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The attorney for the Bow, N.H., school district compared free speech to “poison” in his argument before a federal court Wednesday.

Jonathan Shirley, attorney for SAU 67, is defending the district’s decision to ban parents from wearing pink wristbands marked with “XX” in a silent protest of biological males in girls sports.

The district’s actions were upheld by United States District Court Judge Stephen McAuliffe in a controversial ruling that appeared to defend the government’s right to discriminate against speech based on viewpoint. In his ruling, McAuliffe labeled wearing the pink XX wristbands as a form of “assault” on people who identify as transgender. 

Parents Anthony Foote, Kyle Fellers, Nicole Foote, and Eldon Rash are appealing the decision, which was heard by a three-judge panel at the federal courthouse in Boston.

The Bow High School principal and the school’s athletic director ordered the protesting parents removed. They were later issued no-trespass orders, barring them from school property.

The parents want to be able to engage in silent protests at high school games. But Shirley told the court the potential danger presented by middle-aged parents wearing wristbands is too great.

“You know, poison is often determined by the dose,” Shirley said of their right to protest. “We’re talking about future events where we don’t have an understanding of how many people are going to be showing up with these wristbands.”

Del Kolde, the lawyer with the Institute for Free Speech representing the parents, promptly replied: “Your Honors, free speech is not poison.”

The judges were clearly puzzled by — if not outright hostile to — the district’s claims that speech that offended others or hurt their feelings should not be protected by the First Amendment.

The school district has openly engaged in viewpoint discrimination, acknowledging that pro-LGBT messaging would be allowed, but not the pink wristbands. It argues that its policy is legal due to its fear that the protest would get out of control and lead to players feeling bad about themselves.

“The school district should have the ability to step in and say, ‘Listen, we think we know where this is going. We need to stop you now,” Shirley told the justices. 

While schools have a legal obligation to protect students from harassment, they cannot be given the authority to stop protests in case they might become disruptive and lead to harassment, Kolde argued. That would allow government entities to shut down any speech they dislike.

“It essentially becomes a get out of jail free card for viewpoint discrimination,” Kodel said. “People are just going to complain and say, ‘I feel harassed by that message’ when they disagree with the message, when they don’t want it to be heard. And that will lead to much more censorship in the First District.”

The wristband protest took place a week after a federal court judge ruled in favor of transgender Plymouth High School student Parker Tirrell. Tirrell challenged the 2024 New Hampshire law banning biological boys from playing on girls’ sports teams and, on Sept. 10, 2024, won the right to play soccer on the Plymouth girls’ team. The Foote’s, Rash, and Fellers were protesting at the Bow game against Plymouth as Tirrell was on the field. 

Case records show that SAU 67 Superintendent Marcy Kelley and other officials were not concerned about a disruptive protest; they simply did not want any protest of any kind against transgender athletes, Kolde said. Kelley testified last year that she believes the XX wristbands convey an “exclusionary” message against transgender athletes competing with girls, something she could not allow. At the same time, Kelly said pro-LGBTQ symbols like rainbow flags are fine since she deems them to be “inclusionary.” But Kelley isn’t allowed to pick and choose what people say in public, Kodel told the justices.

Justices Sandra Lynch, Julie Rikelman, and Jefferey Howard seemed to accept Kolde’s argument that SAU 67 overstepped the constitution when officials directed the parents to take off the armbands. They also questioned if the district’s fear that the protests would get out of hand is enough legal justification to curb free speech rights.

Lynch pointed out that school officials actually caused a disruption when they confronted the parents at the game, but Shirley tried to blame the parents.

“The disruption was their refusal to follow the directive (to remove the armbands),” Shirley said.

“If the directive was unconstitutional viewpoint discrimination, then you have a problem,” Lynch responded.

The parents should be allowed to engage in silent, non-disruptive protests, Kodle said, even if school officials do not like the message.

