By Gary Chester, Senior Writer
At a time when free speech cases involving school districts present novel legal issues, the U.S. District Court for the District of New Hampshire has been presented with a controversy at the intersection of free speech and transgender rights. In Fellers v. Kelley, 2025 U.S. Dist. LEXIS 70176 (D. N.H. April 14, 2025), a federal district court considered the First Amendment right of spectators at a girls’ high school soccer game to wear wristbands with an anti-transgender symbol.
“XX” Marked the Spot
The controversy concerns Parker Tirrell, a transgender girl and a sophomore soccer player at Plymouth High School in New Hampshire. She was diagnosed with gender dysphoria and started taking medications to block male puberty in May 2023. She obtained a preliminary injunction permitting her to play on the girls’ soccer team in Tirrell v. Edelbut, 748 F. Supp. 3d 19 (D. N.H. 2024). The court ruled that Tirrell was likely to prevail on the merits in her challenge to N.H. Rev. Stat. Ann. 193:41-42, a 2024 law prohibiting transgender girls from playing on girls’/women’s public-school sports teams.
Prior to a soccer match in which Bow High School (BHS) would host Plymouth High, the parents of a few students on the BHS team were concerned that their daughters would be competing against a biological male. Nicole Foote, the mother of a BHS player and a plaintiff in the case, complained to BHS Athletic Director Mike Desilets about the unfairness and the injury risks associated with a biological boy competing against girls. Desilets explained that the court’s injunction prevented him from taking any action.
A few days before the game, another plaintiff, Kyle Fellers, purchased several pink wristbands. He gave them to Foote, who wrote “XX” and other messages on them. According to the testimony of Marcy Kelly, the superintendent of schools for the district that includes BHS, the “XX” symbol conveys a well-understood anti-trans message. Kelly noted that the symbol is actively used by Riley Gaines, a former collegiate athlete best known for having lost an NCAA swimming competition to a transgender competitor.
Shortly before the game, Kelly expressed concerns for the safety of Tirrell and her teammates because the protest might be directed specifically at one student-athlete. The BHS Athletics Handbook contains provisions instructing fans to cheer for their team as opposed to cheering against the opposing team and directing them not to use the names or numbers of opposing teams or try to communicate directly with other players. It also prohibits threats, harassment and intimidation at sporting events.
Based on the wristbands and related emails, Kelly sent an email to the parents of girls on the Bow team on the night before the game. It stated in part that “any inappropriate signs, references, language or anything else present at the game will not be tolerated.” One of the leaders of the protest, plaintiff Andy Foote, responded with an email critical of Kelly. It stated in part: “I’m a leader, and a real leader doesn’t stand by while their players are thrown into harm’s way … And you don’t sit around waiting for someone to get hurt before you take action.”
Foote waited until halftime to take any action because he did not want to miss the first half of the game. At halftime, he placed a Riley Gaines poster on his Jeep in the parking lot with a message reading, “Save Women’s Sports.” Foote and about seven others put on the pink wristbands bearing the “XX” message and wore them when the second half started. They did not shout or otherwise call attention to themselves. However, Desilets approached Fellers and told him that he had to remove the wristbands or leave the game. Fellers implausibly told Desilets that the wristbands were meant to support the fight against breast cancer.
The police were summoned, and the game was delayed. The protesters removed their wristbands when the officers arrived, but Fellers’ former father-in-law, Eldon Rush, took Fellers’ wristband and put it on his own wrist. The referee, who did not know anything about the protest, told Rush to remove the wristband or he would stop the match. After a delay of several minutes, Rash removed his wristband, and the game resumed.
After the game, Fellers positioned the Riley Gaines poster in the parking lot so that Tirrell and her teammates would see it from their team bus when they left. A police officer told Fellers that school officials had expelled him from the property; Fellers told the officer he would have to arrest him, but Fellers eventually acquiesced and left the property. The controversy might have ended there, but it did not.
The Free Speech Battle Goes into Overtime
Fellers and (Andy) Foote subsequently received “No Trespass” orders for violating the school’s policy. Both were banned from attending after-school events—Foote for one week, Fellers for one year. In September 2024, four protesters filed an action against the school district for infringing their First Amendment rights.
The plaintiffs sought a preliminary injunction to prevent the school district from enforcing any policies that might prevent the plaintiffs from attending BHS extracurricular events and “non-disruptively expressing disfavored viewpoints on political or social issues, including protesting against allowing biological boys playing in girls’ and women’s sports, by silently wearing a pink wristband on the sidelines or displaying a sign in the parking lot.”
