Inside San Jose State’s polarizing volleyball season
Credit to Author: Katie Barnes| Date: Tue, 26 Nov 2024 19:27:48 EST
Riley Gaines steps onto the stage in a ballroom at the Reno-Sparks Convention Center wearing a black T-shirt with “XX ≠ XY” written across her chest in white letters.
The former University of Kentucky swimmer flew halfway across the country to stand with nine Nevada women’s volleyball players who are here to explain why they refused to play a game against San Jose State, a team they say includes a transgender player.
The event, sponsored by the Independent Council on Women’s Sports (ICONS), was originally booked in a college bar across town, but it was moved to accommodate the larger crowd, about 400 deep. Nevada Senate candidate Sam Brown is in attendance with his family. Lt. Gov. Stavros Anthony is scheduled to speak.
But first, Gaines invites the Nevada volleyball players, wearing black “BOYcott” T-shirts, to the stage. Many in the crowd stand and wave signs saying “Protect Women’s Sports” and “I stand with Nevada volleyball.” Nevada is the fifth team that has refused to play San Jose State this season. The schools have not cited the San Jose State player as a reason for the forfeits, but the Nevada players are here to make their perspective clear.
Nevada captain Sia Liilii steps to the microphone. She wipes away tears.
“I never expected to be blindsided, having to compete against a male athlete,” she says. “When the news broke, I was stunned, as many of my teammates were. This is not what we signed up for.”
It’s a sentiment that is shared by many players throughout the Mountain West Conference and even within the walls of San Jose State’s own locker room. One of the Spartans’ co-captains filed two lawsuits arguing her teammate shouldn’t be on the team. An associate head coach filed a Title IX complaint against the head coach and joined a lawsuit that says the team’s wins should be vacated. And yet, despite the controversy surrounding them, the Spartans continue to play whenever they can get somebody to play against them.
That’s becoming harder and harder. In the nearly three years since transgender swimmer Lia Thomas competed on the Penn women’s team, the debate over inclusion and fairness in women’s sports has become a political firestorm. In 2021, when Thomas first joined the women’s swim team, nine states had legislation restricting transgender women from women’s sports. That number is now 25. International federations for track and field, cycling, swimming and diving, rugby, and even chess have enacted more restrictive policies. The NCAA has followed the lead of the federations in many sports, and, as a result, the path to participation for transgender women is narrowing as the scrutiny is growing.
Thomas competed on the men’s team before transitioning, then won a national championship during her one season on the women’s team. The senior volleyball player at San Jose State played girls’ club and high school volleyball before playing four seasons of women’s college volleyball, and she has never been an All-American or contended for a national championship. Until this season, there has been no public outcry about safety or fairness related to her. But now her participation is the topic of debate on national talk shows and the subject of multiple lawsuits, and the president-elect has criticized her play. ESPN has spent the past three months speaking with players, coaches, advocates, scientists and politicians, and reviewing court documents, to find out why this controversy erupted out of San Jose State, and what it portends for the future of transgender athletes.
The answer from the Reno rallygoers is clear.
“Men do not belong in women’s sports,” Liilii says. “If you were born a male, you do not belong in women’s sports. This has never been about one individual athlete. This is about safety and fair competition for all women’s sports, as well as the athletes who are pursuing sports at any level.”
The controversy surrounding San Jose State surfaced before the 2024 season even began. In April, website Reduxx published an article contending SJSU had a transgender player on its roster, after receiving a tip from a parent of one of the Spartans’ opponents.
The athlete declined to be interviewed for this story. Because the player in question has not commented publicly on her identity or medical history, ESPN is not naming her.
This is her third season with San Jose State, and she previously played at a different NCAA Division I school. San Jose State has not commented on the athlete’s identity or answered the question of whether she is transgender, citing federal privacy laws. SJSU has maintained that all athletes on its volleyball team are eligible under NCAA policy.
Three months after the Reduxx article published, SJSU co-captains Brooke Slusser and Brooke Bryant played in a tournament in Slovenia with 10 other Mountain West players. After returning from the tournament, Slusser and Bryant met with San Jose State coach Todd Kress and told him some of the Mountain West players expressed discomfort playing against SJSU in the upcoming season because they believed the Spartans had a transgender player on their roster.
