#

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

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. 

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.

United States District Court Judge Landya McCafferty ruled Tuesday that the state’s new law protecting girls school sports from male competitors is a clear case of discrimination.

“This issue ‘is not even a close call,’” McCafferty wrote in her ruling. “HB 1205, on its face, discriminates against transgender girls.”

McCafferty’s ruling is based on the controversial premise that males who identify as females are girls in the same way that biological females are, and they are protected by the same antidiscrimination laws designed to protect biological females. The issue is almost certain to eventually be addressed by the U.S. Supreme Court.

As a result, high school freshmen Parker Tirrell and Iris Turmelle, two biological males who identify as female, are allowed to play girls sports pending the outcome of their lawsuit against the state.

McCafferty’s injunction against HB 1205 only applies to Tirrell and Turmelle at this time. McCafferty’s statements in court and her rulings so far, however, indicate she’s likely to overturn the law soon.

Tirrell and Turmelle, represented by GLAD and the New Hampshire ACLU, brought the lawsuit soon after Gov. Chris Sununu signed the bill into law this summer. HB 1205 requires New Hampshire student-athletes to play on sports teams that correspond to the biological sex recorded on their birth certificates.

The requirement that students stick with their biological sex at birth for sports teams is an obvious legal mechanism to discriminate against transgender girls, the judge claimed.

“Indeed, transgender girls are the only group whom the Act bars from playing on the team associated with their gender identity. HB 1205’s ‘disparate treatment of transgender girls because they are transgender is clear on the face of the statute,’ and this ‘singling out of transgender females is unequivocally discrimination,’” McCafferty wrote.

HB 1205 supporters have said the bill aimed to protect the integrity of girls sports and prevent biologically male transgender students from gaining a competitive advantage over biological girls. The bill also sought to protect girls from being injured by biologically male athletes.

But McCafferty notes that neither Tirrell nor Turmelle are likely to have any physical advantage over their prefigured teammates. Both children are receiving female hormone therapy and are not expected to undergo normal male physical development. 

“Neither Parker nor Iris have undergone male puberty. Neither of them will undergo male puberty. Both have received hormone therapy to induce female puberty, and both have developed physiological changes associated with female puberty. It is uncontested that there is no medical justification to preclude Parker and Iris from playing girls’ sports,” McCafferty wrote.

Instead, McCafferty relies largely on an expansive reading of the 2020 U.S. Supreme Court’s Bostock v. Clayton County decision regarding sex-based dress codes in the workplace. However, Justice Neil Gorsuch, writing for the majority, explicitly stated that the ruling only applied to the case the Court was addressing at the time.

“The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.”

Michael Garrity, spokesman for the New Hampshire Department of Justice, said the agency is considering the next appropriate step.

“We are currently reviewing the court’s decision and are in the process of evaluating the implications of the ruling. We remain dedicated to providing a safe environment for all students. The state will continue to consider all legal avenues to ensure that we uphold both the law and our commitment to student welfare,” Garrity said.

United States District Court Judge Landya McCafferty ruled again Tuesday to prevent New Hampshire from enforcing its law keeping biological males from participating in girls sports.

The judge extended a temporary order allowing 15-year-old Parker Tirrell to play on the Plymouth High School girls soccer team. Tirrell and 14-year-old Iris Turmelle have filed a lawsuit challenging the state’s new Fairness in Women’s Sports Act.

When Gov. Chris Sununu signed the law last month, he made New Hampshire the 26th state to pass laws protecting girls sports from male athletes.

New Hampshire Attorney General John Formella and his office are defending the law, both in New Hampshire and at the national level. His attorneys are in court before Judge McCafferty, and he’s joined 25 other state attorneys general urging the U.S. Supreme Court to take up the issue.

“We remain committed to vigorously defending this new law and will determine next steps once the Court issues its order,” Formella said.

