#

The Bow soccer parents booted from a game by school district officials for wearing pink, XX wristbands to protest biological males playing in girls’ sports are appealing their case.

Lawyers for Kyle Fellers, Anthony Foote, Nicole Foote, and Eldon Rash filed a notice of appeal with the First Circuit Court of Appeals in Boston. Last month, United States District Court Judge Steven McAuliffe denied their request for an injunction against Bow’s SAU 67, ruling the school has the right to block protests if it finds their message “demeaning and harassing.”

“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 April ruling. “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.”

As a result, Bow schools are free to allow Pride flags and symbols while forbidding the XX wristbands.

Even before the parents could file their appeal, McAuliffe’s ruling got a double-take from U.S. Attorney General Pam Bondi.

“I have asked my Civil Rights Division to examine this matter,” Bondi posted on Twitter/X. “This DOJ stands with women and their supportive parents.”

Bondi’s tweet was in response to a post from women’s sports activist Riley Gaines, who was commenting on NHJournal’s coverage of the Bow High School case.

“A federal judge just ruled that two fathers can’t wear pink wristbands that say ‘XX’ to silently protest male inclusion in women’s sports,” Gaines tweeted, with a link to the NHJournal article. “The judge said the female chromosomes, XX, are a ‘demeaning and harassing assertion.’”

It’s not clear if Bondi has yet pursued the matter beyond her initial tweet. There’s been no confirmation of any official action being underway against either Bow school officials or McAuliffe.

Fellers and Anthony Foote were kicked out of a game in September for engaging in a silent protest by wearing pink XX wristbands. The district then banned both from all games and after-school activities as a result of their protest. McAuliffe initially overturned the school’s ban on their attendance, but left in place the district’s prohibition on any form of protest. 

The parents were protesting biological males playing during a game in which the Bow High School girls’ soccer team faced Plymouth High School’s team that featured transgender athlete Parker Tirrell. Tirrell garnered headlines for weeks before the game after successfully suing the state of New Hampshire over a law that bans biological boys from girls’ sports. Both Foote and Fellers claimed in court that they were not directing their protests at Tirrell.

The Bow School District was acting within its authority to kick two soccer dads out of a girls game for wearing pink “XX” wristbands as a silent protest against biological males playing on girls’ teams, a federal judge ruled Monday.

But one of the dads, Anthony Foote, told NHJournal he plans to keep fighting for what he sees as the rights of women and girls.

“What was our offense? Supporting girls’ sports and defending biological reality?” Foote said. “This ruling is a slap in the face to every parent who believes schools should be a place of fairness, not political indoctrination. The judge openly admitted that Pride flags are allowed because they promote ‘inclusion,’ but wristbands defending women’s sports are banned because they might ‘offend’ someone. That’s viewpoint discrimination, plain and simple — and it’s unconstitutional.”

United States District Court Judge Steven McAuliffe ruled against Foote, Kyle Fellers, Eldon Rash, and Nicole Foote in a 45-page order denying their preliminary injunction against SAU 67. The parents are being represented by the Institute for Free Speech, a legal nonprofit that promotes parents’ rights. Del Kolde, the senior attorney, said he is still considering his next steps in this case.

“We strongly disagree with the Court’s opinion issued today denying our request for a preliminary injunction. This was adult speech in a limited public forum, which enjoys greater First Amendment protection than student speech in the classroom. 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,” Kolde said.

The crux of McAuliffe’s ruling is that while Fellers, Foote, and the others acted within their First Amendment rights to protest, venues like school athletic events are considered “limited public forums” and school officials acted within their legal authority to restrict what the parents said and did.

“The question then becomes whether the School District can manage its athletic events and its athletic fields and facilities — that is, its limited public forum — in a manner that protects its students from adult speech that can reasonably be seen to target a specific student participating in the event (as well as other similar gender-identifying students) by invited adult spectators, when that speech demeans, harasses, intimidates, and bullies. The answer is straightforward: Of course it can. Indeed, school authorities are obligated to do so,” McAuliffe wrote.

For days before the Sept. 10, 2024, game, Anthony Foote and Fellers made it known to school officials that they were unhappy Bow High School was going to play a game against a girls’ team with a biological male player, Parker Tirrell. 

Days before the game, Tirrell made national news with a court victory against the state of New Hampshire’s law barring biological males from girls’ sports.

