Voters in four states, from deep blue to deep red, made clear this week that the Democratic Party's predominant position on girls' sports – that males identifying as girls should be eligible – is not a winning message. 

As a result of the capitulation of a New England school district that banned parents from girls' soccer games for silently protesting male participation, school districts and athletic associations that still condition sports eligibility on gender identity will have to think carefully about how to handle opposition.

New Hampshire's Bow School District admitted it violated the First Amendment rights of parents and a grandparent when it "barred" them from wearing "XX" wristbands at the Sept. 17, 2024, contest that included male player Parker Tirrell and agreed Thursday to pay the plaintiffs $275,000 in legal fees to resolve their more than two-year-old litigation.

"Plaintiffs have a First Amendment right to silently wear pink wristbands bearing the XX symbol on the sidelines, in the spectator’s area, or in the parking lot of any Bow District sporting event," the stipulated declaratory judgment and order of dismissal reads, prohibiting the district's initial response to getting sued – creating a "protest zone" further away.

Kyle Fellers, Anthony and Nicole Foote, and Eldon Rash will each receive a symbolic $17.91 in damages, the signature settlement demand of their lawyers at the Institute for Free Speech in First Amendment litigation.

"Parents don’t surrender their First Amendment rights when they walk into a high school soccer game,” IFS senior attorney Endel Kolde said in a statement. "We hope this victory will make other school officials think twice before silencing one side of a public debate."

Fellers said his ban from school grounds prevented him from "watching half of my daughter’s soccer games during her senior year of high school. Something I will never get back."

The Footes' younger daughter plays soccer, basketball and lacrosse at Bow High School, the Concord Monitor reported. Her soccer team plays in the Division II state championship Friday.

IFS spokesperson Tom Garrett told Just the News it has two remaining challenges to restrictions relevant to gender-critical speech: Gays Against Groomers' lawsuit against Colorado lawmakers for public-comment censorship, now pending at the Supreme Court, and ex-transgender activist Simon Price's against Nashua, N.H., for speech-chilling public comment rules.

The judgment and settlement will likely encourage and embolden protests by student-athletes and parents like those in southwestern Washington that shortly preceded the Evergreen State's rejection of gender ideology in school sports. 

Female cross-country athletes from multiple schools forfeited races after male runner Logan Mihailoff switched from boys' to girls' competition mid-season, giving Camas High School a playoff spot that otherwise would have gone to Puyallup.

The female symbol has also made a splash at WNBA games in the season that ended last week with the Golden State Valkyries winning the championship in just their second season. The league, which is facing an eligibility challenge by ex-NBA players, backtracked after fans in XX-XY Athletics gear were ordered to cover up at an Atlanta Dream game.

Thursday's litigation conclusion was fortuitous for opponents of males in girls' sports, whose midterm election ballot measures passed in Arizona, Colorado, Nebraska and Washington state two days earlier. Colorado's measure, whose 5-percentage-point margin was the closest, notably covers collegiate as well as K-12 sports.

"Democrats who broke with trans-movement positions" also won five of seven Senate races, 20 of 21 House races and all four governors' races tracked by gender medicine journalist Ben Ryan as of Wednesday night, with one House and Senate race each not yet called.

Grassroots revolt sparked by initial ruling against parents

The judgment lets Bow School District save face, leaving out that it threatened to arrest Anthony Foote, Rash and Fellers for not removing the wristbands – even sending law enforcement after Fellers to leave school grounds completely – and issuing no-trespass orders against the two fathers. Its silence appears to imply that Bow simply asked them to leave and they obliged.

"Judgment is entered against Defendant Bow School District consistent with this Order," it reads. "This declaratory judgment is binding on the District, its Board of Education, their successors, agents, attorneys, and assigns."

It was approved by U.S. District Judge Steven McAuliffe, whose ruling against the plaintiffs sparked a nationwide grassroots revolt, in no small part because the President George W. Bush nominee deemed the XX symbol a "demeaning and harassing assertion."

Under the settlement agreement, the district will pay the plaintiffs the $275,000 in legal fees, with $50,000 going to local counsel and the rest to IFS, through the state nonprofit public entity risk pool Primex.

It says the district "denies liability or wrongdoing," despite the judgment order stipulating that the district violated the plaintiffs' First Amendment rights. Bow's lawyer, Jonathan Shirley, didn't answer queries.

The 1st U.S. Circuit Court of Appeals, which had no full-time GOP-nominated judges for more than half this decade, stunned legal observers this summer by ruling the district likely practiced unconstitutional viewpoint discrimination against the plaintiffs, though oral argument a year ago suggested skepticism of the district's arguments.

The three-judge panel rejected the district's argument that the wristbands were "intimidating, threatening, harassing, and discouraging" to male competitor Tirrell, who had convinced a federal judge to exempt Tirrell from New Hampshire's law banning males in girls' sports – one of "at least" 27 states with such laws before midterm elections – as Tirrell's lawsuit continued.

Tirrell and co-plaintiff Iris Turmelle withdrew their litigation this summer in light of the Supreme Court upholding state laws like New Hampshire's. The athletes' lawyers also blamed "sideline protests, attacks on social media, and relentless scrutiny" against Tirrell, and said Turmelle's family had already left the state because of anti-transgender proposals.

Though binding only on New Hampshire, Massachusetts, Maine and Rhode Island, the 1st Circuit ruling may persuade undecided federal appellate courts on girls' sports protests because the Boston-based 1st has otherwise been stingy with First Amendment rights for school protests against gender ideology, notably in-school passive expression.

Maine is one of three states after Tuesday's elections with statewide protections for males in girls' sports, alongside the 9th Circuit's California and 2nd Circuit's Connecticut. 

A federal judge dismissed the Justice Department's challenge to California's policies days after the 1st Circuit rebuked Bow School District, on the basis that the feds failed to give the Golden State "clear notice" that it could lose federal money based on the Trump administration's interpretation of Title IX as prohibiting coed athletic participation. A similar DOJ lawsuit against Maine is still pending.

Eligibility determinations elsewhere are decided by state athletic associations and local school boards, according to the Congressional Research Service. New York City's guidelines are particularly confusing, first saying schools may separate students "by gender" for "contact sports" and then saying they "generally" may not.