Judge Steven McAuliffe (widower of Christa McAuliffe and an appointee of President George H.W. Bush in 1992), observed that in a limited public forum such as the BHS grounds, restrictions on speech imposed by a governmental entity “must be reasonable in light of the purpose served by the forum” and “must not discriminate against speech on the basis of viewpoint.”
When analyzing a claim asserting a violation of the First Amendment, courts generally apply a three-step test as set forth in Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788, 797 (1985). First, the court must determine whether the plaintiffs’ conduct is protected speech. In Fellers, the parties have agreed that the act of displaying symbolic wristbands and exhibiting signs qualifies as speech.
Second, the court must determine whether the forum is public or nonpublic. McAuliffe noted that school-sponsored events, such as high school soccer matches, constitute a “limited public forum.” The parties agreed that the Bow soccer field and its immediate environs qualify as a limited public forum. In a limited public forum, the government’s restrictions on speech “must be reasonable in light of the purposed served by the forum” and “must not discriminate against speech on the basis of viewpoint.”
The court observed that that high school athletics serve as an extension of the classroom and are, at their core, “scholastic.” The U.S. Supreme Court has long held that schools have a special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Doe v. Hopkinton Pub. Schs, 19 F.4th 493, 505 (1st Cir. 2021), quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, (1969).
Judge McAuliffe found for the school district on this issue, based on multiple precedents holding that schools may ban passive messages by students at the school which target no specific student if the expression is reasonably interpreted to demean a characteristic of personal identity or if the demeaning message is reasonably forecasted to “poison the educational atmosphere” due to its serious negative psychological impact on students with the demeaned characteristic.
The court rejected the plaintiff’s argument that the school district could not reasonably conclude that their symbolic wristbands communicated a message demeaning the gender identities of transgender students in general or Tirrell in particular—only that they opposed transgender girls or women playing in girls’ or women’s sporting events. However, the law looks at the reasonable understanding of the school district and not the subjective intent of the message conveyed by protesters. Here, the school officials reasonably interpreted the plaintiffs’ message as a demeaning and harassing assertion with respect to the gender identity of certain students.
Judge McAuliffe wrote: “The message generally ascribed to the XX symbol … can reasonably be understood as directly assaulting those who identify as transgender women … [it] can be reasonably be understood to include assertions that there are ‘only two genders,’ and those who identify as something other than male or female are wrong and their gender identities are false, inauthentic, nonexistent, and not entitled to respect.” The court added that because gender identity is a deeply rooted personal characteristic, the demeaning conduct “strikes a person at the core of his being.” Judge McAuliffe noted that the U.S. Supreme Court has regularly held that the state has a compelling interest in protecting the physical and psychological well-being of minors.
Were the School District’s Restrictions Viewpoint Neutral?
The third prong of the free speech test is whether the justifications for excluding speech from the limited public forum satisfy the requisite standard, which is whether the restriction is viewpoint neutral. The court ruled in favor of the school district on this issue because the district’s policy was not based on the plaintiffs’ viewpoint but on its effects on students. BHS took no position on whether transgender athletes should participate in girls’ sports. The school did, however, have a position with respect to adult parents targeting a visiting student-athlete at a school soccer match with demeaning, hurtful, and harassing speech based on her gender identification. Since the district reasonably prohibited any harassing, demeaning or intimidating speech directed at any student, regardless of the underlying cause or idea, the restriction was policy neutral.
Having found that the school district had a compelling interest in protecting students from harassment and that the restrictions were content neutral, the court denied the protesters’ application for a preliminary injunction. On May 2, the plaintiffs filed a notice of interlocutory appeal to the First Circuit.
The case exemplifies the unique nature of the public school as a forum for free speech. In National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977), the U.S. Supreme Court ruled in a 5-4 decision that Nazi supporters were entitled to a permit allowing them to march in a public park in Skokie, Illinois. The plaintiffs had chosen to march in Skokie because many Holocaust survivors lived there. The majority opinion brushed aside concerns that the survivors might suffer adverse psychological effects if they heard Nazis marching and chanting outside their homes.
In contrast, there are numerous decisions permitting school districts to limit speech that would likely disrupt the core purpose of schools or would harm students. In an age in which teenage depression rates have increased significantly, perhaps fueled in part by the growth in social media messaging, courts continue to recognize that school districts have a right to adopt reasonable policies to protect the welfare of their students.