The dads went on social media to discuss various protest ideas, according to the evidence in the case. McAuliffe wrote that it is reasonable, given the context of the game, for SAU 67 administrators to be concerned that the potential protests would be interpreted by Tirrell as bullying and harassing.

And as such, the judge ruled, the school had the right to limit the dads’ speech.

“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. “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.”

Fellers and Foote have maintained they were not targeting or harassing any particular student with their wristbands. McAuliffe ruled that, even accepting their stated intent not to harass Tirrell, the broader context for the game made the SAU’s actions reasonable and justified.

“While plaintiffs may very well have never intended to communicate a demeaning or harassing message directed at Parker Tirrell or any other transgender students, the symbols and posters they displayed were fully capable of conveying such a message. And, that broader messaging is what the school authorities reasonably understood and appropriately tried to prevent,” McAuliffe said.

Critics of the judge’s ruling say that it is clearly viewpoint discrimination and the judge’s view that “gender identity” is “inalterable” isn’t based on biological fact or in law.

McAuliffe has yet to rule on the permanent injunction. Fellers, Foote, and the other parents are seeking to allow them to protest at school games and other events. 

With spring sports starting soon, the parents suing the Bow School District over their silent protest want a ruling before players hit the field.

On Wednesday, attorneys representing the parents filed a request for an expedited decision on their request for a preliminary injunction keeping the school district from banning future protests. And, their lawyers told the court, if a ruling is delayed so long it keeps these parents sidelined, they will consider that a denial of their request for relief and pursue an appeal.

Anthony Foote, Kyle Fellers, Nicole Foote, and Eldon Rash were forced to end a silent protest — the wearing of pink wristbands marked with “XX” on the sidelines of the high school soccer field — by angry school administrators last September. They were protesting the fact that their girls team was being forced to compete against a biological male. 

After Foote and Kyle Fellers were slapped with “no trespass” orders from the school, orders enforced by the local police, the parents filed a lawsuit against the Bow school district.

The parents are being represented in court by legal nonprofit organization the Institute for Free Speech.

The lawsuit was filed in September, and United States District Court Judge Stephen McAuliffe has already conducted two days of evidentiary hearings and been fully briefed by both sides in the lawsuit, attorneys for the parent’s said.

But the court has yet to act on their request for a preliminary injunction protecting their First Amendment right to bring their wristbands to games during the upcoming spring sports season. In their view, it’s literally a case of justice delayed being justice denied.

“Spring sports season is the last chance for Plaintiffs to silently express their sociopolitical views at a Bow event this school year, and—because one of Plaintiffs’ children is a high-school senior—the last chance to ever express their views at one child’s events,” the motion states.

“Parties completed their post-hearing briefing on Dec. 17. No decision on the injunction has yet been issued. The winter sports season has now ended, and the Bow schools’ spring sports season begins March 24, with games commencing April 14.”

Two biological males who have been playing on girls sports teams are currently suing in federal court to block a New Hampshire state law protecting girls sports. When President Donald Trump issued an executive order doing the same thing, they added the president to their lawsuit.

One of those players, Plymouth High School’s Parker Tirrell, was on the team Bow was competing against during the previous silent protest.

McAuliffe previously overturned the Bow School District ban against the parents attending games and after-school activities. But he has not yet lifted the ban on wristbands or other forms of silent protest.

As the calendar progresses toward the new sports season and the final season for at least one of the girls, Feller, Foote, and the others want a decision now.

“Plaintiffs have been prevented from silently protesting at Bow School District extracurricular events during both the fall and winter sports seasons. Everyday that passes magnifies Plaintiffs’ injury. Unless they receive injunctive relief from this Court, they will not be able to express their viewpoint during the spring sports season as well, including all of one daughter’s remaining games as a high-school student,” the motion states.

“If no ruling occurs by April 14, Plaintiffs will understand this Court to have constructively denied the injunction, and pursue interlocutory appeal of that denial.”

McAuliffe has acknowledged there is nothing bigoted in the parent’s beliefs that biological males who identify as female should not play full-contact sports with biological girls.

“You’re entitled to your viewpoint, a lot of people hold it,” McAuliffe said.

In fact, polls show a solid majority of Americans support protecting girls sports from biological males. But Bow Superintendent Marcy Kelly doesn’t agree, and she told the court that expressing that view is offensive speech that should be banned.

“XX is a pretty well-known anti-trans symbol,” Kelly said on the stand.