Kress was surprised by the apprehension because he thought everyone had been aware of the player’s gender identity for three years. But even if they weren’t, they’d been playing against her for all that time. “I’ve been told that by a number of coaches, those that have chosen to play us,” he told ESPN. “It’s, ‘Game on. Your roster has been your roster for the last three years. Why would we not play you?'”
Kress didn’t foresee multiple forfeits. “I don’t speculate,” he said. “I had too many things to worry about at that time. I was recruiting, I was thinking about preparing for preseason.”
The Spartans started their season well. They played in a Sept. 6-8 tournament in Iowa and defeated the Hawkeyes, the program’s first win over a Big Ten opponent since 1999. Following that match, Gaines shared a video clip on social media of the San Jose State senior spiking the ball. “Not only is this unfair, it’s dangerous,” Gaines wrote.
That post was seen by millions. According to records obtained by ESPN, Southern Utah coach Kacey Nady was among them. She was part of a Sept. 9 text exchange that included the Gaines post as well as an article in which tennis Hall of Famer Martina Navratilova criticized the player’s participation. Nady has not returned a request for comment.
Days later, Southern Utah University canceled its game against the Spartans that was scheduled for Sept. 14 in the Santa Clara tournament.
Kress said he received a phone call from Santa Clara coach Erin Lindsey a few days ahead of the tournament and was told that Southern Utah would not be playing his team. When he asked why, Lindsey said Southern Utah said it had played too many matches and the players needed some time off. “That was all we were told,” Kress said.
What he didn’t know was that the next protest would come from within.
On Sept. 23, San Jose State starting setter and co-captain Brooke Slusser joined the ICONS lawsuit suing the NCAA for allowing transgender athletes in the women’s category. In that lawsuit and in subsequent interviews, Slusser said that one of her teammates is transgender and poses a safety risk to her teammates and opponents. According to ICONS co-founder Marshi Smith, Slusser’s parents reached out to the organization seeking support a week before she joined the lawsuit. Slusser declined to be interviewed for this story; her perspective is represented through public statements and the two lawsuits she is part of.
The player Slusser says is transgender came to San Jose State in 2022 after being recruited by former coach Trent Kersten. She played in 91% of the team’s sets that season and was third on the team in kills. After the season, Kersten left SJSU for Loyola Marymount University, where he is the current coach. He declined to be interviewed for this story, along with four former SJSU players who followed him to LMU.
A former player on the 2022 SJSU team said she found out from a staff member that a player on the team was transgender. The former player, who requested anonymity due to concerns for her safety, said at least a few others on the team knew as well. The former player said that at least one teammate raised questions about fairness but that there was never any locker room tension.
“I hadn’t heard anybody speaking out against it or even saying anything to her about it,” the former player said.
The former Spartan said the player she was told is transgender was well liked by her teammates that season. “Everybody on the team, from my perspective, from that year loved [her],” she said. “She was funny. She’s very out there. She’s just herself. You know?”
Kress replaced Kersten as coach on Jan. 11, 2023. He brought associate head coach Melissa Batie-Smoose with him after they had coached together at two previous schools. He was unaware there was a transgender athlete on the roster during his interview process, but he said he found out from the administration shortly after. “I forget the exact date that I found out,” Kress said. “But when I signed my contract, it was right around that time. It was January of 2023.”
A San Jose State spokesperson, citing privacy laws, declined to answer why Kress was told but the players were not.
Slusser, a transfer from Alabama, joined the SJSU volleyball team in 2023. In the NCAA lawsuit, Slusser said that she was unaware that her teammate was transgender when she moved into an apartment with her and two other players on the team. Sidelined with an injury for part of the 2023 season, the player Slusser says is transgender played in 17 matches and led the team in kills per set. Slusser was one of three Spartans to play in all 31 matches, posting a team-high 753 assists. Slusser said she learned that her teammate was transgender toward the end of that season when she overheard two SJSU students who weren’t on the volleyball team refer to her as a “guy.” According to the NCAA lawsuit, Slusser pressed the students, who told her that her teammate was a “dude.” Slusser said she kept that information to herself.
