School district creates 'protest zone' for opponents of transgender sports policy after getting sued

New Hampshire's Bow School District has devised a compromise after getting sued for banning attendees at a high school girls' soccer game from wearing pink bracelets marked with "XX" as a silent protest against its transgender sports policy, which lets males compete in girls' games.

It set up a "Designated Protest Area" near the playing field for future Bow High School games so the plaintiffs, minus one subject to a no-trespass order, can exercise their First Amendment rights, but only because the sole male player in the girls' league won't play Bow again.

"This is in an effort to limit distraction" at games, and protesters "may be deemed as disruptive and result in the game being suspended" if they stay in the stands, State Administrative Unit 67 Superintendent Marcy Kelley wrote in an Oct. 1 email, the day after the suit was filed.

Bow's Oct. 7 opposition to the plaintiffs' motion for a temporary restraining order calls this "a valid exercise" of the district's authority to set time, place and manner restrictions, and says it eviscerates the plaintiffs' argument for their "likelihood for irreparable harm," which simply complains that the "protest zone offers a less advantageous view of game play."

Just the opposite, parents Kyle Fellers, Nicole and Anthony "Andy" Foote and grandparent Eldon Rash argue in their Oct. 4 memorandum in support of the motion for a TRO and preliminary injunction.

The new policy applies to "spectators at all extracurricular activities," which guts the district's argument that "the ban is targeted toward harassment or disruption" rather than their gender-critical viewpoint, the memo says.

If the district and officials "were concerned about harassing a specific student-athlete" during the Bow-Plymouth Regional High School game Sept. 17 – transgender player Parker Tirrell – "why continue banning parents from wearing pink wristbands at other games as well?"

"And is it more disruptive to silently wear a pink wristband on the parents’ sideline while watching the game than to gather a group of 50 protestors to chant beside the scoreboard?" the filing says.

Unlike a New Hampshire federal court ruling that upheld a school's prohibition on a specific student from wearing a "No Nazis" patch, following months of "hostility and incidents of provocation, harassment, and threats" between two groups of students, the Bow defendants "overreacted to no incident at all," just adults at an "after-school public event," plaintiffs said.

They did not "ridicule or threaten any particular students," as the district argued, a view "untethered from reality," the memo says. "Andy Foote went out of his way to deflect criticism away from the student" in a pre-game Facebook post and "did not even know the player’s name until the game started."

In its opposition, the district argues the adults' behavior unavoidably targeted 15-year-old Tirrell, who – along with transgender player Iris Turmelle, who doesn't plan to play sports until next month – won an injunction this summer that exempts them alone from the state's law prohibiting "students of the male sex" from eligibility for "sports designated for females."

"Plaintiffs tried stomping on the right of Parker Tirrell to be left alone to play soccer and now have the gall to paint themselves as victims," it says. 

The two sides appeared before U.S. District Judge Steven McAuliffe on Tuesday afternoon, hours before a Bow girls' soccer game, to consider the emergency motion for a TRO, NH Journal reported. The district imposed a season-long ban on Fellers that prevents him from watching his daughter's games but also picking up his kids at school and attending other extracurricular activities.

President George H.W. Bush nominee McAuliffe denied the full emergency motion to the Institute for Free Speech, which is representing the plaintiffs, for "failure to meet its burden to establish likelihood of success on the merits," a docket entry shows, but let Fellers attend games so long as he doesn't protest, including wearing the wristbands.  

The judge ordered defendants to produce the police bodycam footage from an officer's interaction with the plaintiffs at the game. A hearing for a preliminary injunction will be scheduled.

IFS told Just the News it was busy responding to a victory in Florida on behalf of its client Moms for Liberty in a First Amendment challenge to restrictions on speaking at school board meetings and couldn't immediately comment.

The choice of language in their filings show the diametrically opposed viewpoints of each side.

The defendants avoid sex-based terms except to paraphrase Tirrell's declaration, which states "because of hormone therapy [Tirrell] had not and will not undergo male puberty," and repeatedly mention Tirrell – often by first name alone – and the teen's litigation, which prompted the district to let all transgender students play on opposite-sex teams.

The opposition and declaration by Superintendent Kelley refer to HB 1205 as pertaining to "transgender girls" and "trans-girls," respectively, despite the fact that the state law ignores gender identity altogether, only mentioning males, females and "biological sex."

The defendants' lawyers did not answer a query Tuesday from Just the News on whether they're saying that referring to a player's sex alone is prohibited, why they avoid referring to sex and the potential scope of their reasoning on disruption.

By characterizing certain symbols as inherently disruptive, the district's policy could conceivably authorize officials to ban symbols associated with Black Lives Matter, Trans Lives Matter or even watermelon-themed apparel, which pro-Palestinian activists have widely deployed since the Oct. 7, 2023, Hamas terrorist attack on Israel because the colors match the Palestinian flag.

The parents and grandfather behaved far more poorly than their filings acknowledge, justifying their sanctions, according to the defendants. (IFS posted their documents on its case page.)

They decorated pink wristbands historically associated with breast cancer survivors with the female symbol and "NAD," which high school Athletic Director Michael Desilets called shorthand for "gonad," in addition to the "XX" for the female chromosomal pair, and posted them on social media before the game.

Desilets got a tip that parents were discussing plans to disrupt the game by "wearing dresses … buying anti-trans gear, making signs, and generally heckling and intimidating the player," his declaration says. "I’m sick of your cowardice and your pandering," Andy Foote wrote to Desilets after the latter reminded parents of state athletics rules on "respect" and "positivity" at games.

Principal Matt Fisk's declaration says Andy Foote "discreetly" handed out "wristbands to adults as they arrived for the game  apparently recognizing that his actions would violate school standards," without explaining what those standards are.

"Fellers repeatedly and loudly challenged" Fisk's order to remove the XX wristband and his "tone was elevated and angry," calling officials "Nazis" and "cowards" for letting Tirrell play and claiming the wristbands were to "protest breast cancer," the principal said.

When officials told his former father-in-law Eldon Rash to remove his wristband, Fellers "compar[ed] the situation to Germany in the 1930’s and 1940’s," Bow Police Department Lt. Philip Lamy's declaration says. Rash only removed it "when other spectators beseeched him to do so," after repeated demands from officials, Fisk said.

Holding a "Protect Women’s Sports for Female Athletes" sign in the parking lot, Fellers refused to leave the premises after Lamy approached him, the officer said. "I was neither particularly close to Fellers nor did I raise my voice" while repeatedly telling Fellers to leave, but he unsuccessfully "tried to provoke me into arresting him" and then "put his sign away."