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The presence of a male player in a girls’ soccer game was all the justification Bow School District officials needed to crack down on protesting parents, according to a legal brief filed last week with the First Circuit Court of Appeals in Boston.

“While Plaintiffs cast their conduct at the Sept. 17 game as a ‘silent protest,’ the District reasonably viewed it as intimidation aimed at [biological male] 15-year-old Parker Tirrell,” wrote Bryan Cullen, attorney for the Bow School District, in the brief filed Friday.

SAU 67 is pushing back on an appeal filed by four Bow parents—Anthony Foote, Kyle Fellers, Nicole Foote, and Eldon Rash—who argue they have a First Amendment right to protest at school events. The group was disciplined last year after engaging in a silent protest against biological males participating in girls’ sports. Anthony Foote and Fellers were temporarily banned from all after-school events.

At the game between Bow High School and Plymouth High School—where Tirrell plays for the girls’ soccer team—the parents wore pink “XX” wristbands to express their opposition.

In April, U.S. District Judge Steven McAuliffe denied the parents’ request for an injunction, ruling that the school had the legal authority to restrict protest activity.

“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.

McAuliffe’s assertion that gender is “unalterable”—in a case involving a biological male altering his public identity to female—struck some observers as contradictory. Many political analysts believe the ruling could ultimately be overturned by the U.S. Supreme Court, which is set to hear related cases next year.

The Institute for Free Speech, representing the protesting parents, filed an appeal in June, arguing that Bow officials are engaging in viewpoint discrimination by banning their protest while allowing pro-LGBTQ+ displays.

“Bow school officials violate this rule by banning adult spectators from silently protesting against biological males competing in girls’ sports by wearing XX wristbands on the sidelines or displaying signs in a parking lot, while allowing other spectators to display Pride flags or ‘inclusionary’ sociopolitical messages at those same events and in the same places,” wrote Del Kolde, senior attorney at the Institute. “In a limited public forum like a school sporting event, such restrictions amount to textbook viewpoint discrimination.”

Tirrell is central to both Cullen’s argument and McAuliffe’s ruling. The transgender student made headlines before the Sept. 17 game due to a high-profile lawsuit against the state of New Hampshire challenging its law barring biological boys from participating in girls’ sports. With support from GLAD and the ACLU of New Hampshire, Tirrell and fellow transgender student Iris Turmelle won the right to try out and compete on their respective girls’ teams with a favorable court ruling on Sept. 10.

Bow officials anticipated potential disruption at the Sept. 17 game after Foote and Fellers voiced objections to biological boys playing against their daughters. Cullen argued that because Tirrell would be playing, the district had a duty to protect the player from any perceived harassment, including the wristbands.

Cullen went further, asserting that because school officials may not know in advance whether transgender students are attending a given event, they are justified in restricting the free speech rights of Foote, Fellers, and Rash at all future games and after-school activities.

“As the District explained at the preliminary injunction hearing, it is not always known to school officials who may identify as transgender or whether transgender students will or will not be attending a given event,” Cullen wrote. “The District needs the leeway to restrict Plaintiffs’ message from all school events because school officials are unable to know which students will be attending which events.”

He concluded: “Plaintiffs have no constitutional right to ‘silently protest’ school-sponsored events, whether it is the girls’ varsity soccer games or other events throughout the academic year.”

The case has already drawn national attention. U.S. Attorney General Pam Bondi criticized McAuliffe’s ruling earlier this year.

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

NHJournal has not confirmed what, if any, action the Civil Rights Division has taken since McAuliffe’s ruling was issued in April.

Several members of the Hillsboro-Deering High School Girls Soccer team refused to play against the Kearsarge team Tuesday due to safety concerns over Kearsarge’s star athlete, biological male Maelle Jacques.

“This isn’t about transgenderism. This is about biology for us and the increased physical risk when playing a full contact sport against the opposing sex” said Heather Thyng, mother of a Hillsboro-Deering player.

At least five girls on the varsity squad skipped the game at Kearsarge Regional High School, according to Hillsboro-Deering parent Betsy Harrington. With 17 varsity players on the roster, Hillsboro-Deering was forced to use JV players in order to play the game. 

“The Hillsboro girls can’t even get down the field without any of their best players. It’s one-sided,” Harrington told NHJournal.

Jacques played goal for most of the game, but was pulled off their field with 10 minutes left after having nothing to do. 

“No one ever got near [Maelle,] so I guess they’ll never be in any danger if there’s enough girls to always have a weak team,” Harrington said. “If every game has a few girls refusing to play, we will never know the ability of the Kearsarge team. They have an advantage I hadn’t thought about. It’s that they get to always play a crippled team without all of their players.”

Thyng stood by her daughter’s decision since players like Jacques should not be competing against girls, she said.

“We believe, my daughter included, that refusing to compete is the best way to push back on this issue, and we are hoping parents will be more willing to put themselves out there knowing they don’t have to be the first or the only family within our community to do so,” Thyng said.

Thyng is concerned that her daughter and other players could be hurt playing against Jacques, a nearly 6-foot tall biological male. Scenarios like tonight’s soccer game, where girls would be forced to play contact sports against biological males, were supposed to be a thing of the past after Gov. Chris Sununu signed HB 1205 this summer.

The law requires all school athletes from 5th grade through high school to compete on teams that correspond to their biological sex at birth. But the Kearsarge School Board voted this summer to ignore the law in order to allow Jacques to keep playing.

Jacques is well known in New Hampshire high school sports, having already won first place in the girls high jump competition earlier this year, beating every female in the New Hampshire Interscholastic Athletic Association (NHIAA) indoor track and field championship.

Two New Hampshire transgender students, Parker Tirrell and Iris Turmelle, are challenging the law in federal court and have so far won an injunction to allow them to play on girls’ teams. But that order does not apply to any other student in the state, including Jacques.

The team’s coaches told Tyng that neither her daughter nor any other player who boycotts the game will suffer retaliation as a result. “The coaches reassured me they told the girls there would be no negative repercussions for anyone who refuses to compete. They said they understood the increased risk and would be paying attention to the aggressiveness of the game, and if anyone was getting hurt or play was too rough, they were prepared to end the game, Thyng said.

The Bow School District is facing a First Amendment lawsuit from parents who were punished for taking part in a silent protest at a girls’ soccer game. The parents were hit with a no trespass order when they wore pink “X” wristbands to the game earlier this month.

This story was updated after the game was played.