The Warren B. Rudman U.S. Courthouse on Pleasant Street in Concord, on Oct. 8, 2024. (Dana Wormald | New Hampshire Bulletin)
The standoff began over email.
A day before the Bow High School junior varsity girls’ soccer team was set to face off on home turf against the Plymouth Regional High School’s team – a team that included a transgender female player – Bow’s athletic director urged parents not to demonstrate against her.
“It is the expectation of every fan to maintain a positive attitude, to treat players, coaches and officials with respect…” Michael Desilets wrote on Sept. 16. He added elsewhere: “Please understand that any inappropriate signs, references, language or anything else present at the game will not be tolerated.”
The email was sent for a reason, Bow officials say: They had seen a Facebook post by a parent who urged that spectators “show solidarity” with female players in opposition to transgender girls participating on girls sports teams.
But Anthony Foote, the parent who wrote that post, did not agree with Desilets’ email.
“I’m a leader, and a real leader doesn’t stand by while their players are thrown into harm’s way,” he wrote back the next morning. “You don’t let biological males – who are stronger, faster, and more physically dominant – compete against women.”
At the game that evening, Sept. 17, Foote and three other parents were asked to leave and later served no trespassing orders after displaying pink armbands protesting transgender girls in girls’ sports while the game commenced. Now, they’re suing in federal court to overturn the no trespassing orders on First Amendment grounds.
On Tuesday, Judge Steven McAuliffe of the U.S. District Court of New Hampshire gave the parents a partial, short-term victory, restoring the ability of one parent to continue going to his daughter’s soccer games as long as he refrained from any protest. The other parents’ no trespassing orders have already expired.
But McAuliffe declined to rule on more elemental questions: Are school districts allowed to restrict the speech of parents who protest against transgender athletes’ participation in sports? Or do those protests qualify as harassment of students that justifies action?
For that, McAuliffe said, lawyers of both sides will need to establish clearer facts. The case has now been pushed back as both sides prepare to call witnesses to a hearing sometime in November.
The lawsuit, brought in part by the conservative legal group Institute for Free Speech, touches on a topic that has divided and animated state lawmakers this year: the eligibility of transgender girls to participate in girls’ sports.
Gov. Chris Sununu signed a law in July that explicitly prohibits that from happening in girls’ sports teams in grades 5 to 12. That law has been partially frozen by a different U.S. District Court judge, Landya McCafferty, who ruled in September that two transgender students may keep participating in girls sports while the law is adjudicated.
The Bow case is directly related: One of the students permitted by the court to continue playing, Parker Tirrell, was the transgender girl who was playing against Bow the day of the protest.
Court filings on both sides indicate that Foote and three other parents, Nicole Foote, Kyle Fellers, and Eldon Rash, wore the pink armbands and then were told by the Bow athletic director, school superintendent, and a police officer to remove them. One parent, Fellers, objected to that order and was eventually asked to leave. Fellers also attempted to hold a sign that said “Protect Women Sports for Female Athletes” before he was asked to leave. While both Footes and Rash were given temporary no trespassing orders, the district gave Fellers a permanent one that prevented him from attending any other home or away games this season.
The school has also designated a protest zone on its soccer fields for future protests. Any pink armbands will be allowed in that zone for the 30 minutes before or after a game, but not during one, the new policy states.
In the court hearing Tuesday, lawyers for the plaintiffs argued that the trespassing orders were unconstitutional, that the plaintiffs were not directing their protest at Tirrell specifically, and that their actions were lawful free speech and not disruptive to the game.
Attorneys for the school district contested that, arguing the protest was intended to target Tirrell and that the school district took appropriate action to prevent a disruption that could have dealt emotional harm to Tirrell as she played.
“We can’t identify everything before it happens,” said Brian Cullen, an attorney for the school district, arguing that the district was right to ban the armbands before an actual disruption occurred.
Addressing the lawyers, McAuliffe said the case hinges on the question of whether a sports game constitutes a limited public forum. Court precedents have established that government entities – such as school districts – can impose some free speech restrictions in limited public forums, such as city halls, school board meetings, or public school classrooms.
In those forums, the government entity may impose a content-based restriction, meaning they may ban all mentions of a topic. But it may not impose a viewpoint-based restriction, meaning a ban on one point of view within that topic.
One central question raised by McAuliffe is whether the Bow School District, in its email to parents, was imposing a broad, content-based free speech restriction barring all demonstrations either for or against transgender sports rights, or whether the district was really barring one specific side of that debate.
A lawyer for the school district argued that the ban was universal, and said the school district would have equally disallowed a protest in favor of transgender rights.
The plaintiffs strongly disagreed with that. “We all know this wouldn’t have happened if someone was wearing a pride pin,” said Endel Kolde, an attorney with the Institute for Free Speech who represented the plaintiffs.
He pointed to a line from the district’s no-trespassing order against Anthony Foote, in which Superintendent Marcy Kelley said one of the reasons the order was being issued was “to protest the participation of a transgender female student on the other team.”
“That is absolutely viewpoint (discrimination),” Kolde said. “They put it in writing on the official document.”
McAuliffe also questioned whether the parents meant to target Tirrell or protest on the issue broadly. In his Facebook post encouraging the demonstration ahead of the game, Andy Foote wrote: “On September 17, 2024, the BHS XX Lady Falcons soccer team will be required to face a team that includes a biological male on the roster. Despite Governor Chris Sununu’s stance on protecting female athletes, the Federal Court has failed to enforce this decision, leaving our girls vulnerable.”
The plaintiffs said the protest was against the school administration and the courts for allowing the girls to play, not Tirrell personally. The school district countered that the protest was clearly personal.
“For them to say that this has nothing to do with the trans athlete is farcical,” said Cullen.
The First Circuit Court of Appeals – which is based in Boston and has jurisdiction over New Hampshire – has issued a recent ruling that upheld the ability of a school district to prohibit a student wearing a shirt to school that opposes transgender rights. The shirt read, “There Are Only Two Genders,” and the court found that the school district was justified in banning it in the interest of protecting its transgender students from harassment and bullying.
But whether that precedent also applies to adults making similar protests outside of a school building will be a key consideration of this case, McAuliffe suggested.
“How far can you go from keeping adults from saying things that students couldn’t say?” he said.
It was not immediately clear when the next hearing would take place; attorneys on both sides met after the hearing to decide.
“Legally, I think it’s nuanced, and it’s a jump ball,” McAuliffe said.