In New Hampshire, both sides have requested a bench trial, rather than a jury trial. McCafferty signaled during Tuesday’s hearing she will likely rule in favor of Tirrell and Turmelle, saying she believes the New Hampshire law violates Title IX, the law that protects women’s sports, and Title XII, the law against employment discrimination. 

If McCafferty does strike down the law, the decision to pursue an appeal will almost certainly be made by New Hampshire’s next governor. And if it is a Democrat, it’s all but certain the law will be allowed to die and girls will be competing against biological males once again.

Neither former Manchester Mayor Joyce Craig nor Executive Councilor Cinde Warmington would respond to questions about this case from NHJournal. However, they’ve both made it clear they oppose the new law.

“These bills are an attack on at-risk trans kids across New Hampshire. Our state needs leadership focused on delivering results, not division. As governor, I will always stand up for the right of our residents to live authentically, without demonization,” Craig said.

Executive Councilor Cinde Warmington, who is challenging Craig in the Democratic primary, linked banning boys from girls sports teams to violent hate crimes when the law was signed this summer.

“We’ve seen a rise in hate crimes against our LGBTQ+ community, in part because radical Republicans have villainized trans kids who’re already vulnerable & at a higher risk of suicide. When I’m governor, everyone will be free to love who they love & be who they are,” Warmington said on social media.

The two GOP candidates for governor have a very different view.

Chuck Morse, running against Kelly Ayotte in the GOP primary, says he’d fight for an appeal if elected.

“As governor, I would absolutely pursue an appeal if the court finds against the state. It is a question of fairness and protecting the rights of women to play sports on a level playing field. To me it is simple: boys should play against boys and girls should play against girls,” Morse said.

Ayotte agrees.

“As the only candidate for governor who has actually argued before the Supreme Court, I will do whatever it takes to defend our state. As the proud mom of a three-sport state champion female athlete, I believe protecting women’s sports is a matter of fairness. Women fought for decades to achieve that fairness through Title IX. When I am governor, New Hampshire’s female athletes will have a champion in the Corner Office,” Ayotte said.

Polls show Granite Staters overwhelmingly support allowing girls to compete in girls-only sports, rather than forcing them to compete against biological males who identify as female. It’s not just theory, either. A biological male took 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.

At the global level, the top two boxers in women’s Olympic boxing both had male chromosomes.

Lawyers for Tirrell and Turmelle want to block the law from taking effect throughout the state, arguing that stopping transgender girls from playing girls sports is discriminatory.

“This law was designed to prevent trans girls from playing sports with other girls … The only difference is their sex assigned at birth. Girls not assigned female at birth are being excluded,” said Chris Erchull, an attorney with GLAD, the GLBTQ Legal Advocates and Defenders organization which is representing Tirrell and Turmelle.

Assistant Attorney General Micheal DeGrandis argued legal precedent allows public institutions, like schools, to make distinctions between boys and girls. The New Hampshire law makes that distinction in an objective, equitable manner by requiring every student to play on sports teams that correspond to their biological sex at birth.

“We’re not trying to define ‘sex’ at all, we’re just saying ‘What does it say on your birth certificate,’” DeGrandis explained.

While the law might mean students like Tirrell and Turmelle are required to play coed sports instead, that does not make the law unconstitutional. The law was crafted as a way to protect competitive fairness in girls sports, and to keep biological girls safe from possible injury, DeGrandis said.

“There was no discriminatory intent or animus. This was an attempt to solve legitimate problems, even if people disagree with the best way to do it,” DeGrandis said.

The appropriate remedy for those opposed to the law should not be in court, DeGrandis said, but in the democratic political process, who noted there is an election happening in a few months.

“The Court should not be making decisions for the legislature,”  he said.

McCafferty extended the temporary restraining order that allows Tirrell to practice and play soccer with the girls team for another two weeks. McCafferty could rule on an injunction the teens are seeking against the law during that time. That injunction would likely be in place through any trial.

A federal judge ruled Monday that a male Plymouth Regional High School who identifies as a girl can still play on the girl’s soccer team.

