Transgender-athlete lawsuits roiling San Jose State volleyball trace back to Stanford tennis star

Former Stanford All-American tennis player Kim Jones, the mother of four college swimmers, watched in disbelief and outrage as transgender swimmer Lia Thomas outpaced Jones’ oldest daughter, Raime, to win race after race in 2022 Ivy League competitions when Raime swam for Yale.

“It was an eye-opening experience that I realized no other woman should face again,” said Jones, 51, who lives in Connecticut and played at Stanford from 1992-96 where she earned degrees in mechanical engineering. “Sports have been my life. Sports need to be safe. They need to be fair.”

In 2022 Jones co-founded the non-profit Independent Council on Women’s Sports, which has crowdfunded more than $1 million to bankroll a pair of lawsuits, one aimed at the governing body of college sports — the NCAA — and the other targeting San Jose State University over the alleged presence of a transgender player on the Spartan women’s volleyball team.

But another women’s group, the nonprofit National Women’s Law Center, has squared up in defense of transgender athletes competing in women’s sports.

“It’s just a lot of fear mongering,” said Shiwali Patel, senior director of safe and inclusive schools at the National Women’s Law Center, based in Washington, D.C., which seeks to combat gender inequality via legal action and lobbying — arguing there’s no evidence of transgender women dominating in girls’ and women’s sports.

The battle has put San Jose State at the center of a national dispute over transgender athletes in women’s sports. This week, Jones’ ICONS group asked a Colorado judge to remove the transgender player from the Spartans before the Mountain West Conference tournament begins next week, with an automatic bid to the NCAA Tournament on the line.

Proponents and opponents of transgender women in women’s sports disagree not only on who gets protected under federal anti-discrimination law but on the very definitions of “woman” and “man.”

College sports, too, are divided. The NCAA allows transgender women to compete on women’s teams after a year of testosterone-suppression drugs if their levels of the hormone stay below certain thresholds. The California Community College Athletic Association governing the state’s community college teams lets athletes compete under their gender identity without testosterone limits. But the National Association of Intercollegiate Athletics, governing smaller mostly private and faith-based colleges’ programs, bans transgender women from women’s sports.

Lately, the controversy has erupted locally at the high school level where the California Interscholastic Federation allows transgender athletes to play high school sports in accordance with their gender identity. A Christian high school from Merced this week forfeited a girls’ volleyball match against a San Francisco private school, alleging a male athlete was on the Bay Area team.

Jones’ group filed its first lawsuit, a 200-page class-action complaint against the NCAA and others, in March in federal court in Georgia, and this fall the Spartans’ co-captain Brooke Slusser signed on as a plaintiff. The lawsuit claims the NCAA’s transgender policies deter women from college sports by threatening female athletes’ safety, making competitions unfair and diverting sports opportunities for women to transgender women, described in the lawsuit as “men.”

The plaintiffs claimed that in every NCAA sport, a transgender woman’s allowable amount of testosterone is higher than a cisgender woman could produce without doping. NCAA volleyball adheres to USA Volleyball’s guidelines for transgender athletes, which states trans players’ testosterone levels “must not exceed the upper limit of the normal female reference range for their age group.”

Even with testosterone lowered, transgender women retain physical advantages, the lawsuit claimed, and cited Thomas’s progression from No. 554 in the U.S. in the 200-yard men’s freestyle to the top ranks of women’s swimming.

In a court filing last week, the National Women’s Law Center, seeking to counter the claim that transgender women have a physical advantage, noted that in the 2022 championships, Thomas placed last in the women’s 100-yard freestyle final.

The NCAA, in a June legal filing, attacked the lawsuit for what it called extensive irrelevant facts and an attempt to “advance a political agenda.”

On Sept. 24, ICONS sent a letter to the presidents of all 14 schools in the NCAA’s Mountain West Conference, including San Jose State, demanding they ban transgender women from women’s sports. Over the just-concluded season, four schools forfeited women’s volleyball matches rather than play San Jose State.

This month, Slusser, her team’s assistant head coach, two former Spartans women’s volleyball players and eight other players from the four schools that forfeited, filed a second, 128-page lawsuit, in Colorado federal court. Its targets include Spartan women’s volleyball coach Todd Kress and two school officials, accusing them of “a purposeful and illegal assault on the rights of women athletes.”

Lawyers for Kress, in a court filing Tuesday, argued that discrimination on the basis of transgender status is illegal under the federal anti-discrimination law Title IX and the U.S. Constitution’s Equal Protection Clause.

The second ICONS-funded lawsuit claimed, without providing evidence, that powerful spikes by the alleged transgender Spartan player show “retained male advantage” that increases players’ risk of concussion from spiked balls.

Science around the effects of testosterone suppression, and alleged retained advantage, is inconclusive, Patel said.

These court disputes reflect an evolution of the furor and legal wrangling that kicked off about a decade ago over transgender kids using school bathrooms that did not match their birth sex, said New York lawyer Andrew Miltenberg, a Title IX specialist. The issue gained volatility in March 2022 when Thomas, a University of Pennsylvania women’s swimmer, became the first openly transgender athlete to win an NCAA Division I national championship.

Both sides of the debate cite Title IX, with advocates for transgender women asserting it protects their right to play and opponents arguing that letting transgender women play violates Title IX by taking opportunities away from those it was intended to benefit.

Jones said no matter how courts decide on the ICONS lawsuits, she and the organization will continue to fight. Patel said her group is not letting up, either.

Meanwhile, San Jose State is facing a relatively new legal problem that has no easy answers and no scientific consensus pointing toward a resolution, Miltenberg noted.

“I don’t think schools are equipped to make the decisions that we’re talking about right now,” Miltenberg said. “And I’m sure the landscape will shift a little or a lot, depending on the leanings of the Supreme Court and Congress and the party in power.

“This is going to be a battle that’s fought for a long time.”