This story was originally produced by the Concord Monitor. NHPR is republishing it in partnership with the Granite State News Collaborative.
A federal appeals court sent a free speech case back to a lower New Hampshire court this week, overturning a district judge’s earlier refusal to let a group of Bow parents silently protest at sports games.
The ruling from the U.S. Court of Appeals for the First Circuit comes nine months after the court heard oral arguments in the case, which centers on pink “XX” wristbands that Bow parents wore during a girls’ soccer game as a symbol of their opposition to transgender athletes participating in girls’ sports.
The incident took place on September 17, 2024, during a match between Plymouth Regional High School and Bow High School’s girls’ soccer team.
“Appellants’ silent display of the ‘XX’ symbol at the September 17 game fell short of harassment and disruption, and we conclude that the district court erred in holding that the school’s interest in prevention of harassment justified the prohibition,” the ruling states.
After the game, two Bow parents who wore the wristbands, Anthony Foote and Kyle Fellers, were issued no-trespass orders by the school district, which characterized the protest as “intimidating, threatening, harassing and discouraging” a student on the opposing team.
Along with Nicole Foote and Eldon Rash, they filed a lawsuit in the U.S. District Court for the District of New Hampshire against the Bow School District, its staff and Superintendent Marcy Kelley, alleging that the district violated their First Amendment rights.
But Judge Steven McAuliffe, of the lower district court, ruled that the district acted reasonably in its decision to prevent parents from protesting.
Kelley testified in hearings that she viewed the “XX” symbol as “anti-trans” and “exclusionary.” The “XX” symbol is typically a reference to the sex chromosomes associated with biological females.
He said the federal appeals court’s decision is a victory for “every parent who believes they have the right to peacefully express their views at a public event.”
Throughout the case, the parents have been represented by attorneys from the Institute for Free Speech, which said that with the case now remanded, further proceedings will involve consideration of interim relief for the parents.
“All we wanted was to cheer on our daughters and stand up for what we believe. Instead, officials threatened us and banned us from school grounds for wearing a wristband. No parent should have to go through that,” Fellers said in a statement.
“This ruling reaffirms parents have a right to silently express their views on controversial issues, including on girls’ sex-based rights, even if school administrators strongly disagree with them,” said the Institute’s senior attorney Del Kolde. “If school officials allow expression supporting one side of a political debate, they cannot ban silent, peaceful expression on the other side. Our clients simply stood up for their First Amendment rights.”
In its ruling, judges from the federal appeals court made clear that they were not deciding whether the school’s policy on conduct on its grounds was unconstitutional, but rather whether administrators violated the parents’ First Amendment rights by interpreting and applying that rule specifically to punish their anti-transgender-sports message.
McAuliffe had ruled that the school district’s actions — issuing no-trespass orders, pausing the game and calling police officers to escort those who refused to remove their wristbands — did not constitute viewpoint discrimination. The appeals court judges disagreed.
“The characteristics of the school as a place of learning reinforce that administrators cannot favor one side of a debate involving parental speech on an issue of prominent public concern, and which, in those parents’ views, concerned the safety of their children,” wrote the judges in the ruling.
The Bow School District could not be reached for comment.