According to the lawsuit against the NCAA, Slusser noticed during practices before the 2024 season that her teammate, now injury-free, was “hitting the ball with more force than before and far harder than any woman she had ever played against.” Slusser said she expressed concerns for her safety to Kress, who, according to the lawsuit, “brushed Brooke off.”
San Jose State was 8-0 heading into its Mountain West opener against Fresno State on Sept. 24. After a practice in Fresno before the game, Slusser asked to speak with the coaching staff. During that meeting, she shared that she had joined the NCAA lawsuit. The original lawsuit was filed in March 2024 with Gaines as the lead plaintiff, and according to ICONS co-founder Smith, Slusser joined ahead of a deadline for an amended claim.
“I think Brooke knows that I’m not the biggest fan of some of the things that she’s said in the lawsuit because it did damage to some of our other student-athletes,” Kress said to ESPN. “Obviously the whole team finds out, and now we have people on the court, one person that filed a lawsuit and the other person on the court that the lawsuit was filed against. And they have to go on the court and play together.”
Slusser assisted the teammate she says is transgender on 11 kills in San Jose State’s four-set win over Fresno State on Sept. 24. They high-fived each other and shared team huddles throughout the game. Slusser fell during one point and was late joining the huddle. The player Slusser says is transgender reached out and high-fived her when she arrived.
“After the match, there were a lot of people complaining,” Kress said. “This is where I don’t understand sometimes with people in our program, and I’ve told our team this. They were upset with [the player’s] energy on the court that night. I give her credit, because she reacted in a much better way than I would have.”
That same day, ICONS sent a letter to Mountain West university presidents urging them to not let their women’s volleyball teams play against SJSU. ICONS was founded by Smith and Kim Jones in 2022 after Thomas won her national championship in the 500-yard freestyle. Smith is a former national champion swimmer at Arizona, and Jones’ daughter swam in the Ivy League during the 2022 season. Both women know Gaines, who had begun to speak out after the 2022 NCAA swimming season.
“We felt like, even as spectators, to witness young female athletes being harmed, that something needed to be done,” Smith said. “Someone needs to do something about this, in order to correct the policy that allows this. And really to hold the NCAA accountable for allowing it to happen in the first place.”
Records obtained by ESPN show that Boise State general counsel Matt Wilde reached out to a company on Sept. 24 to request a survey for the volleyball team that would be sent the next day. The survey asked players whether they wanted to play their scheduled matches against SJSU on Sept. 28 and Nov. 21 and asked whether any of the players had concerns. To introduce the survey, the following text was included: “It has come to the attention of Boise State University that San Jose State University has a transgender female student-athlete on their roster. Some contend that this transgender student-athlete can jump higher and hit harder than her cisgender peer student-athletes, which raises concerns around the safety of the players on the Boise State volleyball team. As a result, a short survey is appropriate. Your name and answers will not be known to your teammates.”
On Sept. 25, Smith represented ICONS in a Zoom meeting with Boise State athletic director Jeramiah Dickey. Also invited were Wilde, assistant vice president Jennifer White, Doreen Denny from conservative advocacy organization Concerned Women for America, and Idaho Rep. Barbara Ehardt. One of the questions on the table was whether Boise State would forfeit its upcoming matches.
“It was a decision Boise State had to make,” Ehardt said to ESPN. “But I think that we were just able to give them another perspective as they were in the process of making that decision.”
The results of the player survey are unknown, but Boise State announced Sept. 27 that it would not play its Sept. 28 match against SJSU. The school announced Nov. 1 that it would not play the Nov. 21 match either. Both matches were recorded as losses for Boise State in conference play and wins for San Jose State.
The Boise State decision kicked off a cascade of forfeits through the conference. The Broncos were joined by Wyoming and Utah State within the week. Nevada canceled its game as well. All four teams took losses on their conference records. None of the forfeiting institutions cited the San Jose State player as the reason for its decision.
Govs. Brad Little (Idaho), Spencer Cox (Utah), Mark Gordon (Wyoming) and Joe Lombardo (Nevada) all voiced support on social media for the volleyball teams in their states, citing the need to protect women’s sports.
