A federal judge denied the Bow School District’s request for a jury trial in a lawsuit accusing the district of violating parents’ free speech rights after they wore pink armbands at a girls’ soccer game to protest transgender players.
The lawsuit, brought forth by parents Anthony Foote, Kyle Fellers and Nicole Foote, and Eldon Rash, a family member of Fellers, centers around events that unfolded at a Bow High School girls’ soccer game against Plymouth Regional High School on Sept. 17.
During the game, a small group of parents wore pink armbands featuring “XX,” a symbol referencing the sex chromosomes associated with biological females, to protest the participation of transgender girls on girls’ sports teams. The school issued no-trespass orders against the parents who wore pink armbands.
Attorneys from the Institute of Free Speech represent the plaintiffs.
“We believe that our clients had a First Amendment right to quietly and passively express their support for girls’ sports, and against biological males participating in girls’ sports, by wearing pink wristbands with the letters XX on them,” said Del Kolde, one of the attorneys, last month. “As we spelled out in our First Amended Complaint, the school district only excluded our clients’ viewpoints. None of the parents expressing opposition to the wristbands were asked to leave.”
Judge Steven McAuliffe, overseeing the case at a hearing scheduled for Nov. 21 and 22 will examine evidence and resolve specific factual issues. Both sides have submitted witness lists in preparation.
In addition to denying the school district’s jury trial request, the court rejected the district’s request to use facts from another case involving two transgender athletes, which centers on a state law barring transgender girls from competing on girls’ sports teams from grades 5 through 12.
The school district had hoped to apply findings from the case, but Judge McAuliffe ruled that those facts should not be automatically accepted in the current lawsuit, stating that “Defendants have not shown that those findings are undisputed.”
One of the students involved in the case is Parker Tirrell, a transgender athlete from Plymouth. She was playing in Bow on the day of the protest.
In their amended complaint, the plaintiffs reduced their damage claim from $17.91 per plaintiff to $1 per plaintiff.
Additionally, they referenced the Progress Pride Flag displayed at Bow High School’s music room, calling it an example of viewpoint discretion.
The plaintiffs argue that displaying the flag serves as a passive political commentary on transgender inclusion, similar to their protest with the pink armbands, though from a different viewpoint.
“Displaying the Progress Pride flag amounts to passive sociopolitical commentary on the issue of transgender inclusion and women’s sex-based rights, similar to wearing a pink wristband with the letters XX, although from a different viewpoint,” wrote attorneys for the plaintiff.
Lt. Phil Lamy of the Bow Police Department was initially named in the lawsuit alongside Superintendent of Schools Marcy Kelley, Principal Matt Fisk, Athletic Director Mike Desilets, and soccer referee Steve Rossetti but he has been dropped from the amended complaint.
Attorneys for the plaintiffs said body camera footage showed Lamy acted solely on school staff’s instructions while escorting Fellers from the scene.
At the hearing, the plaintiffs will argue first, followed by the defendants. If the court finds the issue is not moot, the hearing will proceed with the defendants presenting their First Amendment claims.
After the hearing, the court will consult with both sides to establish a pretrial schedule and a date for a bench trial.
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