Judge S. Kato Crews, a progressive appointee by President Biden to the U.S. District Court in Colorado, refused to allow an injunction against the San Jose State women’s volleyball team from including a biologically male “transwoman” (above) to compete with the team in a women’s volleyball conference tournament this week. He ruled that appellate and Supreme Court precedents clearly establish that the protections of Title IX and the 14th Amendment apply to transgender individuals.

A key factor in the decision seems to be that the plaintiffs, which are the other colleges in San Jose State’s conference, a current co-captain of the San Jose team, other former players and the recently-suspended assistant coach, should have filed the suit earlier. The conference’s transgender participation policy has been in effect since 2022 and four conference opponents and one non-conference opponent forfeited games against San Jose State beginning in September.

“The rush to litigate these complex issues now over a mandatory injunction,” Crews ruled, “places too a heavy burden on the defendants”—the Mountain West Conference and its commissioner, two administrators at San Jose State, the school’s head volleyball coach and the board of trustees of the California State University System. That’s a reasonable judicial call under most circumstances, but the judge and the entire pro-trans movement in the U.S. is now at the mercy of moral luck. That is the annoying life reality that random occurrences out of the control of decision-makers have a way of retroactively defining a decision as either prudent and wise or reckless and wrong. Crews’ decision neatly tees up the perfect conditions for moral luck to settle the trans athletes in women’s sports controversy

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