Other controversial symbols, such as the LGBTQ “rainbow flag,” would be welcome, however.

“It’s inclusionary, it’s not targeting or harassing anyone,” Kelly said.

The high school soccer referee who reportedly threatened to cancel a Bow girl’s soccer game because parents wore pink “XX” wristbands issued an apology as part of a settlement agreement in the ongoing federal lawsuit.

Soccer dads Kyle Fellers and Anthony Foote, as well as Nicole Foote and Eldon Rash, filed the lawsuit against the Bow School District after they were ordered to remove their pro-girls sports wristbands at a Sept. 17 Bow game against another girl’s team that includes a transgender player. 

Fellers and Anthony Foote were later slapped with no trespass orders by the Bow School District.

Referee Steve Rossetti, who officiated the game, was named in the lawsuit for reportedly threatening to cancel the game if the parents did not remove the wristbands. But Rossetti was dismissed as a defendant this week. As part of an agreement reached with the parents, Rossetti wrote Fellers a letter of apology for swearing at him during a heated exchange.

“I did not choose my words very carefully during our exchange, and I regret any offense I may have caused you,” Rossetti wrote to Fellers. 

According to the original complaint filed in the United States District Court in Concord, Rossetti walked up to Fellers in the school parking lot after the game and let loose on the soccer dad.

“As the spectators and teams left to go to their vehicles, some expressed support for Fellers’ message while others criticized him. Rossetti, the referee who had threatened to cancel the game and make Bow forfeit, called Fellers a ‘f***ing a**hole’ and told him that his daughter would hate him,” the complaint states.

Rossetti works for the New Hampshire Interscholastic Athletic Association as a referee. He is not a school district employee. The lawsuit against SAU 67 and Superintendent Marcy Kelley, is still active, said Del Kolde, a senior attorney for the Institute for Free Speech which is representing Fellers and the other parents. 

“The case is proceeding against Bow School District and the named officials. We are still waiting for the district court to rule on our motion for preliminary injunction,” Kolde told NHJournal.

United States District Court Judge Steven McAuliffe has already overturned Bow’s no trespassing order that prevented Fellers and Foote from going to games and other after school events. But the parents want an injunction to allow them to be able to wear the wristbands and engage in silent protests at future games and school events.

Kelley testified in November that she deems the XX wristbands a problem because they represent an “exclusionary” anti-transgender view that only biological girls should be allowed to play in girl’s sports. Asked if she would ban rainbow wristbands to support LGBTQ+ players, Kelley said she would not.

“It’s inclusionary, it’s not targeting or harassing anyone,” she testified.

Bow’s Sept. 17 game was against the Plymouth High School girl’s team, which includes openly transgender player Parker Tirrell. The week before the Bow game, Tirrell won the right to play on the girl’s team in a lawsuit against New Hampshire’s law banning biological boys from girl’s spots, HB 1205. 

Tirrell played nearly the whole game against Bow on Sept. 17, and there are no reports of Fellers, Foote, or any other parents specifically targeting Tirrell during their wristband wearing, or making any harassing comments directed at Tirrell. 

Bow High School superintendent Marcy Kelly rejects the claim that she opposes freedom of expression at school events. She told a federal judge on Friday that flags and symbols are welcome — as long as she agrees with their message.

Specifically, Kelly told United States District Court Judge Steven McAuliffe that, while she stands by her decision to ban parents from wearing pink wristbands in support of girls-only sports, she would welcome the waving of Gay Pride flags and other symbols at the same events.

Soccer dads Kyle Fellers and Anthony Foote were slapped with “no trespass” orders by Kelly and the Bow School District after they wore the wristbands at the Sept. 17 girl’s Bow High School soccer game against Plymouth High School.

Kelly told the court she found the wristbands “exclusionary,” and therefore, she believes she has the authority to ban them from school events.

Kelly testified she knew from emails and social media posts that the men might wear the pink “XX” wristbands, and that was something she wanted to stop. “I had concerns (Foote and Fellers) were going to display an anti-trans message on that one day.”

Kelly admitted she initially considered banning all would-be spectators from the game. Instead, she settled on a plan to have police at the game and use school officials to patrol the sidelines looking for actions or symbols she found offensive.

“XX is a pretty well-known anti-trans symbol,” Kelly claimed.

(According to science, women have XX chromosomes and men have XY chromosomes.)

