This story was originally produced by The Concord Monitor. NHPR is republishing it in partnership with the Granite State News Collaborative.
In the eyes of the Bow School District, spectators at school-sponsored sporting events who stage silent protests or display messages challenging a player’s right to be on the field are engaging in “harassment” and creating a “hostile environment.”
On Wednesday, attorneys representing the school district argued at the U.S. Court of Appeals in Boston that no one has the right to single out a player on the sidelines, even with a silent protest, like the armbands a group of Bow parents wore to oppose transgender athletes participating in girls’ sports.
A federal district judge’s ruling in April supported the school district’s actions and barred the parents from wearing the armbands. The appeal, brought by attorneys representing the parents, hinges on what they perceive to be an infringement of their First Amendment right to free speech.
“We don’t all have to agree on transgender issues, but if we’re going to get along in a pluralistic society, people have to be allowed to quietly express their views on terms equal to other parents,” said Del Kolde, an attorney for the parents. “If progressive parents chose to wear a pride flag or a trans progress pride flag, which is the newer version of it as a wristband, we don’t have a problem with that.”
The lawsuit stems from a Bow High School girls’ soccer game last September, when Bow parents Anthony Foote and Kyle Fellers and Fellers’s relative, Eldon Rashe, wore pink armbands marked with “XX” on the sidelines.
The armbands were meant as a silent protest against transgender athletes playing on girls’ teams, with the “XX” symbol representing the sex chromosomes assigned to females at birth.
When the group refused to remove the armbands, the school district issued no-trespass orders against Foote and Fellers.
At Wednesday’s hearing, judges Sandra Lynch, Julie Rikelman and Jeffrey Howard heard from Kolde that the district court was wrong to censor adults expressing their views.
Kolde, from the Institute For Free Speech, said the application of the school’s policy allows passive, inclusionary messages about gender identity but suppresses messages that challenge them.
He described the parents’ actions during the game as “democracy in action” and said the school district should have “modeled tolerance and restraint,” noting that the parents were simply wearing the armbands and were not heckling or chanting.
Jonathan Shirley, representing the school district, argued that if officials have approved a player’s participation, that player should not have to face opposition, in keeping with the school’s “viewpoint-neutral” policy.
During the match that sparked the lawsuit, Parker Tirrell, a transgender athlete from Plymouth Regional High School, was competing against Bow.
In July, 2024, just a few months before the game, the state banned transgender athletes from girls’ sports teams in grades 5 through 12. Tirrell and another student, Iris Turmelle, later sued the state, and since then, a court has temporarily blocked the law from applying to them while their case proceeds.
During his oral arguments, Shirley said the district’s stance should apply whether or not the player is actually present at the game.
“We don’t care if it’s because it’s a transgender issue, we don’t care that it’s because, you just don’t like left-footed kickers, that’s not a reason you get to show up and express your dislike of them being on the field,” said Shirley. “You don’t get to express it at these games. In our position, the school should have the ability to control how that particular type of message gets communicated.”
Throughout the hearing, the school district defended its decision to ask the group to remove the armbands because it believed the situation could have escalated if no action was taken.
Shirley expressed concern that more people could have joined in, as a bag of additional wristbands was present at the game.
“They had a reasonable apprehension that there was more planned. They stopped it from happening,” Shirley said. “Poison is often determined by the dose, and we’re talking about future events where we don’t have an understanding of how many people are going to be showing up with these wristbands.”
On April 14, U.S. District Judge Steven McAuliffe ruled in favor of the school, determining that school grounds and events constitute a “limited public forum,” where officials can regulate speech to meet educational goals.
Kolde said the reasoning was flawed, pointing out that the standard for a limited public forum does not apply to adults engaging in non-disruptive, symbolic speech.
“It essentially becomes a ‘get out of jail free’ card for viewpoint discrimination,” he said. “It’s not a disparaging message.”
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