Judge rules against parents who wore wristbands to protest transgender student athlete
A federal judge ruled Monday that two fathers cannot wear pink wristbands with two X’s — the symbol for female chromosomes — drawn on them in opposition to a transgender high school athlete on one of their daughters’ rival soccer teams.
Kyle Fellers and Anthony Foote sued administrators at Bow High School in south-central New Hampshire last year after they were banned from school property for wearing the wristbands to a match against Plymouth Regional High School, whose girls’ team includes a transgender player, 16-year-old Parker Tirrell. They asked a federal district court to allow them to silently wear the wristbands and display signs objecting to trans athletes in girls’ sports at school events.
Officials temporarily barred both men from school grounds for distributing and refusing to remove the wristbands during the Sept. 17 game between Bow and Plymouth Regional. Foote also placed a poster that read “Protect Women’s Sports for Female Athletes” on his Jeep and held the sign up in the parking lot after the game ended.
According to court documents, Fellers and Foote previously discussed with other Bow High parents the possibility of more vocally protesting the match once they learned their daughters would be competing against a transgender girl.
“The plans discussed reportedly included wearing dresses to the game, buying anti-trans gear, making signs, and generally heckling and intimidating the player,” Bow High School Athletic Director Michael Desilets wrote in a declaration to the court in October.
In the days leading up to the game, Fellers, according to court documents, purchased “a large number of pink wristbands” and gave them to Foote, who used a black magic marker to adorn each one with either “XX,” the female gender symbol — a circle above a cross — or the acronym “NAD,” which Foote said meant “not a dude.”
Marcy Kelley, superintendent of schools for SAU 67, which includes the Bow School District, testified during a hearing in November that the “XX” symbol, when used in the context of transgender athletes, “conveys a well-understood anti-trans message.”
She noted that Riley Gaines, a conservative activist who campaigns against the inclusion of transgender athletes in girls’ and women’s sports, uses the “XX” symbol in her social media posts, clothing line and speaking engagements. According to court filings, Fellers and Foote often reference Gaines in their social media posts and on their signs and posters.
Kelley said she and other school officials believed Fellers and Foote’s protest targeted a single player, violating the Bow High athletic handbook and a school board policy regulating public conduct on school property. Tirrell is the only transgender player on Plymouth Regional High School’s girls’ soccer team.
Kelley added that she was not troubled by Fellers and Foote’s opinions on trans athletes but was concerned about protecting an individual student from being the sole subject of a protest. “This was organized and targeted,” she said.
Fellers and Foote testified in November that they did not intend to harass or target Tirrell. Attorneys for the two men avoided describing their actions as “protest,” instead characterizing it as a “passive statement of support for women’s athletics.”
But in denying their motion Monday, U.S. District Court Judge Steven McAuliffe, an appointee of former President George H.W. Bush, said the parents’ “narrow, plausibly inoffensive” intentions cannot be separated from the broader context. He added that adults attending high school events do not enjoy a First Amendment protected right to speech that demeans students.
“The message generally ascribed to the XX symbol, in a context such as that presented here, can reasonably be understood as directly assaulting those who identify as transgender women,” McAuliffe wrote in his ruling. “Beyond ‘I oppose your participation,’ the message can reasonably be understood to include assertions that there are ‘only two genders,’ and those who identify as something other than male or female are wrong and their gender identities are false, inauthentic, nonexistent, and not entitled to respect.”
School authorities, McAuliffe wrote, “were duty bound” to protect Tirrell and any transgender students attending the game from “the harassment, intimidation, and anxiety likely to follow” the parents’ actions.
Del Kobe, an attorney for the plaintiffs at the Institute for Free Speech, said the group strongly disagrees with McAuliffe’s ruling.
“This was adult speech in a limited public forum, which enjoys greater First Amendment protection than student speech in the classroom,” Kobe said in an email. “Bow School District officials were obviously discriminating based on viewpoint because they perceived the XX wristbands to be ‘trans-exclusionary.’ We are still evaluating our options for next steps.”
New Hampshire in July became the first state in the Northeast to ban transgender student-athletes from participating on girls’ and women’s sports teams. In August, a federal judge allowed Tirrell and another student, 15-year-old Iris Turmelle, to continue playing on their respective schools’ girls’ teams while challenging the ban in court.
The same judge, U.S. District Court Judge Landya McCafferty, appointed by President Barack Obama, allowed Tirrell and Turmelle to add the Trump administration to their lawsuit after President Trump signed an executive order to ban transgender athletes from girls’ and women’s sports nationwide.