Del Kolde, an attorney with the nonprofit Institute for Free Speech who is representing the plaintiffs in the lawsuit against Kelly, asked Kelly if she would allow parents to wear LGBTQ+ Rainbow Pride wristbands at games.

No problem, Kelly said. “It’s inclusionary, it’s not targeting or harassing anyone,” she said.

And that, Kolde told NHJournal, is a legal smoking gun.

“The Bow School officials have basically admitted to engaging in viewpoint discrimination. That is illegal in a limited public forum, such as school sporting events. We hope that this censorship regime will soon be enjoined.”

United States District Court Judge Steven McAuliffe has already overturned Bow’s “no trespass” order that prevented Fellers and Foote from going to games and other afterschool events. Whether the dads can engage in silent protests at future games and events by wearing the XX wristbands is still up in the air.

Kelly said her belief that “XX” symbolism is anti-transgender bigotry is on based on her reaction to the work of Riley Gaines, the NCAA swimmer who was forced to compete against a biological male, Lia Thomas.

“I find that when (Gaines) says ‘XX means real women,’ that is exclusionary,” Kelly said.

Gaines has emerged as a national advocate for girls-only sports and private spaces. In August, Gaines came to New Hampshire to support a new law banning males from girls’ support in the 5th through 12th grades. She described “the experience of competing against a man in women’s sports, being forced without warning or consent to undress before the fully intact male.”

Support for protecting girls’ sports from biological males who want to compete has soared over the past few years. Polls in New Hampshire and at the national level show voters support banning males from girls’ sports by a three or four-to-one margin.

Also on Friday, New Hampshire Attorney General John Formella joined a group of 24 state attorneys general urging the U.S. Supreme Court to overturn a lower court ruling and uphold an Arizona law prohibiting biological boys from competing on girls’ sports teams.

“Basing the distinction on biology rather than gender identity makes sense because it is the differences in biology—not gender identity—that call for separate teams in the first place: Whatever their gender identity, biological males are, on average, stronger and faster than biological females,” the brief reads in part.

New Hampshire passed a similar law over the unanimous opposition of Democrats in the state House and Senate.

Last week’s hearings in the Bow case will inform McAuliffe’s decision on possibly lifting the ban on silent protests. A trial on the merits of the lawsuit is still to come. 

One of the Bow parents fighting for his right to bear pink, XX wristbands at school athletic events faced a slightly skeptical judge during Thursday’s hearing in the United States District Court in Concord.

When asked by Judge Steven McAuliffe why he wore the wristbands to a Bow girl’s soccer game in September, Anthony “Andy” Foote testified he wanted to support girls in girl’s sports, and not negatively target people in the transgender community with his protest.

“The bottom line is girls are losing what they fought for,” Foote said. 

But McAuliffe wasn’t sold on that explanation, saying it reminds him of the people who protested against the Vietnam War when he was a young man.

“They said, I’m not protesting the war, I’m supporting peace,” McAuliffe said. “I don’t see the difference there.”

Foote, along with fellow soccer dad Kyle Fellers, Foote’s wife Nicole Foote, and Eldon Rash, are suing the Bow School District after they were banned for the offense of wearing pink wristbands marked with XX. Thursday’s evidentiary hearing will allow McAuliffe to decide if the parents can put on the wristbands at games or not. More testimony is anticipated Friday.

After Foote and Fellers were forced to remove the wristbands at the Sept. 17 game, and Fellers was ordered to leave the field, both men were served with no trespassing letters from the Bow School District that banned them from their children’s games and other school events. McAuliffe overturned the ban last month, but he did not block the district’s prohibition against silent forms of protest.

When questioned by the attorneys, both Fellers and Foote maintained on the witness stand they were supporting women’s sports by wearing the wristbands. But McAuliffe wanted to establish Foote and Feller’s need to publicly support for women isn’t occurring in a vacuum. 

“The object of your protest is, ‘I don’t like the fact a trans girl is playing on a girl’s team,’” McAuliffe said. “It’s all about the trans girls playing on girls’ teams.”

McAuliffe previously suggested there is nothing bigoted in believing that transgender girls — aka “biological boys” — should not play full-contact sports with biological girls. He said again Thursday that opinion is not out of bounds.

“You’re entitled to your viewpoint, a lot of people hold it,” McAuliffe said.

