The federal appeals court based in Denver declined on Tuesday to order a Colorado Springs-based athletic organization to bar a transgender woman from participating on her college’s volleyball team and alter the record of wins and losses among schools immediately before a tournament is set to begin on Wednesday.

The decision comes one day after a trial judge rejected the request for a preliminary injunction, finding the plaintiffs had not shown they would be “irreparably harmed,” nor would they likely succeed on the merits of their challenge to the Mountain West Conference’s participation policy for trans athletes.

The MWC, which is a private membership organization of universities in Colorado and eight other western states, has had a policy in place since August 2022 allowing for the participation of trans athletes. If a school refuses to compete against another MWC team because of a trans player, the refusing team will have a loss recorded against them.

On Nov. 13, two weeks before the MWC women’s volleyball tournament was to commence in Nevada, nine current players, two former players and an associate head coach filed suit in federal court to challenge the legality of the conference’s policy. They also asked to immediately remove a trans player from San José State University’s team, rescind all of the recorded losses and recalculate the tournament eligibility.

In his Nov. 25 order, U.S. District Court Judge S. Kato Crews noted a preliminary injunction 48 hours before the start of the tournament would be ill-advised, considering the policy’s existence for two years and players’ knowledge of the consequences since at least the early fall.

“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,” wrote Crews, an appointee of President Joe Biden.

Therefore, the plaintiffs’ delay “was not reasonable,” he added.

The plaintiffs immediately appealed to the U.S. Court of Appeals for the 10th Circuit. However, Judge Nancy L. Moritz and Senior Judge Carlos F. Lucero agreed with Crews’ assessment of the delay.

“Notwithstanding plaintiffs’ contentions to the contrary, that conclusion appears well supported by the district court’s factual analysis,” they wrote on Nov. 26.

The underlying lawsuit revolves around one member of San José State’s volleyball team, Blaire Fleming. Referring to her as a “male” and alleging her to possess “explosive jumping ability” and “Retained Male Advantage,” the suit claimed violations of Title IX — the federal law prohibiting sex discrimination in educational programs.

The plaintiffs — who include Fleming’s teammate, Brooke Slusser, and her associate head coach, Melissa Batie-Smoose — also alleged the MWC’s policy of recording losses for refusals to play amounted to violations of their First Amendment rights. Utah State University filed its own set of allegations in the case, claiming some of its players indicated Fleming was “dangerous and/or were concerned about their safety.”

The defendants responded to the request for a preliminary injunction by noting the conference has no rule requiring its member schools to include or exclude trans players. But in the interest of “administering a functional league,” the conference adopted a rule in 2022, ratified by its members’ athletic directors, for how to log wins and losses when one team refuses to play against another.

The rule was subsequently published in the conference’s handbook in September 2024. Around that time, schools in Idaho, Wyoming, Utah and Nevada pulled out of games against San José State and acknowledged publicly the consequence would be a recorded loss.

“Tellingly, no MWC institution, coach, or player requested that MWC rescind or modify the (policy) at any time in the years following its implementation — until the commencement of the current litigation,” wrote attorneys for the conference and its commissioner.

Todd Kress, the head coach of San José State and a named defendant, responded separately to criticize the plaintiffs for being “unhappy with the foreseeable and fully transparent consequences of their decisions” to forfeit against his team.

Crews, in his order, noted the plaintiffs sought to change the status quo that existed since August 2022. The decision to file suit two years later and several weeks after teams began forfeiting to San José State “weakens their arguments regarding irreparable harm,” he wrote.

As for the plaintiffs’ legal contentions, Crews noted federal appeals courts, including the 10th Circuit, have concluded discrimination based on gender identity amounts to discrimination on the basis of sex, which the U.S. Constitution’s equal protection clause prohibits.

Based on that, he believed the plaintiffs were unlikely to succeed on their underlying claims.

The plaintiffs appealed to the 10th Circuit, arguing Crews ignored the “irreparable harm of Plaintiffs putting their bodies at risk of injury” because of Fleming’s “leaping ability and hitting power,” wrote attorney William Bock III.

The two judges who declined to override Crews’ order — Moritz, a Barack Obama appointee, and Lucero, a Bill Clinton appointee — noted the disruption created by the last-minute request was grounds by itself to deny the injunction.

“Plaintiffs’ claims appear to present a substantial question and may have merit,” they acknowledged. “But plaintiffs have not established clear entitlement to relief, and however potentially meritorious, their showing does not rise to the level of clear entitlement under the appropriate standards.”

The case is Slusser et al. v. The Mountain West Conference et al.