“We don’t all have to agree on transgender issues, but if we’re going to get along in a pluralistic society, people have to be allowed to quietly express their views on terms equal to other parents. We all know that if they had worn pride flags and wristbands, we wouldn’t be here today,” Kolde said.

 The parents punished by SAU 67 administrators for wearing pink “XX” wristbands to a Bow High School girls’ soccer game have an appeal hearing scheduled before the First Circuit Court of Appeals in Boston.

Anthony Foote, Kyle Fellers, Nicole Foote, and Eldon Rash are appealing U.S. District Court Judge Stephen McAuliffe’s ruling in favor of the district. McAuliffe ruled that SAU 67 has the legal authority to restrict its protest to protect a biological male playing on a girls’ soccer team.

“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 in his April ruling.

Del Kolde, a lawyer with the Institute for Free Speech representing the parents, argues McAuliffe’s ruling gives the district permission to engage in unconstitutional viewpoint discrimination.

“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. In a limited public forum like a school sporting event, such restrictions amount to textbook viewpoint discrimination,” Kolde wrote.

The appeal is scheduled for a Nov. 5 hearing in Boston.

Fellers, the Footes, and Rash were disciplined by school officials during a game last September when Bow played Plymouth High School, which featured male student Parker Tirrell, who identifies as female.

Bryan Cullen, SAU 67’s attorney, said the district has the authority to curtail the parents’ right to silently protest because a transgender athlete was on the field.

“While plaintiffs cast their conduct at the Sept. 17 [2024] game as ‘silent protest,’ the district reasonably viewed it as intimidation aimed at [transgender student] 15-year-old Parker Tirrell,” Cullen wrote in his brief filed Friday.

The parents were ordered to remove the wristbands or leave the field. Anthony Foote and Fellers were later served with no-trespass letters banning them from all future after-school activities.

McAuliffe overturned the ban on Fellers and Foote attending games or other activities, but sided with the district by allowing school officials to ban any protest that could be deemed as targeting transgender players.

Tirrell, the central figure in both Cullen’s argument and McAuliffe’s ruling, made headlines last year with a high-profile lawsuit against the state of New Hampshire. Tirrell successfully challenged the 2024 law preventing biological boys from playing on girls’ teams. With help from GLAAD and the ACLU of New Hampshire, Tirrell and fellow transgender student Iris Turmelle won the right to try out for and play on their respective girls’ teams.

Bow officials anticipated a disruption at the game after Foote and Fellers made their concerns known about biological boys competing against their daughters. Cullen argued that Bow had a duty to protect Tirrell from potential harassment, including protests involving the pink wristbands.

Even if Tirrell was not on the field, Cullen argued that protests such as wearing XX wristbands need to be banned at essentially every game because a transgender student could be participating without school officials’ knowledge.

“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. 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,” Cullen wrote. “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.”

When a citizen criticized its progressive transgender policy at a public hearing, the Kearsarge Regional School Board put its foot down.

And stepped right into it.

The affluent district, which spends about $33,000 per student, has settled a lawsuit filed by activist Beth Scaer, agreeing to drop its “no derogatory comments” policy and commit to viewpoint-neutral treatment of all speakers. The district will also pay $33,000 in costs to Scaer’s legal team, as well as the non-profit Institute for Free Speech.

“Government by the people depends on the freedom of all citizens to dispute the most controversial issues of the day without censorship,” said Institute for Free Speech Attorney Nathan Ristuccia, the lead litigator in the case. “We are proud that we were able to help Beth Scaer protect the rights of all Americans to participate in political debate.”

The board used its constitutionally-suspect “no derogatory comments” policy during a 2024 public meeting to shut down Scaer’s comments after she referred to a biologically male athlete who competes on a girls’ soccer team as a “tall boy” and drew attention to the student’s physique. Board Chair Alison Mastin reportedly threatened to have police intervene against Scaer during the meeting because of her “derogatory” comments.

