New Hampshire men can't wear anti-trans gear at their kids' school while their lawsuit proceeds

Two New Hampshire men who wore wristbands protesting the presence of a transgender girl in a girls’ soccer match won’t be allowed to wear them or display protest signs at the games while their lawsuit against the school district proceeds.

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Kyle Fellers and Anthony Foote wore the wristbands during a September 17 game at Bow High School between Bow and Plymouth Regional High, the latter of which has a trans player, Parker Tirrell, who has been identified previously in various media outlets. The wristbands were pink and displayed the “XX” symbol for female chromosomes. Both men have children in the Bow School District.

School officials noticed the wristbands early in the second half of the game. Along with a local police officer, they told Fellers and Foote they either had to take off the wristbands or leave the match, as the bands could be taken as a statement of intimidation or harassment of Tirrell, and school policy prohibits these actions against any student.

“Fellers initially resisted, denying that it had anything to do with transgender athletes participating in women’s sports and insisting, implausibly, that the pink band was simply to show support for the fight against breast cancer,” U.S. District Court Judge Steven McAuliffe wrote in his Monday opinion denying a preliminary injunction the men had sought to prevent the school district from enforcing the policy against such protest gear.

Both men eventually removed the wristbands, but after the game, Fellers stood in the parking lot holding a poster reading “Protect Women’s Sports for Female Athletes” and bearing a picture of Riley Gaines, a cisgender woman athlete known for her opposition to the inclusion of trans women and girls in female sports. “School officials were concerned that Fellers had intentionally positioned himself so the girls on the Plymouth team bus — Parker Tirrell, in particular — would see his display as the bus exited school property,” McAuliffe wrote. After some argument, a police officer persuaded him to leave.

Afterward, both Fellers and Foote received “no trespass” orders barring them from school grounds. Those orders have now expired, but they are still barred from wearing the wristbands or carrying signs. Along with Fellers's former father-in-law, Eldon Rash, and Foote's wife, Nicole Foote, they sued the school district, arguing that their First Amendment right to free speech had been violated. They claimed they were suffering discrimination on the basis of their viewpoint.

However, McAuliffe ruled that the men are unlikely to succeed on their claim, and therefore he denied the injunction. He noted that the right to free speech is not absolute and that reasonable restrictions can be placed on it in a “limited public forum,” such as a school athletic event. He also said the school’s action was not based on their viewpoint but on its effects.

“Because gender identities are characteristics of personal identity that are ‘unalterable or otherwise deeply rooted,’ the demeaning of which ‘strikes a person at the core of his being,’ … and because Bow school authorities reasonably interpreted the symbols used by plaintiffs, in context, as conveying a demeaning and harassing message, they properly interceded to protect students from injuries likely to be suffered,” McAuliffe wrote.

Brian Cullen, an attorney representing the school district, told the Associated Press he welcomed the ruling. It doesn’t keep Fellers and Foote from protesting in other ways, he said: “It simply prevents them from bringing their protest to the sidelines of a game being played by kids. That should not be a controversial limitation.”

Del Kolde, senior attorney for the Institute for Free Speech, representing the plaintiffs, told the AP he didn’t agree with the judge’s finding that this was not viewpoint discrimination. “This was adult speech in a limited public forum, which enjoys greater First Amendment protection than student speech in the classroom,” Kolde said. “Bow School District officials were obviously discriminating based on viewpoint because they perceived the XX wristbands to be ‘trans-exclusionary.’”

Fellers and Foote’s attorneys filed a notice saying they wouldn’t provide any additional evidence before the judge’s final decision.

New Hampshire passed a law last year barring trans girls and women from female school sports, but it is blocked from enforcement while a lawsuit filed against it by Tirrell, Iris Turmelle, and their families is heard. They have added a challenge to Donald Trump’s anti-trans sports order to the suit. They are represented by GLAD Law and the American Civil Liberties Union’s New Hampshire affiliate.