US judge rejects request to recuse from case over courtroom pronoun policy

By Nate Raymond

Feb 24 (Reuters) - A U.S. judge on Monday rejected arguments that he should recuse himself from hearing a lawsuit challenging a collegiate athletic association's policy on the participation of transgender athletes because of a courtroom protocol he adopted recommending lawyers refer to people by their preferred pronouns.

U.S. District Court Judge S. Kato Crews in Denver wrote that lawyers for a group of women's collegiate volleyball players challenging the Mountain West Conference's policy were confusing "respect and courtesy" for bias by the judge in their case.

Nine players along with others filed the lawsuit last year after three other schools' teams refused to play San Jose State University (SFSU)'s women's volleyball team, which included a transgender woman during its 2024 season. The plaintiffs include players from rival teams and one from San Jose State.

The refusals to play by Utah State University, University of Wyoming and Boise State University were considered to be forfeitures under a transgender participation policy adopted by the Mountain West Conference in 2022.

The conference, which participates in the NCAA Division I, has members schools in a broad part of the western United States.

While the conference had no policy on whether schools should roster a transgender athlete, any refusal to compete with a school that chose to do so would be deemed a forfeiture.

The plaintiffs argue that the policy constitutes sex discrimination under Title IX of the Education Amendments of 1972 and infringes their rights to free speech and equal protection under the U.S. Constitution's 1st and 14th Amendments by punishing boycotts.

They asked Crews, an appointee of Democratic former President Joe Biden, to recuse himself from the case because he had adopted a courtroom protocol, also used by some other judges in the Colorado federal court, that contained the policy on the use of preferred pronouns in court.

The policy encourages counsel to identify the preferred pronouns of counsel, litigants and witnesses and for lawyers to refer to individuals by their applicable pronouns. Some other judges in other courts nationally maintain similar policies.

The plaintiffs, who have used "he/him" pronouns throughout the case when referring to the transgender woman athlete, argued the courtroom policy restricted their speech and that Crews through its adoption created an appearance of bias.

But Crews said he never required any party to use "she/her" pronouns when referring to the athlete and had said that while he would be using those pronouns, his decision to do so should not be construed as him having prejudged the case.

"Plaintiffs’ speech has neither been restricted nor compelled in this case, and they point to zero examples of this Court enforcing any such restrictions or compulsions on them," Crews wrote.

He said his use of she/her pronouns when referring to the athlete was "hardly unique in the judiciary," citing instances in which other judges and even the U.S. Supreme Court have used a party's preferred pronouns "out of courtesy and respect, not out of bias and prejudgment."

"The Court is duty-bound to show respect and courtesy to all involved in, or affected by, these judicial proceedings," he wrote. "It will continue to do so. And no party should continue to confuse the Court’s show of respect and courtesy for bias and prejudgment."

William Bock, a lawyer for the plaintiffs, said they stood by their position that Crews should recuse himself. No decision has been made on whether to appeal his decision, he said.

The case is Slusser v. Mountain West Conference, U.S. District Court for the District of Colorado, No. 24-cv-03155.

For the plaintiffs: William Bock III of Kroger, Gardis & Regas

For Mountain West Conference: Wesley Powell of Willkie Farr & Gallagher