Scaer brought the lawsuit after she was silenced during the Kearsarge meeting that was called to discuss the Fairness in Women’s Sports Act. At the time the board silenced her, Scaer was attempting to discuss biological differences in athletic competition.

Other members of the public at the same meeting, however, were permitted to display signs with the student-athlete’s name and to use harsh and arguably offensive language to express their viewpoints — at odds with Scaer’s — without interruption. Those attendees were not found in violation of the school policy. Ristuccia said the settlement provides new protections against such unconstitutional enforcement.

The school district has also ended the practice of allowing biological males who identify as female to play on girls’ sports teams. And it’s writing a check to Scaer for $17.91, a symbolic evocation of the year the Bill of Rights was ratified.

All of the payouts will be covered by Primex, the district’s insurance company, and the agreement not involve any admission of wrongdoing. Instead, the settlement explicitly states it is to “buy peace” from further litigation or controversy.

“I’m pleased that the school board has agreed to important changes that will protect every citizen’s right to speak at public meetings,” Scaer said. “This settlement ensures that what happened to me won’t happen to others. Citizens can’t meaningfully participate in democracy when officials can silence them based on vague, unwritten rules.”

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.

The convicted sex offender allowed to hang out at Kearsarge High School girls’ soccer games to support his transgender child is getting time to make a deal in his latest child sex abuse image criminal case.

Marc Jacques, 51, is facing one count of possessing child sex abuse images after he was caught downloading videos and photos depicting children being sexually abused while he was out on supervised release for a prior child sex abuse image conviction.

This week, United States District Court Judge Talesha Saint-Marc approved a joint request to delay a scheduled probable cause hearing, as well as possible grand jury indictments. The delay until September is to give both prosecutors and attorneys for Marc Jacques time to reach a plea agreement.

Whatever agreement prosecutors reach with Jacques, it’s unlikely to be as good as the sweetheart deal he got last year.

Despite pleading guilty to possession of child sex abuse images in March 2024, he was allowed to remain free on bail pending sentencing. Jacques was then sentenced in September to five years in prison, but still the former Dartmouth College employee was allowed to remain free on bail until Dec. 2.

Jacques used that free time to hang around at kids’ soccer games and, according to the new charges, download more child porn.

How did Jacques stay out of prison? He used his son, Maelle Jacques, and his status as a transgender female athlete, to leverage sympathy from New Hampshire’s legal system and the Kearsarge school district.

Marc Jacques is the father of Kearsarge High School’s Maelle Jacques, a biological male track athlete who won a 2023 NHIAA girls championship. Maelle Jacques’ participation on the Kearsarge girls’ soccer team last season caused several teams to forfeit games as the district openly flouted a state law banning biological boys from girls’ sports.

Marc Jacques was attending games and other after-school events with the knowledge of Kearsarge school administration and the school board. Though the school district did not notify other schools that their star player’s father is a convicted sex offender, word started getting out among parents.

According to former United States Attorney for the District of New Hampshire Jane Young, it took the effort of many concerned parents to get the United States Probation Department to take a second look at how Marc Jacques was spending his free time.

“I commend those parents for calling here. I would ask if there is a parent who has concerns that they continue to call,” Young said.

Marc Jacques was arrested on the new charge in October for allegedly accessing and downloading child sex abuse images in August and September using devices that his probation officer was supposed to be monitoring, according to Homeland Security Investigations Agent Derek Dunn’s affidavit. The videos and images reportedly depict prepubescent girls being abused.

Marc Jacques was allowed to use a laptop, a desktop computer, and a cell phone while on bail after his probation officer installed monitoring software. The monitoring software captured the activity when Marc Jacques allegedly downloaded the child sex abuse material, but his probation officer didn’t check the software reports until October, Dunn writes, after parents started to alert authorities about his game attendance.