United States District Court Judge Landya McCafferty, an Obama appointee, issued a temporary restraining order allowing Parker Tirrell, 15, to keep playing, in violation of HB 1205, the new law banning biological boys from girls sports.

The order only applies to Tirrell and no other students in New Hampshire. However, McCafferty said in her order that a more broad injunction against the law is possible following a hearing set for Aug. 27.

The cause of the high school sports careers of Tirrell and Iris Turmelle, a Pembroke Academy boy who also identifies as a transgender girl, is being championed by GLAAD and the American Civil Liberties Union of New Hampshire in the federal lawsuit filed earlier this month.

Turmelle is not playing on any fall sports teams and was not part of Monday’s hearing.

HB 1205 which took effect on Monday, was passed in the wake of a series of high-profile incidents in which biological males won girls championships or injured female competitors while playing girls sports in New England. But GLAAD lawyer Chris Erchull argued Monday that Tirrell has no physical advantages over the girls since having started hormone therapy, according to NHBulletin reporting.

Assistant Attorney General Michael DeGrandis argued against the temporary restraining order, telling McCafferty there is no need to block the law while the case is pending.

Monday’s hearing came as a social media rumor swirled that the state planned to make a deal on the temporary restraining order with Tirrell and the GLAD and ACLU lawyers. New Hampshire Department of Justice General Counsel Chris Bond told NHJournal no deal was ever in the works.

“There is not now and there never was a deal regarding entry of a TRO. The Attorney General’s Office is responsible for defending the duly enacted laws of the State of New Hampshire when they are challenged in court. Given that mandate, the AGO will not voluntarily assent to a TRO that would result in the temporary suspension of the provisions of [the law],” Bond said in an email.

Those on the left see McCafferty’s ruling as the first victory in abolishing the law.

“Transgender youth, like all adolescents, want and deserve every opportunity to experience joy, including through activities like school sports. We won’t stop fighting until they have that opportunity again,” the ACLU posted on social media.

Meanwhile, some on the right are frustrated, not by Monday’s ruling, but by the law itself. Cornerstone Action Executive Shannon McGinley said HB 1205 was doomed to fail due to the actions of Gov. Chris Sununu.

Last month, when Sununu signed HB 1205 to keep biological males out of girls sports he also vetoed HB 396, a law that would have made it legal for the state to make legal distinctions based on biological sex and separate men from women in bathrooms, locker rooms, and jails.

“The new law uses birth certificates as the definition of biological sex – an unwieldy and unworkable concept that has failed both practically and legally around the country,” McGinley said.

“What Gov. Sununu has just done is a fraud, not a compromise. He caved entirely to the most far left 10 percent of the state while giving nothing to female prisoners, athletes, and vulnerable students,” McGinley said.

Kearsarge Regional High School sophomore Maelle Jacques, a biological male, took first place in the girls high jump competition on Sunday, beating every female in the New Hampshire Interscholastic Athletic Association (NHIAA) indoor track and field championship.

As expected, Jacques dominated and finished with a 5’1” mark, an inch better than any other athlete in the girls Division II competition. In the boys Division II, the lowest high jump was 5’8”, and the winning jumpers hit 6’2”.

The NHIAA did not respond to NHJournal’s request for comment last week. The non-profit group that oversees high school sports allows athletes to compete in whatever gender division they choose.

Jacques’ participation on the girls team, as well as Jacques’ string of wins over the last two indoor track seasons, have garnered national attention. Outspoken supporter of women’s athletics and 12-time All-American swimmer Riley Gaines blamed Kearsarge parents for allowing their child to take wins away from female athletes.

“How could the parents of this boy allow their son to cheat deserving women out of opportunities? And why don’t the parents of the girls stand up and say ‘no’ for their daughters?” Gaines posted on social media. “This country is full of failing, gutless mothers and fathers.”

