Federal judge says NH school allowed to ban parent protests of trans-identified male athletes

United States District Court Judge Steven McAuliffe denied the preliminary injunction requested by plaintiffs Kyle Fellers, Anthony Foote, Nicole Foote, and Eldon Rash. He wrote that while the parties in the case "agree that plaintiffs’ conduct in displaying the symbolic wristbands and exhibiting signs qualifies as speech protected by the First Amendment," courts have "generally concluded that school-sponsored events, like high school soccer matches, constitute a 'limited public forum.’"

The 45-page order concluded, "the School District defendants reasonably determined that the symbols used by plaintiffs conveyed a message that targeted a specific transgender student on the visiting team (as well as any transgender students present at the game) and demeaned a core immutable characteristic of their personal identity – that is gender and gender identity."

McAuliffe wrote that "having reasonably concluded that such a message might 'poison the educational atmosphere' sought to be fostered at school-sponsored athletic events and cause potentially serious harm to the participating transgender athlete as well as other transgender students, defendants reasonably and lawfully regulated plaintiffs’ speech."

"Plaintiffs are, of course, free to display their symbols and signage in any public forum available for such purposes. But they may not do so at Bow High School-sponsored activities in contravention of the reasonable restrictions imposed by the School District." McAuliffe has yet to rule on a permanent injunction.

Anthony Foote told the NH Journal after the ruling, "What was our offense? Supporting girls’ sports and defending biological reality? This ruling is a slap in the face to every parent who believes schools should be a place of fairness, not political indoctrination. The judge openly admitted that Pride flags are allowed because they promote ‘inclusion,’ but wristbands defending women’s sports are banned because they might ‘offend’ someone. That’s viewpoint discrimination, plain and simple — and it’s unconstitutional."

Del Kolde, the senior attorney with the Institute for Free Speech representing the plaintiffs, said, "We strongly disagree with the Court’s opinion issued today denying our request for a preliminary injunction. This was adult speech in a limited public forum, which enjoys greater First Amendment protection than student speech in the classroom. Bow School District officials were obviously discriminating based on viewpoint because they perceived the XX wristbands to be ‘trans-exclusionary.’ We are still evaluating our options for next steps."

Harmeet Dhillon, who is serving as the United States assistant attorney general for the civil rights division under the Trump administration, said, "This ruling is unconstitutional and will not stand." She said her office would be examining the ruling "closely."

"Every father has not only a right but also a duty to stand up for his daughters, and the right to free speech is not curtailed by subjective 'feelings.’"