After hearing from parents, the United States Attorney’s Office contacted Marc Jacques’ probation officer on Oct. 15 to discuss the conditions of release set for the convicted sex offender. This conversation prompted the probation officer to check the monitoring software on Oct. 16, for the first time since at least August, according to Dunn’s report.

After Marc Jacques was arrested in October, Kearsarge Superintendent John Fortney claimed there was nothing he could legally do about the situation.

“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,” Fortney said in a letter sent to parents after the arrest.

No letter was sent to parents before the arrest alerting them that a convicted sex offender was attending their children’s games.

But Kearsarge leadership does take action to protect some students. Kearsarge School Board Chair Alison Mastin threatened to have a member of the public arrested for the crime of misgendering Maelle Jacques.

During the public comments portion of an August school board meeting, Mastin reportedly stopped conservative gadfly Beth Scaer from talking and threatened to have her arrested when Scaer called Maelle Jacques a “tall boy.” Maelle Jacques is at least 6 feet tall and appears to have gone through puberty as a male. Scaer has since filed a lawsuit against Mastin and Kearsarge on free speech grounds.

Why would Kearsarge School Board Chair Alison Mastin threaten to have a member of the public arrested for speaking at a public meeting?

According to the new lawsuit filed in the United States District Court in Concord, because the speaker called a biological male athlete who identifies as female a “tall boy.”

Beth Scaer, a well-known conservative Granite State activist, made her comment during an August meeting as the Kearsarge board was dealing with the state’s new law banning biological males from girls’ sports. Kearsarge is home to champion high school athlete Maelle Jacques, a boy who identifies as a girl and won first place in the girls’ high jump competition last year.

Maelle Jacques is not named in the lawsuit, but referred to as MJ. The Kearsarge School Board voted this summer to ignore the new law in order to allow Jacques to keep playing.

Maelle Jacques

During the August board meeting, “Mastin ruled Scaer out of order, declared the remainder of her three minutes forfeited, and stated that she would be removed by the police if she continued to speak. Mastin was visibly angry at Scaer,” the lawsuit states.

“School boards cannot invent speech rules on the fly to silence citizens expressing views they dislike,” said Institute for Free Speech Attorney Nathan Ristuccia, who is representing Scaer. “This unwritten rule about ‘derogatory’ comments gives the board unchecked power to determine which speech is acceptable and which isn’t—precisely what the First Amendment prohibits.”

Beth Scaer and her husband, Stephen “Sidewalk Steve” Scaer, came out to support the law that they say protects women and girls. They may have been the only ones in the room willing to speak out in favor of it, according to the lawsuit. 

All of the people who wanted to have their say during the public comment period were allotted three minutes, but warned “not [to] speak derogatorily about anyone or anything.” Jacques spoke, as did Stephen Scaer, who went into detail about “experimental gender medicine.”

Beth Scaer was the only speaker that night to get cut off before her three minutes were up. She started her prepared remarks about the potential physical dangers male athletes pose to females, noting that Jacques is much larger than the girls on the Kearsarge soccer team. When she used the phrase “tall boy” to describe Jacques’ physique, the hammer came down.

“Mastin interrupted and disallowed Scaer from saying anything further,” the lawsuit states.

Beth Scaer

Scaer was not told what law she broke or rule she violated during her short time speaking to justify getting threatened with police removal. It was later added to the board meeting minutes that the “tall boy” comment was the social sin. 

New Hampshire’s law banning biological males from girls’ sports has since been struck down by a federal judge using the controversial premise that males who identify as female are “girls” in the same way that biological girls are. That premise is likely to be reviewed by the U.S. Supreme Court.

Scaer says the lawsuit isn’t about her, it’s about protecting free speech.

“Everyone deserves an equal opportunity to address their elected officials without fear of censorship,” Scaer said. “This case is about ensuring that all citizens, regardless of their viewpoint, can participate in public meetings and comment on issues that are important to the community.”

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.