“It’s amazing that other teams in the conference can stand up and say ‘No, we’re not doing this,'” Slusser said in an interview with Fox News. “And yet our school is still OK with having one person on our team that’s causing all these issues, and yet will not get rid of them.”
Standing in front of a media scrum in a narrow hallway, SJSU co-captains Slusser and Bryant fielded questions after the team’s first loss. The Spartans came to Fort Collins, Colorado, on Oct. 3 with a 9-0 record, but they hadn’t played a conference game since their Sept. 24 victory over Fresno State.
San Jose State lost to the Rams in straight sets.
“The saddest part is we said that we lost because we didn’t play like ourselves tonight,” Slusser said, “and there was so much more that we walked away not giving that we should’ve.”
When asked whether the outside noise contributed to the team not playing like itself, Slusser quickly responded. “No,” she said. “At the end of the day, it’s volleyball. It’s a game. So we all know that when we walk into that gym, it doesn’t matter what’s happening in your personal life, what’s happening with a teammate, it doesn’t matter. You go in there and you work your butt off for each other because we love each other.”
But divisions within the locker room were starting to grow.
Six weeks later, Batie-Smoose, Slusser, and 10 other current and former Mountain West players filed a federal lawsuit, also sponsored by ICONS. In it, the plaintiffs alleged the player they say is transgender and two teammates left the team hotel the night before the Colorado State game and met with a Rams player. The player they name in the lawsuit and the Colorado State player devised a plan to leave parts of the court open, according to the lawsuit, making Slusser vulnerable to kills from the Colorado State player. The plan was to “physically retaliate” for Slusser’s involvement in the NCAA lawsuit. One of the SJSU players present later told Kress and Batie-Smoose about the meeting and the collusion to “throw the game.”
Batie-Smoose separately filed a Title IX complaint Oct. 29 with SJSU, the Mountain West Conference and the NCAA to report these allegations and her perception that Kress did not take them seriously — the latest action, she claimed, in a pattern of preferential treatment for the player she says is transgender. Batie-Smoose has not responded to multiple interview requests from ESPN. Kress denied those allegations.
“There are people on this team that don’t want certain people to be able to play and to continue to stay on this team,” Kress said. “And the university and I have made the decision that everyone certified to play volleyball on San Jose State will remain a part of this program until the end of the year.”
In their lawsuit against the Mountain West filed Nov. 13, the plaintiffs asked for the player they say is transgender to be declared ineligible, for the forfeits to be deducted from SJSU’s win total and for all of the team’s wins this season to be vacated. In her signed declaration to the court, Slusser wrote of her decision to participate in a lawsuit that could adversely affect her team.
“Volleyball is very important to me,” Slusser wrote. “However, some things are more important to me than winning a volleyball match or even a conference championship. It is more important to me that our team win fairly, and it is not safe or fair to other teams for the SJSU Team to compete with a male athlete. Therefore, I am knowingly signing this declaration … because I believe it is the right thing to do.”
Among the allegations is that the Mountain West Conference created a new transgender participation policy that was “designed to penalize First Amendment protests supporting the rights of women’s volleyball players in the MWC.” The lawsuit contends that, on Sept. 27, 2024, the transgender participation policy was “drafted by the office of the MWC commissioner, inserted in the online version of the MWC handbook, and posted on the MWC website.”
Documents obtained by ESPN show the identical policy in place as early as Aug. 16, 2024. It includes the provision that if a team refuses to play against a team with an eligible transgender player, the team “shall be deemed to have forfeited the contest.” It goes on to say that the forfeiting team will be charged with a loss and the opposing team with a win for conference records, standings and conference tournament eligibility.
A spokesperson from the Mountain West said the transgender participation policy was finalized and distributed to member institutions on Aug. 25, 2022, following the Thomas controversy at Penn and the ensuing NCAA policy changes, and hasn’t been amended since.
