Judge Blocks Wristband Protest Targeting a Student

Two fathers who oppose allowing transgender athletes to play high school sports won't be allowed to wear pink wristbands marked "XX" to games while their lawsuit against the school district continues, a federal judge ruled Monday.

Kyle Fellers and Anthony Foote were banned from school grounds in Bow after wearing the wristbands to a soccer game in September that included a transgender girl on the opposing team. They later sued the school district, and while the no-trespass orders have since expired, they asked the judge to allow them to carry signs and wear the wristbands featuring the symbol for female chromosomes at school events while the case proceeds.

Both men testified at a hearing in November that they didn't intend to harass or otherwise target transgender athlete Parker Tirrell, and their attorneys argued they did nothing more than silently express their support for reserving girls' sports for those assigned female at birth.

But in denying their motion Monday, U.S. District Court Judge Steven McAuliffe said the parents' "narrow, plausibly inoffensive" intentions weren't as important as the wider context, and that adults attending a high school athletic event do not enjoy a First Amendment protected right to convey messages that demean, harass or harm students.

"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," he wrote. "And, that broader messaging is what the school authorities reasonably understood and appropriately tried to prevent."

School officials described receiving strongly-worded emails from Foote in which he called himself a "real leader" who was prepared to take action and seeing his social media posts urging others to attend the game. In the days leading up to the game, another parent told school officials she overheard others talk about showing up to the game wearing dresses and heckling Tirrell.

"This was organized and targeted," Superintendent Marcy Kelley said.

Brian Cullen, an attorney for the school district, said Monday he was pleased with what he called a well-reasoned ruling that affirms that school districts can and should protect students from harassment from adults on school grounds. And he noted that the ruling doesn't prevent the plaintiffs from expressing their views in other ways.

"It simply prevents them from bringing their protest to the sidelines of a game being played by kids. That should not be a controversial limitation," he said.

Del Kolde, an attorney for the plaintiffs, said he strongly disagrees with the ruling.

"This was adult speech in a limited public forum, which enjoys greater First Amendment protection than student speech in the classroom," said Kolde, senior attorney for the Institute for Free Speech. "Bow School District officials were obviously discriminating based on viewpoint because they perceived the XX wristbands to be 'trans-exclusionary.'"

After the ruling was issued, the plaintiffs filed a notice saying they do not intend to enter more evidence before the judge makes a final decision.

Meanwhile, Tirrell and another student athlete are challenging the state law that bans transgender athletes in grades 5 to 12 from teams that align with their gender identity, as well as President Donald Trump's Feb. 5 executive order, "Keeping Men Out of Women's Sports." A federal judge ruled in their case that they can play sports during the ongoing lawsuit that seeks to overturn the law.