Two Granite State high school girls are so frustrated at having to compete against biological males in all-girls sports competitions that they want to join the ongoing federal lawsuit to defend New Hampshire’s women’s sports law, as well as the two executive orders issued by the Trump administration that protect women’s sports.

“Because I work so hard, it is frustrating and disheartening when it feels like the rights of female athletes are being sidelined or ignored,” one girl said in her court motion. 

Two New Hampshire girls, K.D., and B.W., filed motions along with other female athletes and the organization, Female Athletes United, this week to join the lawsuit brought by biological males Parker Tirrell and Iris Turmelle. The latter two are suing the State of New Hampshire and President Donald Trump for the right to compete in girls-only sports competitions.

Alliance Defending Freedom attorneys representing Female Athletes United, an association of female athletes, filed a motion Friday with the U.S. District Court for the District of New Hampshire to intervene in the Tirrell v. Edelblut lawsuit.

The lawsuit was first filed in response to New Hampshire’s law, signed by then-Gov. Chris Sununu. But the lawsuit was expanded to include Trump after he signed an executive order titled “Keeping Men Out of Women’s Sports.”

“With this executive order, the war on women’s sports is over,” Trump said at the time.

Schools are required to comply with Title IX, which prohibits discrimination based on sex for programs receiving federal funding. The Biden administration issued a rule change declaring an athlete’s sex as “gender identity,” reversing decades of precedent.

The Trump order returned to the recognized biological definition of sex as determined by biology.

Jonathan Scruggs, an attorney with the legal non-profit Alliance Defending Freedom, said the case boils down to whether there’s a physical, biological difference between men and women. For Scruggs and the female athletes, it’s clear men and boys are different from women and girls.

“Biological difference is the obvious matter, and that’s why we’ll win,” Scruggs said.

However, the presiding judge in this case, United States District Court Judge Landya McCafferty, previously wrote in an initial ruling that neither Tirrell nor Turmelle have any physical advantage as biological males.

“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.

But K.D., who is from Bow, says in her motion that Tirrell had a definite advantage when she played against him, and he knocked her to the ground several times during game play. She described Tirrell as being larger and more muscular than the girls who were competing. The two played against each other during games in an indoor soccer league 

“In this league, I played against Parker on multiple occasions. Because I was scoring a lot, Parker was assigned to defend me, so we often came into physical contact with one another while playing. On several occasions, Parker knocked me down. It felt noticeably different than when I have run into a female when playing. Parker is sturdier, more muscular, and overall just built differently than a female,” K.D. said in her motion. “I was angry and upset that a male was playing against me and knocking me down. It felt inappropriate and unfair that something like this was happening and that no one in charge seemed to recognize what I and the other girls were going through in having to play against a male.”

Scruggs said K.D.’s experience shows that the popular talking point among activists — that ‘transgender’ players do not have any size or strength advantage over women and girls, is just wrong.

“We’ve seen this kind of false narrative on this subject for some time,” Scruggs said. “The fact is someone’s gender identification is not relevant to athletic performance, biology is.”

B.W., a Gilmanton girl, wrote in her motion that she was apprehensive when her team played against a high school team that included a large biological male as goalie. B.W.’s motion does not name the athlete, but stated she considered the male player’s presence a concern.

“Although we won, it still felt like a violation of the rights of female athletes to have a sports team designated for girls. Especially, because as the male student is the starting goalie, that student was taking a place on the field that would otherwise have gone to a female athlete. If a male student joined my team, I would strongly consider no longer playing for my school. I think it is unsafe and unfair for a male to take a girl’s spot on the girls’ team,” B.W. stated.

Both K.D. and B.W. illustrate the core problems with transgender athletes in girls sports, Scruggs said. 

“It’s a matter of fairness and safety,” Scruggs said. “These have real-world consequences.”

Scruggs said if actual biology is taken into consideration, then Tirrell and Turmelle’s lawsuit ought to be dismissed.