On Nov. 15, the Mountain West announced that it had concluded its investigation into Batie-Smoose’s Title IX complaint and did not find evidence to corroborate her claims of collusion. A conference source told ESPN that a third-party investigator conducted interviews with players and coaches and that third-party volleyball experts reviewed the match video and match statistics. Kress denied the allegations from the outset, saying the complaint was “littered with lies.”
Attorney William Bock, who represents Slusser and Batie-Smoose, said the investigation was “rushed, sloppy, incomplete and infected with bias.”
The NCAA adopted a policy governing transgender athlete eligibility in 2010. That policy came out of a think tank hosted by the National Center for Lesbian Rights and the Women’s Sports Foundation in 2009. Helen Carroll from NCLR and LGBTQ+ sports equality advocate Pat Griffin facilitated discussion with doctors, scientists and transgender athletes and wrote the longer guidance to accompany the policy. It required transgender women seeking eligibility for the women’s category in any of the NCAA’s three divisions to suppress their testosterone levels for one year before competing. Transgender men wanting to compete in the men’s category could do so at any time, and they could no longer compete in the women’s category if they began taking testosterone as part of their medical transition.
“It worked pretty well,” Griffin said. “It was pretty uncontroversial for 10 years until it became a political football.”
In December 2021, Thomas swam the best time in the country in the women’s 200-yard and 500-yard freestyle at a midseason meet. Thomas, a senior at Penn, had competed on the men’s team from 2017 to 2020. Thomas began hormone therapy in May 2019 and would have been eligible in the women’s category for the 2020-21 season, but it was canceled due to COVID-19. Thomas got blood tests once a quarter to measure her testosterone level, which she said had cratered to “almost zero.”
“My coach and compliance officer helped me compile those and send those off, but it was a lot of paperwork and medical records,” Thomas said. “And then, after [the NCAA] said I was eligible, I had to continue to submit regular blood work all through my senior season, demonstrating my testosterone levels were under the threshold.”
Her success in the women’s category raised questions about fairness, from within the Penn locker room and outside of it. It also spurred criticism of the NCAA’s transgender eligibility policy.
On Jan. 19, 2022, the NCAA changed its policy and adopted a sport-specific policy that deferred to standards set by individual sports’ national governing bodies.
In March 2022, Thomas won a national championship in the 500-yard freestyle and finished tied for fifth (with Gaines) in the 200-yard free and eighth in the 100-yard free.
A flow of policy changes followed. USA Swimming, for example, set its testosterone limit for elite transgender women at 5 nanomoles per liter for 36 months. USA Volleyball required transgender women 18 and over to maintain testosterone levels of under 10 nmol/L for a minimum of one year.
Sadie Schreiner, a track athlete at the Rochester Institute of Technology, went through the NCAA’s new eligibility process in 2023.
Schreiner competed in boys’ track and field through high school and began to socially and medically transition her senior year. Schreiner planned to compete on the men’s track team at RIT her freshman season. That changed when she began testosterone suppression.
“I was under the assumption that not enough would change,” Schreiner said. “I was nowhere close to my time in the span of just two months of training by myself. And so with that, I ended up taking a year off.”
The NCAA defers to USA Track & Field regulations, which have a testosterone limit of 10 nmol/L. Schreiner said her level dropped to 0.42 nmol/L within months of beginning hormone therapy. As the season approached, Schreiner went to Trillium Health to have the required lab testing done.
“It’s completely out of pocket,” Schreiner said. “My college doesn’t set up the appointments; my coaches don’t help me with it. I manage my levels. I have to go find my doctor, use my insurance, do everything by myself. Then I bring a lab report to my coaches. And at that point, it gets sent to the NCAA.”
NCAA policy requires that schools submit the documentation. It’s not a rubber-stamp approval process. In Schreiner’s case, the NCAA had follow-up questions, which delayed her start to the season. Spironolactone, an often-used hormone therapy for medical transition for transgender women, is a banned substance in the NCAA. Schreiner needed to get additional documentation from her doctor because she was prescribed that drug.
Eventually, the NCAA approved her eligibility for the women’s team. Still, throughout her first season, she received hateful messages on social media. “I spent a full year dealing with this wave of hate that only came directly after I competed,” Schreiner said.
