Bow School District Says Protecting Trans Student Trumps Free Speech

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.