Meanwhile, Democrats in the New Hampshire legislature continue to oppose legislation that would protect girls sports from male athletes. Rep. Tim Horrigan (D-Dover) dismissed concerns about Jacques’ domination of the girls high jump, calling it an “obscure competition.”

When state Rep. Timothy Horrigan (D-Durham) dismissed high school girl’s track as an “obscure competition,” some Granite State women were ready to run him off the field.

“Rep. Tim Horrigan’s statements belittling women’s sports should be a rallying cry to all women to stand up to the crazy out-of-touch liberal Democrats who do not appreciate or celebrate the uniqueness of women,” said Kate Day, former Chair of the Cheshire County Republican Committee. “There is a biological reason we have women’s sports. Horrigan certainly dismisses any concern for women’s safety and the spirit of competition between women.”

Horrigan made his comments while testifying against SB 524, which would prohibit biological men from competing in women’s sports. During his testimony, Horrigan referred to women and girls as “so-called ‘biological females.’” He also referenced the case of Kearsarge Regional High School sophomore Maelle Jacques, a biological male who is on the girl’s track team. Jacques has dominated the high jump the last two seasons, competing against high school girls, and is expected to win big at an NHIAA meet this Sunday.

“We don’t even know if she’s actually trans,” Horrigan said of Jacques, “but if she is, that’s certainly a very unfair thing [to keep her from competing]. A lot of these cases, they are pretty obscure competitions that normally sports fans wouldn’t be paying much attention to.”

After NHJournal reported Horrigan’s comments, several women reached out to lambast the liberal legislator’s apparent misogyny. 

“So, if it’s such a small percentage of the population, we shouldn’t care about and ignore their needs?” asked Pamela Tucker, former state GOP vice chair.

“Rep. Tim Horrigan’s statement sends the message that we shouldn’t care about our young females in certain sports. You can’t minimize a sport to fit your agenda,” said Nashua mom Kimberly Allan.

“As a mom, I have concerns about men participating in women’s sports. It is important to ensure fairness and a level playing field for all athletes. Men generally have physical advantages such as greater strength and size, which can create an unfair advantage in certain sports. Allowing men to compete in women’s sports could potentially hinder the opportunities and achievements of female athletes who have worked hard to excel in their respective fields.

“It’s crucial to prioritize the protection and advancement of women’s sports, providing female athletes with the recognition and opportunities they deserve.”

Asked about his comments, Horrigan gave NHJournal a “no comment.” However, he then turned to social media to show his solidarity with female athletes.

“Don’t believe anyone who doubts my support of women’s sports. I am at yet another UNH women’s basketball game,” Horrigan wrote.

State House Democrats overwhelmingly oppose measures to protect women’s sports from biological males who choose to compete as females, and they plan to fight SB 524. However, polls show Americans overwhelmingly oppose allowing biological men to compete in women’s sports, and that opposition is growing.

State GOP chair Chris Ager said women are tired of getting erased by progressive Democrats who dismiss them and their concerns.

“The NHGOP is disappointed that Rep. Horrigan has such low regard for women’s sports achievements. Republican women are speaking out,” Ager said.

If other Democrats were upset with Horrigan, they were keeping it to themselves. House Minority Leader Rep. Matt Wilhelm (D-Manchester) did not respond to a request for comment.

Unfortunately for Democrats, Horrigan has a history of making denigrating statements about women. In 2010, Horrigan was forced to apologize after he joked on Facebook about former Alaska Gov. Sarah Palin getting killed in a plane crash.

“I don’t wish Sarah Palin dead … but not merely for compassionate reasons. I also want her to live because a living Sarah Palin is less dangerous than a dead one. “A dead Palin is more dangerous than a live one,” he wrote.

Horrigan apologized to House leadership the following day and later announced the end of his reelection campaign.

“She is, as far as I know, not a bad person at all—and certainly she deserves to live a long and happy life,” Horrigan wrote to then-House Speaker Terie Norelli (D-Portsmouth.)

Horrigan then reneged on his resignation and was promptly re-elected in his deep-blue district.