The college career of the San Jose State volleyball player who is said to be transgender has bridged the shift in NCAA regulations. She was ruled eligible under both policies.
However, some argue that testosterone suppression is insufficient to create a fair environment for transgender women in women’s sports. Testosterone-driven puberty provides physiological advantages for those assigned male at birth that influence athletic performance, especially when it comes to power, strength and speed. Testosterone suppression mitigates some of those physiological differences, but not entirely in every case. For example, one study compared the number of pushups, situps and times of a 1.5-mile run that transgender women and transgender men in the military could do before hormone therapy and after hormone therapy. It found that transgender women performed situps and pushups on par with their cisgender women peers after two years of testosterone suppression but that their 1.5-mile times were still faster than those of their peers.
There is considerably less data measuring the effects of testosterone suppression on athletic outcomes for those who never went through testosterone-driven puberty or who began suppression in the early pubertal stages. The scientific literature is developing and beginning to answer some of the more complicated questions about transgender athletes, but the political climate has disrupted the policy-making process.
“It’s become impossible to have a reasonable conversation about this anymore, even among people who would like to have a reasonable policy conversation,” Griffin said. “Political pressures are so intense right now.”
Some of the criticism of the San Jose State player’s participation centers around safety. In the lawsuits, she is said to hit the ball so powerfully that her kills travel 80 mph. The lawsuit includes no data to support that claim, but it would make her as powerful as some of the hardest-hitting men’s volleyball players in history.
“We saw this male athlete bounce a ball in front of a libero [defensive specialist], and it was undefendable,” Liilii said to ESPN. “We just all agreed that this is unfair. This is unsafe.”
Former Nebraska coach Terry Pettit, whose daughter played for Colorado State, has seen the San Jose State senior compete in person, and he believes her power has been exaggerated.
“She happens to be the kill leader on the team,” Pettit said. “But to think that she’s hitting any harder than people if you look at the top-10 volleyball teams in the country, that’s not the case.”
The player who is said to be transgender leads her team in kills (297) and is third in hitting percentage (.251). She is fourth in the Mountain West in kills per set with 3.96. She does not rank in the top 10 in the Mountain West in hitting percentage or in the top 150 in the NCAA. ESPN used camera calibration software to analyze video of five of her spikes in five different games, including the spike shared by Gaines from the Iowa game (51 mph) and another that went viral against San Diego State (60 mph) to estimate their velocity. The average speed of her spikes was 50.6 mph. The fastest was estimated to travel 64 mph.
“A lot of players that I talk to have been like, ‘Have you been in the Nebraska gym? Have you been in the Texas gym?'” said former Texas player and AVCA national player of the year Logan Eggleston. “These biological women are hitting the ball just as hard or maybe, probably, harder and jumping even higher and all these things. That’s kind of the conversation I’ve been hearing, is, ‘Yeah, this woman at San Jose State, yes, she might be transgender, but that doesn’t make her this superhuman athlete that’s crushing other people.'”
The San Jose State player is not an outlier when it comes to her size. Listed at 6-foot-1, she is 1 inch taller than the average height of the 120 players listed as hitters across the Mountain West Conference. The tallest player in the Mountain West is Kekua Richards at Colorado State, who is 6-7. Of the teams that played in the final four last season — Texas, Nebraska, Wisconsin and Pittsburgh — the average height is 6-2½. The tallest is 6-9 Anna Smrek of Wisconsin.
Multiple clips of the San Jose State player have been shared across social media, showing her striking the ball hard and sometimes hitting opposing players with the ball.
“I get hit in the face in practice every single day — either blocking or playing back-row defense,” former Pitt and Penn State star Serena Gray said. “This is normal.”
“I think it was ridiculous how people kept saying, ‘Oh, this is why it’s dangerous,'” Michigan State outside hitter Akasha Anderson said. “At the end of the day, all these top-25, top-50 big-time programs have male practice players, male coaches constantly playing. If we’re talking about danger, I feel like that’s not a fair argument to make in this situation.”
Anderson grew up in the same area as the San Jose State senior and has known her since Anderson was 13. Anderson said she learned the player was transgender when they were both in high school. The San Jose State senior played girls club volleyball as well as girls high school volleyball.
