsense reasoning—based on the inextricable relationship
between transgender status and sex—from applying to the initial inquiry of whether
there has been discrimination on the basis of sex in the equal protection context.”).
Moreover, the movants’ Title IX theory raised in this case directly conflicts
with Title IX’s prohibition on discrimination against trans individuals. Courts are
required to interpret a statute “as a symmetrical and coherent regulatory scheme”
and “fit, if possible, all parts into a harmonious whole[.]” Food & Drug Admin. v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (cleaned up). And “as
between multiple reasonable interpretations of a statute, we will always prefer one
that sustains constitutionality to one that does not under the presumption of
constitutional validity.” United States v. Brune, 767 F.3d 1009, 1023 (10th Cir. 2014).
This is all to say that based on this body of Tenth Circuit and Supreme Court
precedent, and on the current record, Moving Plaintiffs and USU have failed to meet
their burden to establish a likelihood of success on the merits of their Title IX and
Equal Protection claims.
b.

First Amendment Claims

The Court also finds the movants have failed to show a likelihood of success on
their First Amendment claim involving the TPP. The Court agrees with the Moving
Plaintiffs that the First Amendment generally protects their right to protest. See
Nat’l Ass’n for Advancement of Colored People v. Alabama ex rel. Flowers, 377 U.S.
288, 307 (1964). As pleaded and alleged, this claim is persuasive insofar as the
25

allegations of the MWC’s surreptitious posting of the TPP in September 2024 as a
reaction to teams forfeiting games against SJSU because of its alleged trans
teammate. 12 Dkt. 1, ¶¶346-56. But the claim loses persuasive value based on the
unrefuted evidence (conceded by USU) that the TPP was ratified and enacted by the
MWC member institutions in 2022, it became official and binding policy at that time,
and the policy did not change between 2022 and 2024. It is also notable that the MWC
member institutions who forfeited their matches against SJSU during the 2024
season acknowledged their understanding of the application of the TPP to their
forfeits, without protest. As the Court understands it, the only member institution to
protest so far is USU, but its protest did not come until it sought to intervene in this
action.
The point here is that, because of these facts, Moving Plaintiffs have failed to
meet their burden to show a likelihood of success on their First Amendment Claim
involving the TPP.

12 At the hearing, Moving Plaintiffs argued the MWC admitted a violation of its

bylaws because Section 2.15 of the bylaws provide the MW Handbook “may be
amended only by the affirmative vote of three-fourths (3/4) of the members of the
Board of Directors.” Dkt. 14-1, ECF p.122. Counsel for the MWC indicated at the
hearing, in response to the Court’s query, that it was a staff decision to make the TPP
publicly available by appending it to, and posting it in, the MW Handbook available
online. It is not apparent on the record whether appending one document to another
is equivalent to amending a document. But regardless, the MWC’s eventual public
posting of the TPP (even if done in derogation of the bylaws) did not render the TPP’s
2022 internal enactment and application to its member institutions any less valid.
26

4.

Balance of Harms
Even if the Court later finds in Plaintiffs’ favor on the claims which are the

subject of the Emergency Motion, for the reasons shared above concerning the
irreparable-harm factor, the threatened injury to the movants if an injunction issues
is outweighed by the MWC’s interest in holding the upcoming MWC Tournament
without an eleventh-hour shake-up to its currently planned structure. The
tournament is set to begin in mere days, on November 27, and it has been scheduled
to occur for ten months. Dkt. 27-1 at ECF pp.14-15. According to the evidence, the
bracket and seeding for the tournament are already determined and the head coaches
of the selected teams have participated in the Pre-Championship meeting. Id. The
relief requested with the Emergency Motion would risk confusion and upend months
of planning and would prejudice, at a minimum, Defendants and other teams
participating in the tournament depending on the results of any reseeding. On
balance, the equities favor the MWC’s interest in conducting and proceeding with the
tournament as planned.
*

*

*

For the reasons shared above, the movants have failed to meet their burden to
show irreparable harm, a likelihood of success on the merits, or that the balance of
harms or equities is in their favor. First W. Capital Mgmt. Co. v. Malamed, 874 F.3d
1136, 1144 (10th Cir. 2017) (“We need not address each of the four preliminary
injunction factors here because the district court has already determined [plaintiff]
27

cannot show irreparable harm. . . . . Without showing irreparable harm, [plaintiff]
cannot obtain a preliminary injunction.”); see also Roberts v. Generation Next, LLC,
No. 18-cv-00975-WJ-LF, 2019 WL 2340960, at *1 (D.N.M. June 3, 3019) (“The
elements [for preliminary injunction] are set forth in the conjunctive—meaning that
a plaintiff must satisfy all four elements in order to obtain injunctive relief.”). As a
result, the Court must deny the Emergency Motion (Dkt. 14) and PlaintiffIntervenor’s Partial Joinder in it (Dkt. 29).
It is ORDERED that the motions at Dkts. 14 and 29 are DENIED. It is
FURTHER ORDERED that the parties shall contact the chambers of Magistrate
Judge Maritza Dominguez Braswell to set a Rule 16(b) Scheduling Conference.
Dated: November 25, 2024.
BY THE COURT:
_______________________________
S. Kato Crews
United States District Judge

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