Bow’s Sept. 17 game was against the Plymouth High School girl’s team, whose roster includes biological male Parker Tirrell. The week before the Bow game, Tirrell won the right to play on the girl’s team in a lawsuit against New Hampshire’s law banning biological boys from girl’s spots, HB 1205. Tirrell played nearly the whole game against Bow on Sept. 17. 

In the days leading up to the game against Plymouth, and after Tirrell’s legal victory, Foote sent an email to Bow Athletic Director Mike Desilets demanding action to protect the girl’s team.

“Where’s your courage? Where’s your integrity? Stand up for real women or get out of the way,” Foote wrote.

Desilets also received an email from another parent warning about planned disruptive protests at the Plymouth game by angry parents. Foote said that email, warning that soccer dads planned to wear dresses and harass Tirrell, is not based on any facts and the writer had no conversation with him about his protest plans.

And, it was pointed out, none of those events happened.

Instead, the four wore their pink wristbands, there was no comment made toward Tirrell during the game, and no mention of any specific player.

“This was not about heckling Parker Tirrell,” Foote said.

McAuliffe also viewed the police body camera recording of the confrontation between Bow Police Lt. Phil Lamy and Fellers. Fellers had been ordered to leave the field after becoming verbally combative with officials. At his car in the parking lot, Fellers held up a sign with a “Support women in women’s sports” slogan and got into another verbal altercation with Lamy when the game ended.

Fellers was reportedly holding up his sign in the direction of Plymouth’s team bus, but said he did not notice the bus and had no intention of targeting Tirrell.

“I don’t believe anybody should intimidate anybody,” Fellers said.

McAuliffe’s questions about Foote’s intent highlight the nuance in the legal issues at play. While there’s a free speech right to protest, there are also laws against harassment. The school district has maintained it was trying to protect Tirrell from anti-transgender harassment when officials confronted the parents over the wristbands and forced them to remove the items. 

However, that does not explain why the parents were subsequently banned from all after school events. That may be cleared up Friday when Bow Superintendent Marcy Kelly is expected to testify.

After the Bow School District slapped them with a no trespass order over wearing pink wristbands to their daughters’ soccer game in support of girls-only sports, Anthony “Andy” Foote and Kyle Fellers filed a lawsuit defending their right to free speech.

On Tuesday, Fellers will be in court asking a federal judge to remove the no trespass order banning him from his daughter’s activities, hours before her next home soccer game.

The Institute for Free Speech and local counsel Richard Lehmann will argue in favor of a temporary restraining order to block the district’s ban. The hearing is set for 2:30 p.m. Tuesday in the United States District Court in Concord.

The next Bow soccer game is scheduled for Tuesday at 6:45 p.m.

“We just want a dad to be able to see his daughter play high school soccer,” Lehmann told NHJournal. “The idea that someone gets punished for holding views that are unpopular with people at the top of the local power structure is un-American, and it should end. Now.”

The lawsuit was filed by Fellers, Foote, Foote’s wife Nicole, and Eldon Rash, all Bow residents.

On Sept. 17, when Bow was facing Plymouth Regional High School, Fellers and Anthony Foote showed up wearing pink wristbands with “XX” written on them, symbolizing the two X chromosomes women have. Plymouth has a biological male on its girls soccer team.

During the game, school officials, along with Bow Police Lt.  Phil Lamy confronted the parents and demanded they remove the wristbands or leave. When the parents refused, citing their First Amendment rights, they were threatened with arrest for trespassing. The referee then stopped the game and said Bow High School would forfeit if the plaintiffs did not remove their wristbands.

The no trespass order against Foote expired after a week, but the one filed against Fellers extends through the entire fall season. Not only does it ban him from future soccer games, it also bars him from going to any school event, sports related or not. It even keeps him from being able to do things like picking up his children from after-school practices, according to the complaint.

The Bow School District is scrambling to fix its apparent free speech violation, according to the motion filed to support the TRO. Since the Sept. 17 game, the district created a new “free speech zone” at home games, restricting any protests or demonstrations to an area near the scoreboard that is 50 yards away from the field.

The new policy also limits the times people are allowed to use the “free speech zone” to 30 minutes before and after games, and the policy limits the number of people allowed to take part to no more than 50 people at a given time. 

The lawsuit names Kelley and Lamy as defendants along with Bow High School Principal Matt Fisk, Bow Athletic Director Mike Desilets, and soccer referee Steve Rossetti.