“It’s been a weird transition to see that she’s in her last year and it’s now becoming a problem,” Anderson said.
Although the San Jose State player has not spoken publicly about how the scrutiny of these past few months has impacted her, Lia Thomas, for one, knows how it feels.
“It can be just extremely invasive and dehumanizing,” Thomas said. “And it’s in a way I think very few people ever experience. To have my own personal identity and personhood turned into a culture war talking point just totally takes all my humanity away. It can be very difficult to keep trying to persevere through that.”
Standing on a stage in Reno, Nevada, for a rally in a key swing state before the election, three days before the Nevada volleyball players gathered in the same city, vice presidential candidate JD Vance is asked about transgender athletes.
“Maybe we have to amend the law or maybe it’s a matter of enforcement, but we’ve got to make clear that Title IX protects the rights of our young girls to compete against young girls,” Vance said. “This is a public safety issue, especially with contact sports. I’m the father of a 2-year-old daughter. I don’t want my little girl to grow up to compete in sports and then to get bludgeoned by a man. That’s disgusting.”
Title IX is a 37-word amendment to an omnibus education bill that was passed into law in 1972. Though largely associated with women’s sports, Title IX seeks to eliminate sex-based discrimination in schools, inside and outside of the classroom. There is no federal statute explicitly governing transgender athlete policies.
The interpretation of Title IX and how it applies to transgender students in classrooms and on competition fields has become a political tug-of-war fought over multiple presidential administrations. In May 2016, the Barack Obama administration issued a Dear Colleague Letter, which provided guidance from the Department of Education stating that to be compliant with Title IX, schools needed to affirm and support transgender youth. The guidance applied to classrooms, locker rooms and sports in elementary and secondary schools.
“It is appropriate for a school to have sports that are designated for their female students,” said law professor Erin Buzuvis, who has published multiple articles on the application of Title IX to transgender students in schools. “I would say that to be consistent with Title IX, [schools] must open those sports to transgender women as well. Because if not, what is happening is discrimination based on the relationship between one’s natal sex and one’s gender expression and gender identity.”
In response to the 2016 guidance, 23 states sued the administration, stalling its implementation. Under the first Donald Trump administration, the guidance was rescinded. In 2019, after transgender sprinter CeCe Telfer won a Division II national championship in the 400-meter hurdles while running at Franklin Pierce University, the Department of Education opened a Title IX investigation into FPU, threatening its funding unless the university changed its inclusive transgender athlete policy. In 2020, the Department of Education took aim at Connecticut’s high school sports governing body by trying to withhold a $3 million grant for magnet schools in New Haven unless they left the Connecticut Interscholastic Athletic Conference, which has an inclusive policy. Two transgender girls, Andraya Yearwood and Terry Miller, won multiple Connecticut state championships in girls track from 2017 to 2020.
Under the Joe Biden administration, Title IX regulations have continued to evolve. In April 2023, the Department of Education published a notice of proposed rulemaking on sex-related eligibility standards for school sports teams that criticized broad restrictive policy. When a finalized rule was published a year later, it focused on regulations that dealt with sexual assault and harassment. Transgender athletes were not mentioned.
The Department of Education said it received more than 150,000 comments on its proposed regulations for transgender athletes. “… the Department intends to publish a notice of final regulations related to sex-related eligibility criteria for male and female athletic teams separate from these …” the department wrote. Those regulations have not been released.
The lack of overarching legislation has left a patchwork of laws and policies that vary based on sport, geographic location and the level of competition, all affecting a statistically small number of athletes. According to one NCAA source, of the approximately 500,000 NCAA athletes, no more than .01% identify as transgender.
Since the March 2020 passage of Idaho’s HB 500, the first law to restrict access for transgender girls and women in girls’ and women’s sports, 24 additional states have passed similar legislation. The primary difference between those laws and policies like the NCAA’s is they are rigid, meaning there is not a path to participate in girls and women’s sports for transgender women at all, even if they suppress their testosterone. In April 2024, the NAIA banned transgender women from competing in women’s sports across the league.
