United States District Court Judge Steven McAuliffe gave a partial win Tuesday to parents suing the Bow School District after being punished over holding a silent demonstration in support of protecting girl’s sports.
Bow High School parent Kyle Fellers can now go to his daughter’s soccer games, but he can’t wear the pink “XX” wrist band that got him and three other parents in trouble last month. Fellers and Anthony “Andy” Foote were slapped with no trespassing orders by Bow school officials for engaging in a silent protest at the Sept. 17 game.
McAuliffe said while there are complex nuances to the case that need to be sorted out, it’s clear the school was violating the First Amendment rights of the four adults at the game.
“You can’t suppress free speech based on whether you think it’s appropriate,” McAuliffe said.
Fellers, Andy Foote, Nicole Foote, and Eldon Rush are seeking the right to keep wearing pink “XX” armbands to games, but McAuliffe said both Bow’s attorney, Brian Cullen, and attorneys for the parents need to show more evidence and legal arguments to make the case. An evidentiary hearing will be set for November.
Cullen and the district argue the school can set limits on free speech in order to protect students from harassment and other harms. But given the facts before him, McAuliffe wasn’t sold that the school showed it was protecting anyone from any real harassment.
“How is wearing a pink wristband harassment?” McAuliffe asked.
Attorney for the parents Endel Kolde, with the nonprofit Institute for Free Speech, said school officials are punishing people who hold unpopular views.
“Everyone knows if they wore rainbow wristbands in support of trans students, or if they wore blue and gold wristbands in support of the war in Ukraine, nothing would have happened,” Kolde said.
The district was on high alert heading into the Sept. 17 game as Bow was set to host Plymouth High School where transgender student Parker Tirrell plays on the girl’s soccer team. Tirrell won an injunction on Sept. 10 against the state law that bans biological males from playing on girl’s teams.
Cullen said Bow had an obligation to keep Tirrell from being harassed by rowdy, crude protests or heckling. But according to Kodel, few people, including Tirrell, knew about the wristbands until school officials confronted the parents and ordered them to remove the offending accessories. The protest coincided with the Plymouth game, but it was in no way directed at Tirrell, Kodel said.
McAuliffe said while there is not enough evidence on the record to determine what, if any, harm was done by the protests, the pink wristbands on their own symbolize a non-bigoted viewpoint that is still open for debate, that girl’s sports is a space for biological girls.
Even if Tirrell was aware of the wristbands during the Sept. 17 game, it does not automatically rise to the level of an offense that requires the school to step in and curb the constitutional rights of adults.
“Surely, it’s not harmful for a trans student playing on a girl’s team to know there are people who don’t think they should be playing on the girl’s team,” McAuliffe said
