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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.

When it comes to obeying the law, the Kearsarge School District is suffering from legal schizophrenia.

On one hand, district officials claim they can’t stop a convicted sex offender busted for child pornography from walking on campus to attend girls soccer games.

On the other hand, they claim the right to ignore New Hampshire’s state law banning biological males from playing on the girls’ soccer team.

The player is Maelle Jacques, a biological male who identifies as a girl and plays goalie for Kearsarge.

The convicted sex offender, who’s scheduled to report to prison in December but insists on attending games today, is Jacques’ father, Marc.

Kearsarge is scrambling to contain the damage the district’s administration created when it became known that officials were aware that parent Marc Jacques pleaded guilty to distributing child sex abuse images earlier this year. Marc Jacques was never prevented by school officials from going to any girl’s soccer games this year to watch his child Maelle Jacques compete.

“Because these events are open to the public, the district may restrict access only in the case of a prior civil no trespass order, or active court order. In general terms, we cannot selectively determine who may or may not attend any event,” Superintendent John Fortney said in a letter sent to parents this week.

Marc Jacques is back in custody after he allegedly violated the conditions of his pre-incarceration release by possessing a flash drive containing more child sex abuse images.  Marc Jacques was sentenced to five years in prison last month, but given until December to report to prison authorities to begin his sentence. 

It is not unusual for federal defendants to get a few weeks of freedom between the sentencing hearing and the start of their incarceration. That time is meant to allow the defendants to get their affairs in order before going to prison. 

But Marc Jacques was given months of pre-incarceration release after he pleaded with the court that his child, Maelle Jacques, needed him at the soccer games. Marc Jacques said factors like the state law banning biological boys from playing girl’s sports, and potential threats of violence against transgender people, required that he be at the games.

“Maelle is going to need me to be present and in attendance to support [Maelle] and protect [Maelle] in the face of the fears [Maelle] will have of what could happen to [Maelle] on the athletic fields,” Marc Jacques wrote.

But Fortney is also telling parents who are upset that a biological male is on the high school’s girls soccer team that Kearsarge is not going to comply with state law. In New Hampshire, state law requires high school athletes to compete on the team that matches their sex at birth.

But the school district told parents who want the law enforced that it refuses to do so.

“Relative to HB 1205, this bill is a violation of federal law, the U.S. Constitution, and NH’s own Civil Rights Provision,” the district declared, without evidence or any court rulings confirming their statements.

While a federal judge has suspended the enforcement of HB 1205 for two specific students, the law has not been overridden, nor has it been declared unconstitutional.

“Kearsarge is violating the law,” an attorney with knowledge of the case told NHJournal on background.

As for the convicted sex offender, Fortney claims Kearsarge takes the safety of all the students seriously, and consulted with police and attorneys about the matter. Sutton Police Chief Jonathan Korbet told NHJournal he had conversations with Kearsarge about the girl’s soccer games.

“We decided it was necessary to provide police details at JV and varsity girl’s soccer games,” Korbet said.

Under the conditions of the pre-incarceration release, Marc Jacques is to have no unsupervised contact with anyone under the age of 18. Korbet said that condition is vague and difficult to enforce at the soccer games.

“It’s hard to determine what constitutes unsupervised. In a public place, in a public setting, one could argue that’s not unsupervised,” Korbet said.

But Kearsarge knew Marc Jacques was going to away girl’s soccer games as well. Hopkinton Superintendent Michael Flynn said this week officials in his district were unaware of Marc Jacques’ conviction until hours before the Kearsarge team was set to play at Hopkinton on Oct. 7. Flynn also talked to local police and the Hopkinton’s legal team, and put in a safety plan 45 minutes before the game time. Like Fortney, Flynn said he legally could not stop Marc Jacques from attending the game.

“We want to make sure that we, as a school district, follow the laws. I am not able to arrest anybody, and I can’t create court orders,” Flynn said.

At the Oct. 7 Hopkinton game, Marc Jacques was caught on video interacting with a young boy until the child’s mother was alerted. NHJournal has seen the video, but is not sharing it in order to protect the boy’s identity.

The hands-off treatment Marc Jacques received from multiple school districts before he was arrested for violating his release is in stark contrast to the way the Bow School District treated a group of parents who engaged in a silent protest last month.

Kyle Fellers and Anthony “Andy” Foote were slapped with no trespassing orders by Bow school officials for wearing pink “XX” wristbands at the Sept. 17 girl’s soccer game. Bow officials claim they acted out of an obligation to protect a transgender student on the opposing Plymouth High School team from the silent protest.