For some advocates of restrictive policy, including president-elect Trump, that is the preferred standard. During a Fox News town hall that aired Oct. 16, Trump referenced a play from the Oct. 10 game between San Jose State and San Diego State in which the player who is said to be transgender spiked the ball, her opponent dug it and the play continued. A video review showed the ball hit the San Diego State player in the arm.
“I saw the slam, it was a slam. I never saw a ball hit so hard, hit the girl in the head,” he said. “But other people, even in volleyball, they’ve been permanently — I mean, they’ve been really hurt badly. Women playing men. … But you don’t have to do the volleyball. We stop it. We stop it. We absolutely stop it. You can’t have it.”
According to Gallup, 34% of Americans in 2021 endorsed transgender athletes being allowed to play on sports teams that match their gender identity. In 2023, that number dropped to 26%. Another poll, conducted by The Washington Post and the Kaiser Family Foundation in 2023, found 34% of Americans think transgender women should be allowed to compete on women’s teams in college and 37% think transgender girls should be allowed to compete in girls’ youth sports.
Candice Jackson, who worked in the first Trump administration as acting assistant secretary of the Department of Education Office for Civil Rights and deputy general counsel, told ESPN there needs to be a “bright line” in sports. “From recreational all the way through competitive, offering women-only sports is almost always going to be a beneficial and necessary thing to provide women with equal opportunities,” Jackson said. “And if you’re going to have something that you say is women only, then it needs to be based on the sex of participants and not their identities.”
Although Trump has not yet specified what actions his administration will take to restrict the participation of transgender athletes when he becomes president, he made his intentions clear in a Nov. 2 rally in Salem, Virginia: “We will of course keep men out of women’s sports.”
It’s senior day at San Jose State on Nov. 16, and the Spartans huddle on the sideline before the start of a decisive fifth set against Colorado State, the top team in the Mountain West Conference.
San Jose State trails 5-3 when Brooke Slusser bump sets to the back row. The player Slusser says is transgender approaches and elevates, her shins practically parallel to the court. She pikes her body as her right hand contacts the ball. It screeches past the Rams’ double block and onto the court for a San Jose State point. By the end of this day, the clip of this kill will make the rounds on social media. Some will watch with admiration, others with disdain.
The Spartans win eight of the next 11 points to take a 12-8 lead. But the Rams respond, and Spartans coach Todd Kress calls a timeout with the score 12-10. Melissa Batie-Smoose isn’t in the huddle or even in the gym. She hasn’t been for the past five games, since she went public with her Title IX complaint.
“We didn’t have to have the division of a team, or division of friends, or a division of family,” Kress said. “But unfortunately, that’s where we are right now.”
On the first point after the break, Slusser gets a perfect pass. With all three attackers available, she chooses to go behind her back to the player she says is transgender, who delivers her 24th kill of the day to give Slusser her season-high 48th assist.
On match point, the player Slusser says is transgender returns to the service line. She tucks wisps of hair that have escaped her ponytail behind her left ear. She bounces the ball, slaps it into the ground. She steps with her right leg, then with her left. She throws the ball into the air and leaps. Her right hand contacts the ball and sends it deep into the Rams’ court. The Colorado State libero shanks the pass into the stands.
Slusser throws her arms into the air and looks up to the ceiling. The Spartans, those on the court and those from the bench, mob their teammate who delivered the game-winning ace. She smiles and hops and shares high-fives as the Spartans celebrate around her. Slusser slides along the outskirts of the circle, hopping along and smiling wide. She peels off to start a handshake line with the Rams.
The Spartans and the Rams will be back on a volleyball court this week. The Rams will be the No. 1 seed in the Mountain West tournament in Las Vegas. The Spartans, thanks in part to six conference forfeits, will be seeded No. 2.
U.S. District Judge S. Kato Crews denied the emergency injunction that sought to make the San Jose State senior ineligible. His ruling was based not on fairness or safety but on established conference policy on forfeits and the teams’ awareness of it.
So the San Jose State senior will get one more game, maybe two.
After all the forfeits, allegations, protests and lawsuits, after the infighting, rancor and division, the next set of wins and losses will be decided on the court.