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Boise State volleyball players join lawsuit against Mountain West on transgender player

Joined by Riley Gaines, a former swimmer at the University of Kentucky who has sued the NCAA, Idaho Gov. Brad Little touts his executive order, called the Defending Women’s Sports Act, on the Capitol steps in late August. (Darin Oswald)
By Shaun Goodwin The Idaho Statesman

Two Boise State volleyball players have joined a lawsuit against the Mountain West, Commissioner Gloria Nevarez, and four San Jose State officials. The lawsuit pertains to a transgender athlete on San Jose State’s volleyball team and alleges violations of Title IX and the players’ First and 14th Amendment rights.

Boise State forfeited both of its regular-season games against San Jose State, on Sept. 28 and Nov. 21, but did not explicitly explain why. Some Idaho officials, including Republican Gov. Brad Little, praised Boise State and referenced Little’s Defending Women’s Sports Act.

Twelve people — three San Jose State players and one assistant coach, two Nevada players, three Wyoming players, one Utah State player, and two Boise State players — are among the plaintiffs.

The two Boise State athletes involved are Katelyn Van Kirk and Kiersten Van Kirk, sisters from Bozeman, Montana.

The lawsuit was filed in the U.S. District Court for Colorado. The Mountain West headquarters are in Colorado Springs.

The lawsuit is separate from Gaines vs. NCAA, led by former Kentucky swimmer Riley Gaines, which aims to ban transgender women from competing on women’s college sports teams.

The Mountain West lawsuit argues that San Jose State’s transgender player should not be allowed to play in the Mountain West Tournament, scheduled for Nov. 27-30 in Las Vegas.

The lawsuit cites a violation of Title IX, a federal law that protects students from discrimination based on sex, sexual orientation and gender identity in educational programs and activities that receive federal funding.

San Jose State spokesperson Michelle Smith McDonald told the Idaho Statesman in September that the school and its student-athletes are in “full compliance with NCAA rules and regulations.”

A significant part of the lawsuit requests that the teams that forfeited games — Boise State, Utah State, Wyoming and Nevada — should not have those games counted as losses.

The lawsuit notes that the Mountain West’s Transgender Participation Policy was instituted on the same day that Boise State became the first Mountain West team to forfeit and that it was done so to quell future forfeitures. It adds that doing so was intended to prevent athletes from exercising their rights in the First Amendment and the Equal Protection Clause of the 14th Amendment to protest playing against a transgender athlete.

Along with erasing the losses for the teams that forfeited, the lawsuit also asks that San Jose State’s wins via forfeit be taken away.

If those games weren’t counted as forfeits, it would have a major impact on the Mountain West standings heading into the six-team conference tournament. Boise State sits comfortably in sixth with an 8-7 conference record — Utah State sits a spot above the Broncos at 9-5, while San Jose State is in second at 11-5, but many of those wins are because of forfeits.