Parents sue school district for banning silent protest of transgender sports policy at games

Fifty-five years ago, the Supreme Court upheld the First Amendment rights of students by prohibiting public schools from squelching their non-disruptive expression, in that case black armbands opposing the Vietnam War.

The issue arguably resolved by 1969's Tinker precedent keeps percolating in the courts, however, as school districts squelch the same passive form of expression but applied to a newer controversial issue: gender identity versus sex-based rights.

Parents and a grandparent who silently protested male eligibility for girls' soccer, by wearing pink wristbands with the letters "XX" in reference to the female chromosome pair, sued a New Hampshire district, officials and even soccer referee, claiming retaliation against their speech, including a ban on stepping on any school property. 

State Administrative Unit 67 Superintendent Marcy Kelley and Bow High School Principal Matt Fisk declined to comment on the lawsuit. The other defendants didn't respond to Just the News queries.

Kyle Fellers, his former father-in-law Eldon Rash, and Anthony and Nicole Foote are seeking an injunction against a district policy and athletics handbook as applied to their wristbands and signs and any other "non-disruptive expression of political or social views based on audience reaction or a heckler’s veto," and against no-trespass orders for Fellers and Anthony Foote, who goes by "Andy."

The Institute for Free Speech (IFS), whose retaliation suit on behalf of a conservative professor was dismissed last week for lack of legal standing but has been appealed, is representing them.

Their actions at the game shortly followed a federal court ruling that blocked the Granite State from enforcing a law (HB 1205) that "prohibits biological males from participating in female athletics," but applied only to the two male athletes who sued for the right to "try out for, practice with, compete with, and play on" girls' teams, not every male who identifies as a girl.

President Obama nominee Judge Landya McCafferty cited 1st U.S. Circuit Court of Appeals' precedent that interpreted the Supreme Court's Title VII transgender employment discrimination ruling Bostock as also applying to the Title IX educational context. The high court previously said it would not "prejudge" whether the precedent applies to other Civil Rights Act provisions.

The Biden administration's Title IX regulation, which reinterpreted the sex-discrimination statute as protecting and prioritizing gender identity over sex, is blocked in more than half the states and hundreds more school districts and colleges in other states under court injunctions that dismissed the feds' argument that Bostock applies to Title IX. 

The 5th and 6th circuits upheld two of those injunctions this summer, though President Biden's nominees on both three-judge panels would have let non-gender identity provisions in the Title IX regulation take effect.

Advocates for female-only sports got more good news last week, when a federal judge issued an injunction stopping the University of New Mexico from enforcing a security-fee policy on the basis of viewpoint against the hosts of an event with former NCAA swimmer Riley Gaines, who spoke nearly a year ago about competing against transgender record-breaker Lia Thomas.

UNM initially demanded more than $10,000 from its Turning Point USA chapter and the Leadership Institute, where Gaines directs an eponymous center, to pay for 33 police officers. It later billed them half that but the two organizations sued rather than pay, asking a court to stop feared retaliation including loss of charter and a ban on hosting campus events.

"The court clearly sees the double standard" of the university "allowing a drag show to take place on campus with no security fee at all," TPUSA chapter co-President Jonathan Gonzales said in a press release by the plaintiffs' lawyers at the Southeastern Legal Foundation.

The 1st Circuit narrowly construed Tinker when ruling this summer for Middleborough Public Schools in Massachusetts, which banned student Liam Morrison from wearing shirts that say there are "only two genders" – and after his first punishment, "censored genders" – which was his response to the district's pro-LGBTQ messages.

Monday's IFS lawsuit is similar but applies to non-students. It names as defendant Kelley, New Hampshire Interscholastic Athletic Association soccer referee Steve Rossetti, Bow School District, Bow High School Principal Fisk and Athletic Director Michael Desilets, and Bow Police Department Lt. Phillip Lamy.

They treated the district as a "First Amendment free zone, from which they can banish parents who speak in ways the government dislikes," the suit alleges, citing a district policy requiring "mutual respect, civility, and orderly conduct among all individuals on school property or at a school event" and athletics policy against "[p]oor sportsmanship … in the stands.” 

After Judge McCafferty blocked the state law, Desilets told Nicole Foote that he couldn't prevent males from playing in soccer games against girls like her daughter despite her protests about "the competitive unfairness and injury risk to female athletes," according to the suit.

Desilets emailed soccer families the day before the Sept. 17 game, reminding them the NHIAA prohibits "inappropriate signs, references, [and] language" but assuring them "some differing opinions regarding tomorrow’s game ... is perfectly fine."

Fellers and Foote's husband purchased blank pink wristbands "that athletes often wear to raise awareness about breast cancer" and wrote black X marks on them, figuring these were no different than shirts for political candidates, Pride flags and "messages about global warming" that spectators often wear to extracurricular activities, the suit says.

They distributed the wristbands "to around half a dozen other spectators who requested one" and everybody put them on in the second half, and Andy Foote "put a sign of Riley Gaines on his Jeep’s windshield" during halftime.

Andy Foote acquiesced when Desilets told him to remove the wristband as a prohibited "protest" but Fellers refused, prompting Principal Fisk and Lt. Lamy to give him an ultimatum. Lamy falsely claimed they were on private property and was wearing a body camera, "which should have recorded" what the suit calls "heated words" among them.

Grandfather Rash "observed some of the commotion," took the wristband from Fellers and put it on his own wrist, prompting Fisk and Desilets to give him the ultimatum, some of which Andy Foote filmed, then Rash left for his car and stayed there, the suit alleges.

Referee Rosetti got involved at this point, sending teams back to their benches and ordering spectators to remove the wristbands and stop "arguing" about "the First Amendment thing" or Bow High School would forfeit the game and lose playoff eligibility.

From the parking lot, Fellers held the "Protect Women’s Sports for Female Athletes" that had been on his car windshield during the game, no different from the "bumpers [sic] stickers and political and social messages" he has seen on cars on school property.

Rossetti called him a "f***ing a**hole" and Lamy ordered him to leave school property despite the fact that Fellers "still had to pick up his children and sister" who were at the game.

The next day, Superintendent Kelley told the community about the "form of protest" that halted the game for 10-15 minutes, in violation of "our public conduct on school property policy" to which Desilets had alluded in his pre-game message.

She sent Andy Foote a no-trespass order applicable to all school grounds and any "athletic or extra-curricular event" on or off grounds, which could potentially be extended all season, saying he led a protest "designed to and had the effect of intimidating, threatening, harassing, and discouraging" a student on the opposing team. (The suit doesn't specify whether this player was male.)

Fellers got the same basic order, then two "addendum" notices that list exceptions, without including "games, sports practices, [and] extracurricular activities" but specifically prohibiting pickup and dropoff for high school soccer and "implicitly" for cross-country events.

The Footes wore the pink wristbands again at a Sept. 24 game, after the trespass order expired, under their "long-sleeved shirts," while Moms for Liberty members wore them openly without disruption, the suit says. 

Fellers had to get other people to "shuttle his children to and from" school and extracurriculars under his ban, and couldn't attend the homecoming game to watch his daughter play.

The defendants are chilling the plaintiffs' expression with the threat of future bans during the fall sports season, the suit says. "Plaintiffs find it frustrating and degrading to have their viewpoints, and even presence, prohibited by Bow School District, especially when they see other spectators being allowed to promote their viewpoints and opinions at school events."